SZQPZ v Minister for Immigration
[2019] FCCA 2783
•2 October 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZQPZ v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 2783 |
| Catchwords: ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that it was unreasonable and failed to have regard to all the evidence. |
| Legislation: Migration Act 1958, ss.36, 474 |
| Cases cited: SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235 |
| Applicant: | SZQPZ |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2676 of 2015 |
| Judgment of: | Judge Cameron |
| Hearing date: | 20 August 2019 |
| Date of Last Submission: | 20 August 2019 |
| Delivered at: | Sydney |
| Delivered on: | 2 October 2019 |
REPRESENTATION
| Counsel for the Applicant: | Ms T Baw and Ms R Kumar |
| Solicitors for the Applicant: | Craddock Murray Neumann |
| Solicitors for the Respondents: | Mr A Moss of Clayton Utz |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2676 of 2015
| SZQPZ |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
INTRODUCTION
The applicant is a citizen of Bangladesh who arrived in Australia on 29 September 2010. On 25 October 2010 he lodged an application for a protection visa with what is now the Department of Home Affairs (“Department”) alleging that he feared persecution in Bangladesh because he was a Buddhist and because of his imputed political opinion. That application was unsuccessful, as were subsequent applications for merits review before the Refugee Review Tribunal (“RRT”) and for judicial review.
On 13 August 2013 the applicant lodged a second application for a protection visa, an application which was accepted as valid as a result of the Federal Court’s decision in SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235. A delegate (“Delegate”) of the first respondent (“Minister”) refused that visa application on 30 April 2014 and on 27 May 2014 the applicant applied to the second respondent (“Tribunal”) for review of that decision. He was unsuccessful before the Tribunal and has applied to this Court for judicial review of its decision.
In this judicial review proceeding the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
BACKGROUND FACTS
As summarised by the Tribunal, the applicant had made the following claims in support of his first protection visa application:
a)he feared persecution in Bangladesh arising from his religious beliefs as a Buddhist monk and as the son of a respected leader of the Buddhist community in his local area;
b)his home area was “dominated” by the Bangladesh Nationalist Party (BNP) and Jamaat-i-Islami;
c)
his father protested against the activities of the BNP and
Jamaat-i-Islami and in response they threatened and injured him. This also led terrorists to vandalise his father’s shop and to seriously injure him. The applicant was threatened with kidnapping and the murder of his family if the matter was reported. The applicant was then kidnapped and held until a ransom of Tk 200,000 was paid;
d)for his safety his father sent him to His Holiness Sangharaj Dharmasen Mahathero, the abbot of a temple in Patiya. However he felt he was being followed so his father and the abbot sent him to Sri Lanka where he studied for six years;
e)he made three return visits to Bangladesh to see family, one in 2005 and two in 2009. On the first occasion he was attacked with sticks. On the second and third he was not able to visit his home area because of safety concerns; and
f)in 2006 his cousin was kidnapped by (Islamic) fundamentalists and killed. His father reported this to the police but was forced to flee the village. His family members disappeared and he had no contact with them.
As summarised by the Tribunal, the applicant made the following claims in support of his second protection visa application:
a)he faced a real risk of harm in Bangladesh because of his Buddhist beliefs and practices;
b)Bangladesh is an Islamic country which does not tolerate religious minorities;
c)in his statutory declaration of 23 April 2014 he added that:
i)Muslims tortured Buddhists with government support, setting fire to Buddhist temples, houses in the village of Ramu, Cox’s Bazar, and had tried to kill monks and lay Buddhists;
ii)in October 2012 he ‘came to know’ that his family were living in Myanmar. He asked them to return to Bangladesh. In February 2013 they left Myanmar and moved into a rented house where one of their relatives lived. He sent them some money from Australia;
iii)in April 2013, his father lodged an “allegation” against the local Jamaat-i-Islami strongman and his associates for occupying his family home. The police investigated but, as a result of the strongman’s influence and wealth, they took no action;
iv)about a month after they lodged the case they were threatened by two Muslim men who said that if it was not withdrawn, the whole family would be in trouble and could die;
v)he would be targeted by Muslims because of his father’s protests and had nowhere to live as the family home had been seized;
d)on 29 May 2015, he appeared before the Tribunal and added that:
i)he had not been able to express himself properly in his interview with the Delegate because of difficulties with the interpreter;
ii)the strongman was a terrorist who was involved in sabotaging properties and land as well as the abduction and rape of young girls. The strongman had high-level connections and his people operated as a gang. Protests against him were met with abuse, threats, abduction and torture. Because of his power, the police did not take action when complaints were made;
iii)the only reason people wished to harm him was because his father was the main leader of the local Barua community;
iv)he returned to Bangladesh three times, (July-September 2005, May-June 2009 and November-December 2009). On the first visit to Bangladesh in 2005 he stayed with his parents and was attacked outside a market by four or five people but was able to run away. In 2009 he stayed in a temple in Patiya because it was not safe to visit his parents. When asked why he returned in May 2009 if the situation was so bad, he said he wanted to see his parents at all costs. He did not suffer any harm on the second or third visits;
v)on his first 2009 visit he had asked the temple’s elder priest about his parents but the priest had little information. When asked by the Tribunal why the priest would not know about his father, given that the applicant had claimed he was a prominent member of the community, the applicant said that while everyone knew each other in his village, his father did not hold a prominent position, had no network and most villagers were uneducated. When asked again, the applicant claimed that the priest knew of his family’s problems but did not have direct contact with his father. The temple priest knew the village priest and in this way had come to hear of his father;
vi)when asked the identity of the Patiya temple priest the applicant said it was Dharma Shen Mahathera, the abbot to whom his father had sent him in 2000 and the most senior Buddhist cleric in the country. His father had contacted the village priest who arranged to send him to the Ven. Mahathera. When the Tribunal asked why, when he had contacted the abbot before his return in 2009, the abbot had not known what had become of his parents, the applicant claimed that priests do not wish to become involved with the problems of individuals;
vii)when the Tribunal said that it found it difficult to understand why he could not have discovered what had happened to his family through the head of the Buddhist faith in Bangladesh, given that his family was being cared for in Myanmar by a Bangladeshi Buddhist monk, the applicant claimed that generally priests, including the Ven. Mathathera, did not wish to know or involve themselves with individual cases;
viii)there was no public report that his family had run away but the strongman and his supporters would never allow the facts to come out;
ix)he had urged his family to return to Bangladesh from Myanmar. He had not heard of his family suffering any harm whilst in Myanmar but they could not settle down or speak the language, the atmosphere was foreign and they could not live comfortably there; and
