SZSFM v Minister for Immigration
[2014] FCCA 385
•7 March 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZSFM v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 385 |
| Catchwords: MIGRATION – Application for review of decision of Refugee Review Tribunal – whether Tribunal failed to have regard to information it was provided with or to take into account relevant considerations – whether Tribunal failed to investigate the authenticity of documents provided – Application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36(2A) , 91X, 424A, 474 |
| Minister for Immigration and Citizenship v SZIAI & Anor (2009) 259 ALR 429 W396/01 v Minister for Immigration and Multicultural Affairs (2000) 68 ALD 69 |
| Applicant: | SZSFM |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2673 of 2012 |
| Judgment of: | Judge Lloyd-Jones |
| Hearing date: | 24 May 2013 |
| Delivered at: | Sydney |
| Delivered on: | 7 March 2014 |
REPRESENTATION
| The Applicant: | The Applicant appeared in person with the assistance of a Bengali interpreter |
| Solicitors for the First Respondent: | Ms L. Buchanan of Australian Government Solicitor |
| The Second Respondent: | The Second Respondent filed a submitting notice of appearance. |
ORDERS
The name of the First Respondent be amended to read “Minister for Immigration and Border Protection”.
The Application filed on 19 November 2012 and amended on 25 March 2013 be dismissed.
The applicant pay the first respondent’s costs and disbursements of and incidental to the Application.
The Applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and has been given the pseudonym SZSFM.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2673 of 2012
| SZSFM |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application under the Migration Act 1958 (Cth) (the “Migration Act”) seeking judicial review of a decision of the Refugee Review Tribunal (the “Tribunal”), being RRT Case Number 1110718, a decision of Tribunal Member G. Short dated 23 October 2012, affirming the decision of a delegate of the Minister for Immigration and Border Protection (at the time of the decision the Minister for Immigration and Citizenship) (the “Minister”), to refuse to grant the applicant a Protection (Class XA) visa.
In accordance with the Court Orders made on 5 February 2013 the solicitors for the first respondent, the Minister, were required to file a folder which was to be indexed, labelled and paginated, containing all documents which may be relevant to the hearing. This order was complied with and the volume of material provided is identified as the Court Book (“CB”) and has been marked Exhibit “A”.
At the First Court Date directions hearing the applicant sought to participate in the NSW RRT Legal Advice Scheme. This referral was made and written advice was provided after the applicant’s conference with a panel adviser. The applicant was granted leave to file and serve a short written outline of submissions and list of authorities fourteen (14) days before the date of the hearing. The applicant did file and amended application on 25 March 2013 and an outline of written submissions on 9 May 2013.
Background
In setting out the following background material I have quoted directly from the Court Book and submissions prepared by the parties. I have not made further attribution as this would make the summary unwieldy. Where this information is extracted from the Court Book, each item contains a reference (“CB”) for that material.
The applicant is a male citizen of Bangladesh who arrived in Australia on 6 June 2011 (CB 96). On 20 June 2011, he lodged a Protection (Class XA) visa application with the Department of Immigration and Citizenship (as it was then) (CB 1-27).
On 22 September 2011, a delegate of the Minister refused the applicant’s Protection visa application (CB 72-83). On 12 October 2011, the applicant filed an application for review of the delegate’s decision with the Tribunal (CB 84-88).
On 13 February 2012, the Tribunal invited the applicant to a hearing on 16 March 2012, and the applicant accepted that invitation by correspondence dated 12 March 2012 (CB 92-95, 100-102). The hearing convened but was ultimately adjourned to 24 May 2012 (CB 261-262).
In a statement lodged in support of his Protection Visa application, the applicant claimed that he would face persecution in Bangladesh from the government and its supporters due to his political activities as an active member of the Bangladesh National Party (“BNP”). The applicant claimed that he became involved in the BNP’s student wing while at secondary school in Sandwip in 1993, and to have later become the General-Secretary of his local student branch of the party. He claimed that he began to face threats of harm from Awami League (“AL”) activists after the general election in 1996, which the AL won, and that he was later attacked. He claimed the police would not assist, so he moved to Chittagong. He claimed that his family were again attacked when he returned to visit his family and the AL and police came to his house in Chittagong, so he moved to his uncle’s house in Dhaka where he was again located and threatened. The applicant arranged to take a job on a merchant ship in October 2004.
Upon his return in 2005, the applicant again claimed to have become active in the BNP youth wing in Sandwip. He claimed that in January 2008, having returned to visit his ill mother, he was attacked by AL activists with a pipe. He was hospitalised and after his release he again took a job on a ship, leaving in July 2008. He claimed that upon return to Bangladesh, the Rapid Action Battalion (the “RAB”) came to his house in Chittagong in order to arrest him. He again returned to a ship in October 2009, but a similar incident occurred when he returned in 2010. Shortly before returning to another ship he claimed to have been kidnapped, attacked and to have had money demanded from him by unknown persons before being released. After this he again joined a ship on which he came to Australia.
The applicant provided to the Department of Immigration and Citizenship a number of supporting letters attesting to his claims and a hospital discharge from January 2008 which referred to his having been hospitalised for “assault injury”.
The applicant’s representative submitted to the Tribunal that the applicant also faced harm in Bangladesh as a member of a family unit of BNP supporters and as a Bangladeshi ship deserter, and the applicant could not relocate or obtain effective state protection. The applicant also provided further material in support of his claims, being further letters of support, a statutory declaration from a person identified as Mr K who claimed to have recently visited Bangladesh and made inquiries on the applicant’s behalf, and other documents from Bangladesh.
The applicant and Mr K appeared before the Tribunal and gave evidence on 16 March 2012. After the applicant’s representative raised concerns about the applicant’s ability to give evidence at the hearing, it was adjourned to enable the applicant’s representative to obtain a psychological report. A report was provided to the Tribunal and a further hearing was scheduled to take place on 24 May 2012. At that hearing the applicant’s representative also specifically claimed that the applicant would face significant harm under the complementary protection provisions in relation to his being a Bangladeshi ship deserter and in relation to any future imprisonment due to the prison conditions in Bangladesh.
On 28 May 2012, the Tribunal wrote to the applicant’s representatives pursuant to s.424A of the Migration Act putting to the applicant that evidence of Mr K conflicted with the applicant’s own evidence, as well as putting the applicant on notice of inconsistencies in claims based on his desertion of the ship. In ensuing correspondence, the applicant’s representative responded with a further statement from the applicant and detailed submissions regarding complementary protection, including that the applicant would face harm as a ship deserter, and as torture is committed in Bangladesh with impunity and the active or passive support of the authorities.
The Tribunal’s Decision
On 23 October 2012, the Tribunal handed down its decision affirming the decision of the Minister’s delegate not to grant the applicant a Protection visa (CB 330-378). In reaching its conclusions, the Tribunal found as follows:
a)The Tribunal considered the psychological report provided to the Tribunal and noted that in light of that report it was required to consider the applicant’s capacity to give evidence. Having taken into account the report from the psychologist, the Tribunal was satisfied that the applicant was able to