e)the applicant’s representative submitted that there was recent country information indicating that the killings of Muslims in Myanmar could affect the Buddhist minority in Bangladesh.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under s.36(2)(aa) of the Act, being the only criterion the Tribunal could consider. The Tribunal’s decision was based on the following findings and reasons:
a)the Tribunal accepted that the applicant was a citizen of Bangladesh and a member of the country’s Barua Buddhist community. The Tribunal also accepted that he had lived in Sri Lanka from 2001 to 2007, in Thailand from 2007 to 2010 and that he had made three return visits to Bangladesh in 2005 and 2009;
b)the Tribunal found it difficult to believe that local Muslims – who were said to be followers or employees of the Jamaat-i-Islami strongman – could be so motivated to harm him over his connection with his father that they would kidnap him in 2000 and attack him shortly after he returned to the village in 2005 but would not turn their attention to his father while he and the family were living in the same village between 2001 and 2005. The applicant’s explanation – that his family were in fact beaten although he could not provide any circumstantial information to corroborate this claim because it was painful for him to recall and his parents would not speak about it – did not satisfy the Tribunal;
c)the Tribunal noted that the applicant had advanced differing accounts of being attacked during his return visit in 2005. In the hearing before the RRT, he had claimed that the group attacked him with sticks but he had been able to run away. Before the Tribunal he claimed that they pursued him for some distance but then gave up, allowing him to escape;
d)the Tribunal did not accept that the applicant’s family were forced to flee in 2006 because his cousin was murdered following a demonstration organised by his father. The media article submitted to the RRT attributed the death to a commercial dispute and the Tribunal did not accept the applicant’s assertion that the strongman and his followers prevented the real story from being published;
e)the Tribunal found it implausible that the applicant had been unable to contact his family for six or seven years while they were in hiding. The Tribunal thought the applicant’s explanation, that this was because they did not want to worry him and were afraid of prompting him to return to Bangladesh where he would be in danger, made little sense if they had found safety in Myanmar;
f)
the Tribunal did not believe that the applicant had tried unsuccessfully to contact his family while they were in Myanmar. He had claimed at the hearing that on his return trips to Bangladesh in 2009 he had stayed in the temple in Patiya with the
Ven. Mahathera but the Tribunal was not satisfied that the
Ven. Mahathera would not have known, or could not easily have discovered, that a person well known as a defender of the Buddhist community in his village, who had already entrusted the applicant to the abbot’s care, had gone with his family to nearby Myanmar and was being assisted there by a Bangladeshi Buddhist monk;
g)the Tribunal found it difficult to understand why the applicant would have returned to Bangladesh twice in 2009 if he thought that he was in danger (following a narrow escape from harm in 2005);
h)the Tribunal had doubts about the applicant’s account of his family’s alleged return to Bangladesh from Myanmar in February 2013. At the hearing he claimed they did so at his urging, after he discovered where they were;
i)the Tribunal had a number of doubts about the truth of the claims in the applicant’s statutory declaration of 23 April 2014, such as that he provided financial support for his family after they returned to Bangladesh in 2013. It also had difficulty believing that he persuaded his father to engage a lawyer to lodge a complaint against the local strongman for occupying the family home and land, that the police investigated but took no action, and that shortly afterwards the family were threatened;
j)the Tribunal was not satisfied that the applicant’s father had been targeted by local Muslims, whether or not directed by the local Jamaat-i-Islami strongman, or that he and other family members suffered harm at their hands. It was not satisfied that the applicant was kidnapped in 2000 or that he was sent away to study, first in Patiya and later in Sri Lanka and Thailand, to secure his safety;
k)the information before the Tribunal did not indicate that the applicant’s own quite distinct Barua Buddhist community had been targeted. It did accept that there were some reports and evidence of recent growth in Islamic fundamentalism but this did not indicate that the Barua Buddhist community had been subjected to systematic or frequent harm; and
l)the Tribunal did not accept that the applicant’s father was seen as an opponent of the local strongman in particular or of the BNP and Jamaat-i-Islami more generally. The applicant did not claim that he himself was ever personally involved in political activity of any kind when he was in Bangladesh and, given that he was only thirteen years of age when he left, the Tribunal was not satisfied that it was plausible that he had a political profile or was seen as holding a political opinion against Islamic fundamentalism or that, if he returned, would do anything to establish a political profile for himself.
THE PROCEEDING IN THIS COURT
In his further amended application the applicant alleged:
The Tribunal fell into jurisdictional error by making adverse credibility findings against the Applicant at D[27] that were: (i) legally unreasonable; and (ii) failed to take into account the evidence.
Particulars
(a)The Tribunal made bare assertions of “implausibility” to disbelieve events or claims unsupported by any logical or probative evidence.
(b)The Tribunal’s reasons relied on unwarranted assumptions with no foundation in logic, evidence or any material relied upon.
(c)The Tribunal failed to weigh the significance of any inconsistencies or discrepancies in light of the applicant’s problems with the interpreter in the first Tribunal hearing.
(d)The Tribunal drew inferences lacking in any logical or probative basis or connection to the material.
RELEVANT AUTHORITIES
Unreasonableness
The task of the Court, when it is alleged that a decision is legally unreasonable, is to ask whether the decision-maker’s exercise of power was beyond power for that reason: Minister for Immigration & Border Protection v SZVFW (2018) 92 ALJR 713 at 732 [78]-[79] per Nettle and Gordon JJ. In Minister for Immigration & Citizenship v Singh (2014) 231 FCR 437 at 445 [43], [44], the Full Court of the Federal Court observed that in Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 the High Court said that there is a presumption of law that Parliament intends an exercise of power to be reasonable and that legal unreasonableness can be a conclusion reached by a supervising court:
a)after the identification of an underlying jurisdictional error in the decision-making process; or
b)can be “outcome focused” where the supervising court cannot identify how the decision was arrived at and, without necessarily identifying an underlying jurisdictional error, the exercise of power is seen by that court as lacking “an evident and intelligible justification”. For instance, it may be discernible in a decision because no reasonable person could have arrived at it: Minister for Immigration & Border Protection v SZVFW at 733 [82] per Nettle and Gordon JJ.
In connection with the “outcome focused’ approach the Full Court of the Federal Court said in Singh’s case:
… where no reasons for the exercise of power, or for a decision, are produced, all a supervising court can do is focus on the outcome of the exercise of power in the factual context presented, and assess, for itself, its justification or intelligibility bearing in mind that it is for the repository of the power, and not for the Court, to exercise the power but to do so according to law. … (at 446 [45])
In Minister for Immigration & Border Protection v SZUXN (2016) 69 AAR 210 at 219 [44] Wigney J described that situation as:
… a conclusion reached by a supervising court that the outcome of the exercise of power was arbitrary, capricious or outside the range of possible, acceptable outcomes which are defensible in respect of the facts and law.
The concept of legal unreasonableness cannot be minutely, precisely or comprehensively defined: Minister for Immigration & Border Protection v Stretton (2016) 237 FCR 1 at 5-6 [9]-[11] per Allsop CJ. Whether a decision is properly to be considered unreasonable by reference to its outcome, rather than because of specific errors which affect it, will be decided by reference to the terms, scope and policy of the relevant statute and the values drawn from the statute and the common law relevant to the decision. These include fundamental values that attend the proper exercise of power: a rejection of unfairness, of unreasonableness and of arbitrariness; equality; and the humanity and dignity of the individual. The weight and relevance of any relevant values will be approached by reference to the statutory source of the power in question. His Honour went on to state:
… The task is not definitional, but one of characterisation: the decision is to be evaluated, and a conclusion reached as to whether it has the character of being unreasonable, in sufficiently lacking rational foundation, or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious, or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as an exercise of that power. … (at 5-6 [11])
It has been observed that unreasonableness and illogicality can overlap: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at 647 [128]. A decision based on, or flowing from, irrational and illogical reasoning or factual findings is likely to be legally unreasonable and beyond power: SZUXN at 220 [49]. However, if particular findings or reasoning on the way to the decision-maker’s ultimate conclusion and decision are challenged on the basis of illogicality or irrationality, jurisdictional error will not be made out unless it is shown that the findings could not have been made, or the reasoning could not have been employed, by a reasonable or rational decision-maker: SZUXN at 220 [50]. Further, irrationality or illogicality in an intermediate finding of fact will not support a finding of jurisdictional error if it was immaterial or not critical to the ultimate decision: SZUXN at 221 [55]. In Acuna Plaza v Minister for Immigration, Citizenship & Multicultural Affairs (No.2) [2019] FCA 424 Allsop CJ summarised it thus:
… it is enough for the finding to have been carried into the decision, that it flowed into the decision or affected the decision in a not immaterial way, or is sufficiently part of the reasoning to the outcome, or is a finding on which the ultimate conclusion was predicated, not being severable for the decision to be seen as tainted jurisdictionally. … (at [17])
Findings of fact not immune from legal error
A finding of fact based simply upon a conclusion that a witness is not to be believed is no more immune from judicial scrutiny than any other finding of fact: SZVAP v Minister for Immigration & Border Protection (2015) 233 FCR 451 at 456 [20]. Findings of fact, including inferences, must be based on probative material and logical grounds: WAIJ v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 80 ALD 568 at 574 [22]. To act according to law the Tribunal must carry out its decision-making function rationally and reasonably, not arbitrarily: WAIJ at 573 [21]. In SZLGP v Minister for Immigration & Citizenship [2008] FCA 1198 at [25] Gordon J stated that:
Notwithstanding the breadth of the Tribunal’s discretion to make weight and credibility determinations, the requirement described in WAIJ to make those determinations “judicially” imposes limits that credibility and weight determinations be made rationally and logically, and be articulated properly. …
Grounds on which such findings may be challenged include:
a) failure to afford procedural fairness;
b) reaching a finding without any logical or probative basis;
c) unreasonableness; and/or
d) jurisdictional error by:
i)basing a credibility finding on a false premise; or
ii)reliance on unwarranted assumptions such that the question raised by the material before the decision-maker is not considered.
(CQG15 v Minister for Immigration & Border Protection (2016) 253 FCR 496 at 508-509 [38], SZVAP at 457 [22], [23], BZD17 v Minister for Immigration & Border Protection (2018) 263 FCR 292 at 303 [36]).
Lack of persuasion that events occurred cannot be translated into a finding that they did not occur in the absence of material sufficient to ground such a conclusion: WAIJ at 577 [40].
CONSIDERATION
The detail of the errors alleged against the Tribunal was not included in the further amended application but was introduced in submissions.
Beatings suffered by the applicant’s family
Submissions
The applicant submitted that the first of several errors committed by the Tribunal concerned his evidence regarding beatings said to have been suffered by his family. His argument was based on two passages. The first is found in para 27 of the Tribunal’s reasons for decision:
... the Applicant said he had heard the whole family were beaten but he was unable to provide any circumstantial information about this presumably dramatic and memorable incident, suggesting variously that it was painful for him to recall it and that his parents would not tell him about such things. I am not satisfied he could be in ignorance about such an incident had it occurred, even making allowance for the passage of the years and the fact that he was a teenager living in Sri Lanka, and I find the explanation unconvincing. (emphasis added)
The second passage is found in the applicant’s transcript of the Tribunal hearing (“Applicant’s Transcript”) which records the following exchanges between the Tribunal member and the applicant and his interpreter:
MR MULLIN: Well, if we just go through it again. You left in 2001 and your parents were still in the village.
THE INTERPRETER: Yes.
MR MULLIN: And you came back in July 2005 and stayed for three or four months, and they were still in their home in the village, is that right?
THE INTERPRETER: What I remember that I - it was not for three or four months. It was few - few weeks or whatever we did - it was - it was few and whenever I - I - I went, when I went there, they were still living in terror.
MR MULLIN: We'll get to whether they were living in terror or not at the moment, but if he could just focus on the question. They were still living in their home in the village, is that correct?
THE WITNESS: Yeah, that's fine.
THE INTERPRETER: That's right.
MR MULLIN: Right. Mr [SZQPZ], you say, "Well, I had to leave in 2001 because I was afraid of being killed, because I was my father's son."
THE INTERPRETER: Yes.
MR MULLIN: And you come back four years later, your father is still there. Why hasn't he been killed?
THE INTERPRETER: When I was away, I - I- I know, but I heard that the whole family was beaten up.
MR MULLIN: When did that happen?
THE INTERPRETER: I cannot say for sure the dates and the time or the year.
MR MULLIN: Not even the year?
THE INTERPRETER: Sorry?
MR MULLIN: You can't even remember what year that was?
THE INTERPRETER: No, I cannot recall.
MR MULLIN: I think it's a pretty important thing isn't it? Your whole family's beaten up. You can't even remember what year that might have happened.
THE INTERPRETER: I did not want to even remember the - that - that - that terror what happened. I-I-I- I was quite young at that point if you understand, sir. It- it - it - it can be a very painful thing and it is impossible to go back to that ..... remember.
MR MULLIN: So how many times was your family beaten up?
THE INTERPRETER: What I understand with my communication with my family, sometimes they did not even tell me. They were not transparent with me and – and at times, I did not even have - I do not have any contact with them.
MR MULLIN: How many times was your family beaten up in this period between the time you left in 2001 and the time you went back in July 2005?
THE INTERPRETER: I know that they were beaten up, but how many times I cannot say. (emphasis added)
The applicant submitted that the Tribunal’s finding was unreasonable or erroneous because:
a) it did not provide any cogent reason for disbelieving his claim that his parents would not disclose to him the details of the beatings suffered by his family;
b) it provided no cogent and rational reason for assuming that his family would tell him about such events and made an unwarranted assumption about his family which was contrary to the evidence;
c) it failed to take into account his evidence that at times he did not have any contact with his family;
d) it failed to consider that in the context of asylum seekers, care, fairness and a reasonable approach are necessary, especially when they are required to recall traumatic and painful events;
e) other than the frequency, the Tribunal did not ask him about any circumstantial information concerning his family being beaten and there was no opportunity to expand on what he did know;
f) he was about to give evidence of having witnessed his family "living in terror" when he visited them, but the Tribunal cut him off and denied him that opportunity; and
g) it did not provide any logical grounds for disbelieving that his family did not tell him everything, other than to make the bare assertion it found the "explanation unconvincing", which was not a proper basis for finding that the event did not occur.
Discussion
I do not accept those arguments. The first thing to note is that the Tribunal was concerned that during his 2005 visit to his home, the applicant’s family did not tell him what had allegedly happened to them. It was not suggested that the Tribunal had acted unreasonably in accepting the applicant’s own evidence that his family did not discuss with him the mistreatment he says they had suffered before his 2005 visit. The fact that they did not discuss this with him during his visit was not what one would normally expect in the circumstances and, being unexplained, appears inconsistent with commonplace human behaviour and norms of social interaction. That being so, it was only logical and reasonable of the Tribunal to be sceptical of the applicant’s claim and, in the result, unpersuaded by it.
Secondly, the Tribunal’s concern was with the alleged failure to discuss events which had occurred before the applicant visited in 2005, not with whatever events may have occurred later and so the fact that the applicant’s parents may have been out of contact with him in later periods and so did not communicate is of no relevance to this issue.
Regarding broader issues about additional evidence which the applicant might have wished to advance, it should be noted the applicant’s solicitor was present at the Tribunal hearing and that p.32 of the Applicant’s Transcript records the Tribunal inviting the applicant at the end of the hearing to add anything else he might have wished to say. If the applicant had wished to add anything he could have done so and so his arguments in this connection take the matter no further.
Finally, the applicant submitted that the Tribunal:
… failed to consider that in the context of asylum seekers, there is a necessity for care, fairness and a reasonable approach especially when they are required to recall traumatic and painful events
but did not point to a substantive basis for that contention or identify why this was properly a particular of the pleaded allegation. In any event, the mere fact that the Tribunal disbelieves a review applicant is an insufficient basis to conclude that it has not exercised sensitivity in dealing with an individual who claims to have experienced events said to justify a well-founded fear of persecution.
Inconsistent evidence
Submissions
The second issue concerned the following passage from para.27 of the Tribunal’s reasons:
In the first hearing he claimed that the group attacked him with sticks but he was able to run from them. They pursued him to his house and he ran inside. They did not enter the house but remained waiting outside. By contrast, in the hearing before me he claimed that they pursued him for some distance and then gave up, allowing him to escape. When the inconsistency was drawn to his attention his only response was to deny having mentioned at the first hearing that he had evaded them by entering his house.
The burden of this submission was that the Tribunal had placed too much weight on the fact that the applicant gave it an account of a particular event which differed from the account of the same event he had given earlier to the RRT.
Discussion
With the exception of one point, the applicant’s argument did not rise above a dispute over fact finding and so pointed to no arguable material error, whether in the form of unreasonableness or otherwise. That one point concerned a submission that the applicant had had interpretation difficulties at the RRT hearing which the Tribunal had not taken into account. The applicant raised those concerns with the Tribunal in the following exchange recorded in the Applicant’s Transcript:
MR MULLIN: And then you had a hearing before the tribunal with a different tribunal member on the 28th of June 2011. Was everything that you said at those interviews and the hearing true?
THE INTERPRETER: That is my own opinion and I didn't diverge. That was what I was feeling in my last interview with the Department of Immigration. There was a bit of an issue with the interpreter, and I just feel that whatever I wanted to say, well, there was no clarity and there was - there was a bit of- the conversation was not right.
MR MULLIN: In what way in particular was the interpretation unable to convey what you wanted to convey?
THE INTERPRETER: I just didn't like the way, because what I wanted to say, even before I - I started saying or I completed the sentence, his body language was that - I just felt that I wasn't told what I wanted to say. It wasn't told in that way- in that- or I- I felt very restricted. Yeah. I just didn't feel - it was just the temperament I think. I - I just didn't feel free the way I was - the whole thing was kind of terrible, very negative. It was..... I did express this concern to my lawyer and I did say that that had been an issue.
It was not suggested that the matter was taken further and it is to be recalled in that connection that the applicant’s representative was present at the Tribunal’s hearing. No evidence was adduced to suggest that the applicant made a substantive allegation to the Tribunal that there had been any deficiency in the interpretation performed at the RRT hearing or that such a deficiency was nonetheless apparent to the Tribunal. That being so, it was not a matter to which the Tribunal had had to turn its mind.
In that regard, whether a claimant is represented by professional advisers, and whether those advisers articulated a case to the Tribunal which it is later said not to have been dealt with, are questions relevant to whether a matter can be considered to have clearly arisen from the materials before the Tribunal: SZSHK v Minister for Immigration & Border Protection (2013) 138 ALD 26 at 35 [37]. Unless there are reasons to think otherwise, it may be assumed that the claims which a represented applicant wishes to make before the Tribunal are the ones expressly articulated by him or her and his or her advisers and that any other arguable claims which are not expressly articulated are not pressed: SZRPA v Minister for Immigration & Citizenship [2012] FCA 962 at [10] and [26]; SZQFR v Minister for Immigration & Citizenship [2013] FCA 574 at [57].
Death of cousin
Submissions
In support of his next argument, the applicant referred to this passage from the Minister’s more complete transcript of the Tribunal hearing (”Minister’s Transcript”):
TRIBUNAL MEMBER: There's a media article about the death of your ... this person you say is your cousin I just didn't know him.
[SZQPZ]: A media report... yes there is a media report of my cousin being dead due to political reasons but the consequence of that my dad and my mum and all my family was scattered, that wasn't reported.
TRIBUNAL MEMBER: Many a report... in fact it doesn't mention anything about political reasons or anything to do with your cousin being a Buddhist. It just says well he was found dead in a river and that it seemed to be related to some sort of commercial dispute. I mean the article doesn't... if this person is your cousin, the article simply says that maybe he was involved in a fight over something... fishing rights or something with other fishermen. Nothing to do with him being targeted because he was a Buddhist or for any political reason.
[SZQPZ]: As I have mentioned before that was [the local Jamaat-i-Islami strongman] and his network, his supporters, people who are working for him or the Muslim gang. They work in this fashion, the real story is never out and of course there was a reason and the reasons which I mentioned is you needed to be related to this incident and my dad just made up a story and that's it.
TRIBUNAL MEMBER: So was there any media reporting at all of anything that happened to your family apart from your cousin.
[SZQPZ]: No, I did not have any public report about my family, my immediate family.
The applicant also referred to the following passage from the Tribunal’s decision:
I have strong doubts about the credibility of the Applicant's claim that his family disappeared in 2006. His claim that their departure was triggered by the murder of his cousin, following a demonstration organised by his father, is not supported by the media article he submitted to the first Tribunal which attributes this person's death to a commercial dispute. Having considered his explanation at the hearing that [the local Jamaat-i-Islami strongman] and his followers prevented the real story from being published I do not find it convincing. (emphasis added)
The applicant submitted that the Tribunal had made an unwarranted assumption that the Bangladeshi press was free to publish the real reason for the death of his cousin, namely that he had been killed by Muslims because he was a Buddhist. He argued that the Tribunal referred to no evidence which would support any view as to whether there was press freedom in Bangladesh, failed to consider evidence concerning the impunity enjoyed by the local Jamaat-i-Islami strongman and had articulated no reason to disbelieve his claims that the strongman had been responsible for his cousin’s death and that this event had caused his family to scatter and hide.
Discussion
The situation that these submissions raise is one where the applicant’s evidence on a particular point was inconsistent in that a newspaper article which he had submitted to the RRT said one thing and he said something different in his oral evidence to the Tribunal. It was the fact of the applicant’s inconsistency that caused the Tribunal to be unpersuaded by either of the versions he advanced. The other contention in his evidence, that the Jamaat-i-Islami strongman could silence the (local) press, had no effect on this outcome as it was implicitly rejected. I infer that the Tribunal found that contention unconvincing because it was unsupported by credible detail or any identified basis upon which the Tribunal could be confident that the applicant was in a position to speak authoritatively on the subject.
Consequently, neither unreasonableness nor failure to consider evidence have been demonstrated.
Applicant unable to contact his parents
Submissions
The next contention advanced in submissions was that the Tribunal had erred by making an unwarranted assumption concerning the applicant’s alleged inability to contact his parents once they had fled the family’s home village and gone into hiding. In that connection the applicant referred to the following passage from the Tribunal’s decision:
I find inherently implausible his claim that he was unable to contact his parents for a further six or seven years, during which time they were in hiding. If, as he now claims, they had gone to live in Myanmar in February 2007 there is no obvious reason why they would not have resumed contact with their own son as soon as possible or why they could not have done so. I note his explanation at the hearing - to the effect that they did not want to worry him and were afraid of prompting him to return to Bangladesh where he would be in danger - but this makes little sense if they had gained safety in another country. (emphasis added)
He also referred to the following passage from the Auscript Transcript:
MR MULLIN: Yeah. Well, it's a little hard to understand how it was not possible for you to make any contact with your parents - I'll rephrase that, since - in the period from 2005, when you last saw them, until 2012, a period of seven years.
THE INTERPRETER: My parents also did not contact me. They also did not tell me where they are and I tried my best to find out where they are.
MR MULLIN: Right. Why was it that your parents wouldn't contact you?
THE INTERPRETER: They- they have a - they have - they - their whole nature of thinking and I can't change that, they think that once I'm outside the country I'm safe, so they don't want to trouble me anymore and moreover they- they- they (not in English). I- they knew my nature, my innermost wishes that I don't want to stay outside. I want to come back, and they don't - did not want that to happen.
MR MULLIN: Right. Well, of course, for a lot of this period, they weren't in Bangladesh either. They were in Myanmar, a Buddhist country.
THE INTERPRETER: They were in a - - -
MR MULLIN: A Buddhist country.
THE INTERPRETER: They were in a Buddhist country (not in English).
MR MULLIN: You were in a Buddhist country too, in Thailand. So I would imagine that it would be a very important thing for you and for them to wish to re-establish contact. I mean, here's their own, their eldest son, whom they haven't seen since 2005. They're living in a place where you could come and visit them if you wanted to, and yet, they don't try to contact you.
THE INTERPRETER: Their reason is that in Myanmar we were not - we were not legal citizens over here. We - we - we just - when we came to seek some sort of refuge, so we were not in a very safe or say, in a very peaceful situation ourselves and we couldn't do it. We couldn't make ourselves live there peacefully, so we couldn't do it. (emphasis added)
The applicant referred to the Tribunal’s statement that there was “no obvious reason” why his parents would not have resumed contact with him, saying that the reason for a lack of contact did not have to be obvious in order to be true. He submitted that the Tribunal had assumed that his parents would resume contact with him once they were in Myanmar and that that assumption had been unwarranted.
It was further argued that the Tribunal’s conclusion that the applicant’s allegation that he had not been contact with his family for six or seven years was inherently implausible was mere speculation on the more likely of two possible scenarios.
Discussion
The applicant’s evidence to the Tribunal to which he referred in the context of this contention was that his parents did not seek to contact him during their multi-year stay in Myanmar because:
a)he was outside Bangladesh and safe;
b)he wanted to return to Bangladesh and they did not want him to; and
c)they did not want him to go to Myanmar because they were refugees, not citizens, and did not enjoy a safe or peaceful life there.
Given that evidence, I do not consider the Tribunal’s reasoning to have been mere assumption and speculation. If the applicant’s parents’ concern was to prevent him from being motivated to return to Bangladesh, there was no logical reason for them not to communicate from Myanmar, and no reason to suspect that they would have been motivated by some other, illogical, reasoning. Further, the applicant’s suggestion that his parents did not contact him from Myanmar because of their difficult circumstances there, over a period of several years it might be noted, makes no sense given that he did not suggest that they were concerned that he might travel there or any other reason why their circumstances would have constrained them. In those circumstances it was open to the Tribunal to conclude that there was “no obvious reason” why the applicant’s parents would not have resumed contact with him from Myanmar.
Why the Buddhist priest did not know where the applicant’s parents were
Submissions
The applicant submitted that the Tribunal had made an unwarranted assumption that the Ven. Mahathera, the most senior Buddhist cleric in Bangladesh and the abbot of the monastery at Patiya to which the applicant had been sent in 2000 after the first attacks on his father, would know whither the applicant’s family had fled. The applicant referred in this connection to the following passage in the Tribunal’s decision:
I also find implausible his claim that he had tried to contact his family during this period but was unable to do so, given his information at the hearing that when he returned to Bangladesh in 2009 he stayed in the temple in Patiya with [the] Ven. Mahathera, the most senior Buddhist cleric in the country. He claims his father was well-known as a defender of the Buddhist community in the village and he had already entrusted the Applicant to the abbot's care in 2000. In these circumstances I am not satisfied that [the] Ven. Mahathera would not have known, or could not easily have discovered, that such a person had gone with his family to nearby Myanmar and was being assisted there by a Bangladeshi Buddhist monk. I find the Applicant's suggestion that there is an ethical objection to Buddhist clergy assisting in individual cases to be inherently implausible and in some conflict with his own claim that [the] Ven. Mahathera was prevailed on to shelter him from harm in 2000. (emphasis added)
The applicant also referred to the following combined passages from the Auscript Transcript and the Minister’s Transcript of the Tribunal hearing:
MR MULLIN: I don't understand that all, Mr [SZQPZ]. If l could just ask that again. You rang up. You telephoned from Bangkok to this priest in the temple in Portea [sic], and you said, “I'm coming home” and what did the priest tell you?
THE INTERPRETER: That the - the elderly ..... had asked me, first, not to come.
MR MULLIN: Yes. Why did he say that?
THE INTERPRETER: His first response was that we are in a trouble, we are in trouble, and if you come it will only escalate, and we, really, do not want to get involved in any sort of problem.
MR MULLIN: Why would you coming back escalate any trouble?
THE INTERPRETER: Where will I stay? I have to come back.
MR MULLIN: No. We're talking about the advice that the priest gave you. Why would he say that the troubles that they were having would escalate if you went back?
THE INTERPRETER: He is saying it from the very beginning that what is happening with my family, and he knows that my going there will not ease the situation rather it will escalate it. That's what he said to me.
MR MULLIN: Right. The priest said, “Don't come back. It's just going to make everything worse.”
THE INTERPRETER: Yes.
MR MULLIN: What else did the priest say?
THE INTERPRETER: No, he did not say anymore.
MR MULLIN: So you didn't take any notice of. Did you ask the priest about your parents?
THE INTERPRETER: Yes, I did as [sic].
MR MULLIN: And what did the priest say about your parents?
THE INTERPRETER: He - he was not very knowledgeable about where they were staying or in what condition they were living. That he did not know.
MR MULLIN: You father was a prominent member of the local community in your village. Here's another Buddhist priest in Cox's Bazar in Portea [sic], he doesn't know about your father?
THE INTERPRETER: My father is - in the village, everybody knows each one, and that way he can talk better and that - that's why, but he's not, like - he's not holding a very great position or politically he's a - he's got a clout. It's - it's not like that.
MR MULLIN: Well, you told me before that this is a person who represented the Buddhist community, organised protests whenever there were problems.
THE INTERPRETER: Compared to the community over here or any advanced countries it is - it's -please don't value it that way. It is just a village and most of them are uneducated, illiterate .....
MR MULLIN: You seem to be saying two quite different things here, Mr [SZQPZ]. On the one hand, you're telling me your father was a person who represented his community and organised protests against [the local Jamaat-i-Islami strongman] and a Muslim gang when they tried to do things to the Buddhist community.
THE INTERPRETER: In the village many people will know him. If he walks by people will know him, but as such, he doesn't have any clout, any sort of, you know, oh, this person is here and this person is there. He doesn't have any network like that.
MR MULLIN: Are you saying that your father was not known at this temple in Portea [sic]?
THE INTERPRETER: He knew, like, you know, the temple in my village. That priest, he knew that priest. The Portea [sic] - the Portea [sic] elderly priest knew the priest in the temple in my village. That way they had a network. He also came to hear about my father and knew my father.
MR MULLIN: So he did know all about your father, is that right?
THE INTERPRETER: He knew about our problems, but directly, he never had a - kind of a network with my dad.
MR MULLIN: So who was this priest in Portea [sic]?
THE INTERPRETER: For it, spelling, Dharma D-h-a-r-m-a Dharma Sen S-e-n Sen, Dharma Sen Mahather - Mahather. Oh, Mahather, actually Mahather - Mahather.
MR MULLIN: Yeah.
THE INTERPRETER: That's a Buddhist. Mahather M-a-h-a-t-h-e-r.
MR MULLIN: Yes. In fact, this is the venerable Mahathera.
THE INTERPRETER: Venerable - venerable Mahathera.
MR MULLIN: And he's the same priest that your father sent you to in 2000 isn't he?
THE INTERPRETER: My dad got in touch with our village temple's ..... and they organised me to be sent to this venerable Mahathera.
MR MULLIN: Right. This venerable Mahathera isn't just any priest in Bangladesh is he? In fact, his title is supreme patriarch Buddhist at Bangladesh.
THE INTERPRETER: At - at the present his position is very good.
MR MULLIN: Well, yes. I mean this is a person who, I think, would know if there had been anything that had happened to a prominent Buddhist layperson in the same area. He would know all about it wouldn't he?
THE INTERPRETER: Like - like, you are pointing out that it is in the same area. It is not same area. What I am talking about, Mahathera is in Portea [sic], which is 300 - by bus, not kilometres, but three hours journey by bus to ..... where - where our temple, the village temple was situated.
MR MULLIN: It seems to me a bit hard to understand how you telephoned this person before you go back in 2009 and speak to him and he's got no idea what's happening with your parents.
THE INTERPRETER: They - they do not ..... or their way of - type of religion is they do not want to get involved in a single person's -their problem or their whatever is happening. With people, they do not want to get involved.
MR MULLIN: Really.
THE INTERPRETER: No, they don't want to get involved. (emphasis added)
…
TRIBUNAL MEMBER: It is also difficult to understand how you wouldn't be able to find out actually what had happened to them. As I say you were in touch with the person who was the most senior Buddhist religious person in Bangladesh. Your family you say, was being looked after when they went to Myanmar, at least at first, by a Buddhist monk who was from Bangladesh. It really seems very hard to believe through this network you wouldn't be able to find out exactly what had happened to your parents that is they had crossed over into Myanmar in February 2007.
[SZQPZ]: The Venerable Mahathera which you also mentioned before, I have spoken about them, their general nature is just face to face they do not want to get involved directly with any personal or family that they're faced with troubled situations so they have relocated; they do not want to know or get involved in those troubled.....
TRIBUNAL MEMBER: Really?
[SZQPZ]: Really. Also we do not talk about that. this is what we are facing this type of circumstances we are facing we do not talk about this kind of issues with …
TRIBUNAL MEMBER: It is hard to understand in that case Reverend or Venerable Mahathera would have written 2 letters on your behalf.
[SZQPZ]: Yes, that is their responsibility, that is their ethical responsibility that they will try to help me or anybody in that situation and when I specifically requested a letter that would definitely help me, yes, he did it.
TRIBUNAL MEMBER: So this person the supreme Buddhist religious person in Bangladesh has an ethical responsibility to help you but no ethical responsibility to help your parents is that right.
[SZQPZ]: He has only given me 2 reference letters. But his own opinion what he thinks whether it is his ethical responsibility or as a political ... he wants to get involved in this political turmoil or to bring it to more an equal situation that it is affecting my family and what is happening, that I don't know, I can't say, what his own opinion, what it is about. (emphasis added)
The applicant submitted that the Tribunal’s disbelief that the Ven. Mahathera, the abbot who had helped him flee the country in 2000, would not know of his family's whereabouts nine years later was not founded on any logical basis or probative grounds and amounted to an unwarranted assumption. He also submitted that the Tribunal had assumed without evidence that his father and the abbot were part of a “network” and argued that there had been no cogent reason for the Tribunal to disbelieve his claim that the Ven. Mahathera did not want to get too involved in his family’s troubles.
Discussion
Contrary to the applicant’s submission, the Tribunal did not expect the abbot to know where the applicant’s family had gone and it did not express disbelief that he did not know. Relevantly, what the Tribunal said was:
I am not satisfied that [the] Ven. Mahathera would not have known, or could not easily have discovered, that such a person had gone with his family to nearby Myanmar and was being assisted there by a Bangladeshi Buddhist monk. (emphasis added)
The picture that the applicant had painted of his father for the Tribunal was of a person of some significance in Buddhist circles, even if only local ones. In those circumstances, it was hardly capricious or unreasonable of the Tribunal to infer that the most senior Buddhist cleric in Bangladesh would have had the means to obtain some information regarding the whereabouts of the applicant’s father and family even if he did not already know where they were.
The applicant’s argument about a “network” is a straw man which the applicant erected only to knock down again. It was he who raised the question of a “network” in his evidence to the Tribunal and in its reasons the Tribunal relevantly did no more than note that he did. Its reasoning should be understood to be saying nothing more than a means of communication which had worked one way in 2000 might work in reverse some years later.
The applicant’s submission that the Tribunal provided no cogent reason for disbelieving the applicant's claim that the abbot did not want to get too involved in his family’s troubles is also unpersuasive. The Tribunal did provide such a reason when it noted that this claim conflicted with the applicant’s earlier allegation that the abbot had been prevailed on to shelter him from harm in 2000. The Tribunal’s conclusion must also be seen in light of its incredulity at the applicant’s contention during the hearing when the presiding member said:
So this person the supreme Buddhist religious person in Bangladesh has an ethical responsibility to help you but no ethical responsibility to help your parents is that right.
The steps the applicant took to contact his family during his visit to Bangladesh which commenced in May 2009
Submissions
In response to the Tribunal’s question at its hearing concerning the steps he had taken in 2009 to locate his parents, the applicant said:
THE INTERPRETER: I tried to contact any relatives who are still living in my village on the telephone. I did try to contact them, but none of them gave me any concrete new about my family.
The Tribunal commented:
It is difficult to understand why the Applicant would have returned to Bangladesh twice in 2009 if he believed himself to be in danger there following a narrow escape from harm in 2005. I note his explanation at the hearing that he was looking for his family and that he stayed in the temple in Patiya but his description of the steps he took to do so was notably vague and perfunctory. (emphasis added)
The applicant submitted:
The basis upon which the Tribunal made the comment that the applicant's steps were “vague and perfunctory” does not form any basis to support the rejecting of that evidence. It was unsatisfactory for the Tribunal to make general passing comments or general impressions of the evidence.
Discussion
This submission echoes an observation made in W148/00A v Minister for Immigration & Multicultural Affairs [2001] FCA 679. In that case Tamberlin and RD Nicholson JJ said:
… Where the question of credibility is determinative of a Tribunal decision, to simply assert that the Tribunal considers the applicant’s account to be “implausible” or “highly unusual” does not constitute a finding on the question raised. Such expressions are more in the nature of observations or side comments rather than findings. The reasoning process and supporting evidence that forms the basis on which a finding that evidence is rejected should be disclosed and clear findings made in direct and explicit terms. It is not sufficient simply to make general passing comments on general impressions made by the evidence where the issue is important or significant. (at [67])
The burden of the submission was that something more was required of the Tribunal than a simple statement to the effect that the applicant had really done very little to contact his parents. However, on the evidence that was a finding well open to the Tribunal and required no elaboration. It was a situation quite different from the one in W148/00A where it was held that a more complex factual issue, namely credibility, required something more than an unexplained, and so opaque, conclusion to a reasoning process that involved more than one fact.
The steps the applicant took to contact his family during his visit to Bangladesh which commenced in November 2009
Submissions
Continuing with its concerns regarding the applicant’s conduct in 2005, the Tribunal said:
Further, if he had tried but failed to find them in the period from May to June 2009 it is difficult to understand why he would make a second such attempt in November-December 2009, telephoning the same people, obtaining the same negative results and once more exposing himself to danger in the process of doing so.
At the Tribunal hearing the following exchanges had occurred:
MR MULLIN: So then you made another return visit to Bangladesh about three or four months later.
THE INTERPRETER: Yes.
MR MULLIN: Why did you do that?
THE INTERPRETER: Again, I went to look for them, to search for them.
MR MULLIN: So how did you do that?
THE INTERPRETER: I again, went there to look for my parents. I contacted the same guys where - [to] whom I had spoken before on the telephone and asked them, “What's the situation with the village, what is happening there” so that maybe, somehow, if I can get some news about my family.
MR MULLIN: When you say you went there, where was there?
THE INTERPRETER: Yeah, same - same place, Portea [sic].
MR MULLIN: Well, I mean you could have done this from Bangkok. You could have picked up the phone and rung the same man, picked up the phone and rung the same people in the village.
THE INTERPRETER: It is not very easy sitting in Bangkok. It's rather more, you know, practical that I'm - when I'm there it's different.
MR MULLIN: Why is it different? A telephone's a telephone.
THE INTERPRETER: By staying outside the country, you are just talking and you're relying on someone. It's not enough. But you are there you are seeing, firsthand, with your own eyes what is happening.
MR MULLIN: What, you didn't go to the village?
THE INTERPRETER: No, I did not go to the village.
MR MULLIN: Well, it's a bit hard to understand what you mean by seeing with your own eyes what was happening.
THE INTERPRETER: When I - what I meant by being there is that when I'm there in that kind of situation I can - I can contact friend of a friend or known person of a known person ..... person. I can do that, which is not possible in - in - in - sitting in Bangkok.
MR MULLIN: Well, if you were only telephoning this people, it's hard to understand I would have to say ..... difference is.
THE INTERPRETER: I, essentially, went in my ..... even though it was not my village. I have met my elderly priest and been spoken to some elderly people who were my peers who knew me, knew my family, so that sort of circumstances are at most ways totally different, because sitting somewhere outside the country and via telephone, you don't get that atmosphere.
MR MULLIN: None of these people was able to tell you anything about your parents, where they were, or your brother and sister.
THE INTERPRETER: No, no one could tell me.
MR MULLIN: Right. And so did you suffer any harm on that third visit to Bangladesh?
THE INTERPRETER: Most people did not know or very few who could recall ..... I was literally in hiding. I went there in hiding, kept in hiding, came away in hiding, so literally, if someone could recognise me, okay, but not many people knew about that visit.
In his written submissions the applicant submitted that in making the statement quoted above at [52] the Tribunal had failed to take into account his evidence that:
a) his visit earlier in the year had not been a very long one;
b) he did not go to his own village and telephoned from somewhere else so it was not necessarily known to the locals, including those who had been persecuting his family, that he was in the country; and
c) he was not “exposing himself to danger in the process” because his evidence was that he was in hiding on that visit and very few people knew about his visit.
Discussion
The applicant did not seek to demonstrate that the Tribunal had, in fact, overlooked those matters and I doubt that it did. However, and more significantly, the applicant did not make any submission regarding the significance to the Tribunal’s decision of such a failure were it to have occurred (see Minister for Immigration & Citizenship v SZKRT (2013) 212 FCR 99). In the absence of such a submission, any arguably related jurisdictional error has not been demonstrated.
The applicant’s failure to contact his family before his visit in May 2009
Submissions
The applicant submitted that the Tribunal speculated when it stated:
His suggestion that he returned on the second visit without trying to telephone his parents to alert them that he was coming, four years after he had last seen them, is also difficult to believe. I am not satisfied it is plausible that he would have avoided doing so because he anticipated they would tell him not to come. (emphasis added)
Discussion
Contrary to the implication of this contention, the Tribunal made no finding of fact. It simply stated that it was not persuaded by the applicant’s evidence that he had not sought to call his parents before returning to Bangladesh in May 2009 or by the reason he gave for allegedly not having done so.
The way the applicant found his family
Submissions
The Tribunal dealt with the applicant’s location of his family in the following terms:
His explanation for his eventual discovery of their whereabouts - through information obtained from a cousin several times removed who had previously denied any knowledge but then somehow changed his mind - was vague and unconvincing.
Discussion
The applicant’s argument was that a finding that evidence is vague and unconvincing is an insufficient basis upon which to reject that evidence. I disagree. Vague evidence may well be unconvincing. The fact that the Tribunal found it so was a matter for it and no basis to conclude that this was an illogical or unreasonable impression has been shown.
The family’s return to Bangladesh
Submissions
The applicant submitted that the Tribunal had failed to consider evidence he had submitted concerning the reasons for and the circumstances of his family’s return to Bangladesh from Myanmar when making the following findings:
I have further strong doubts about the Applicant's account of his family's alleged return to Bangladesh from Myanmar in February 2013. At the hearing he claimed they did so at his urging, after he discovered where they were and managed to telephone them in October 2012. His explanation for his eventual discovery of their whereabouts - through information obtained from a cousin several times removed who had previously denied any knowledge but then somehow changed his mind - was vague and unconvincing. As put to him, even if his family did not feel comfortable in their alleged exile in Myanmar it appears quite implausible that they would exchange a safe existence there for a return to conditions of great danger to their lives such as he describes. If his father or other members of his family had, in fact, suffered beatings, destruction of their property, eviction and death threats, so that they were forced to flee their own country to find safety abroad, I do not accept that they would return because of the relatively minor problems described by the Applicant. I also find it difficult to believe that they would be persuaded to take such a momentous step simply because it was suggested to them by their son, a person who would have had no knowledge of their personal circumstances in Myanmar and who had not lived in Bangladesh for eleven years. He suggested at the hearing that in this discussion he offered to support them financially if they returned to Bangladesh, and that they were unable to fend for themselves in Myanmar. However, there is no obvious reason why he could not have supported them financially in Myanmar, allowing them to remain in safety. I find it difficult to believe his claim that there are no mechanisms by which he could have transferred money to them in Myanmar. (emphasis added)
The following passage from the Minister’s Transcript was quoted in the applicants’ written submissions in support of this argument:
TRIBUNAL MEMBER: You know I just...you said when you found that your parents were living in Myanmar. Let us start with the newspapers of Australia news where your cousin was several times removed in 2012. You telephoned your father.
[SZQPZ]: Yes.
TRIBUNAL MEMBER: And you said...did you ask them to return to Bangladesh.
[SZQPZ]: Yes.
TRIBUNAL MEMBER: And so they did.
[SZQPZ]: Yes.
TRIBUNAL MEMBER: Why did they do that.
[SZQPZ]: I asked them repeatedly what was the situation and are they are living comfortably with their...is their position okay and they said no, that the, the priest have said to them that their position is not legal so it is best not to remain here and return. So that was the advice also coming from the priest. And also I told him that I can give you some money, I can help you financial so if you can make some prospects that you can stay there, go back there and stay there then please try to do that.
TRIBUNAL MEMBER: So if I understand what you're saying and your family had to run away from Bangladesh to seek safety in Myanmar just across the border and they are told, this is in 2012, are told by priests, Buddhist priests that their situation isn't legal so it's best for them to go back to Bangladesh.
[SZQPZ]: I do not know all the reasons in totality or in a microscopic manner that every little reason but overall I know that they would not stay there safely or in a nice way, in a comfortable way.
TRIBUNAL MEMBER: So were they being harmed in Myanmar.
[SZQPZ]: No, I haven't heard about any sort of assault.
TRIBUNAL MEMBER: Well, so what was the problem.
[SZQPZ]: They could not settle down there.
TRIBUNAL MEMBER: Why couldn't they settle down.
[SZQPZ]: How can they live you know, they're not citizens of that country. The language they do not understand it was totally foreign, how will they live.
TRIBUNAL MEMBER: So it's better to live in some discomfort, I'm sorry, rather than living in some discomfort where the atmosphere is not so good in Myanmar it's better for them to go back to Bangladesh where they're forced to live in hiding for fear that they're going to be killed. Is that right.
[SZQPZ]: There is a big difference in a country where you are born and living in another country and seeking refuge there.
TRIBUNAL MEMBER: Well it's a bit like here in Australia I suppose, isn't it.
[SZQPZ]: Yes
TRIBUNAL MEMBER: Frankly Mr [SZQPZ], I find it very hard to understand how if your family was not under any threat of harm in Myanmar they would go back to a situation where they've got to live in hiding, they've got to move constantly from place to place afraid of being killed. I mean let's say they did move back but they didn't realise how bad the situation was. I suppose the next question is well why don't they go straight back to Myanmar?
[SZQPZ]: The way they cross the border they really take their lives in their hands.
TRIBUNAL MEMBER: Why is that?
[SZQPZ]: I don't know because I wasn't there and they haven't told me in detail but I thought from what I heard and what little they told me that it is a risk to your life just to cross the border. And also they could not settle just like normal people eating, drinking, sleeping they couldn't do it. How much the priest can protect them just to give them the basics. They're just not getting the livelihood, they're just not into the normal what they want like normal living.
TRIBUNAL MEMBER: Well I suppose you could've sent money to them in Myanmar where they were safe to help them leave instead of telling them to come back when there are going to be risking their lives and they had to go into hiding.
[SZQPZ]: I do not know the channel of...there's no identity, there's a specific place that they will receive my money and watch the channel. It is in Bangladesh we target.. .okay we know where to go, what to do. Maybe we can I by paying the police or do something so that we can return. (emphasis added)
The applicant submitted that the Tribunal had not taken the following evidence into account:
a) the advice to return came from the Buddhist priest in Myanmar and the applicant had merely supported and agreed with him;
b) the family members were not just uncomfortable and did not just face “minor problems” in Myanmar. Their real circumstances were that they:
(i)were not living there legally;
(ii)were effectively living as refugees;
(iii)could not earn a livelihood;
(iv)were being protected by the priest who was only giving them the basics on which to live; and
(v)were not living normally even in terms of eating, drinking and sleeping; and
c) his family would be risking their lives if they went back across the border to Myanmar.
Discussion
The applicant’s arguments have not persuaded me that the Tribunal’s reasons quoted above at [60] were unreasonable or represented a failure to consider evidence.
First, the Tribunal’s decision record demonstrates that it was aware of the reasons the applicant gave for his family wanting to leave Myanmar but rejected their potential to motivate a return to Bangladesh, describing them as “the relatively minor problems described by the Applicant”. That characterisation echoes the Tribunal’s comments recorded in the transcript which has been quoted.
Secondly, given the following exchange, which has already been quoted in these reasons, it was open to the Tribunal to find, regardless of the involvement of the priest, that the applicant’s family had returned to Bangladesh at the applicant’s suggestion:
TRIBUNAL MEMBER: And you said...did you ask them to return to Bangladesh.
[SZQPZ]: Yes.
TRIBUNAL MEMBER: And so they did.
[SZQPZ]: Yes.
Thirdly, whatever danger a further border crossing into Myanmar might have presented was not relevant to the present discussion because the possibility of the applicant’s family returning to Myanmar was not an issue before the Tribunal.
Finally, the applicant submitted that the Tribunal had erred by finding that there were “no obvious reasons” why the applicant could not have financially supported his family in Myanmar. However, it is hardly surprising that the Tribunal was not impressed by what the applicant said to it regarding the possibility of sending remittances to his family in Myanmar. His evidence was:
I do not know the channel of ... there's no identity, there's a specific place that they will receive my money and watch the channel. It is in Bangladesh we target... okay we know where to go, what to do.
That evidence was an admission of ignorance not an informed statement. The applicant gave no reason why remittances could not have been sent. His objections to the idea were insubstantial and for that reason not unreasonably failed to impress the Tribunal.
Risk of revenge attacks in Bangladesh
Submissions
The applicant also submitted, but did not plead, that the Tribunal failed to take into account his representative’s submission at the end of the hearing that there had been killings of Muslims in Myanmar which could have affected the situation of Buddhist minorities in Bangladesh.
Discussion
It is true that no specific mention was made of that claim in the Tribunal’s reasons. However, the claim was not developed at the Tribunal hearing, where no substantive address was made in relation to it. Specifically, no claim was made that those circumstances might lead to the applicant suffering significant harm. In circumstances where no point was made that the treatment of Myanmar’s Muslim minority would have any particular effect on the applicant’s particular circumstances, including his extant claim to fear faith-based significant harm, I conclude that its consideration was subsumed in the reasoning in relation to that claim.
Further, if the matter had been intended by the applicant’s representative to have been a substantive, separate claim, the Tribunal was entitled to have expected that it would be advanced as such but it was not. Any failure to consider it as such therefore did not amount to jurisdictional error, much less unreasonableness or a failure to consider evidence.
CONCLUSION
For the above reasons, the allegation that the Tribunal’s credibility findings concerning the applicant were unreasonable and failed to take the evidence into account have not been made out. Jurisdictional error on the part of the Tribunal has therefore not been proved in that connection. It has also not been demonstrated in connection with the late-made observation concerning potential revenge attacks.
Consequently, the application will be dismissed.
I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for judgment of Judge Cameron
Associate:
Date: 2 October 2019
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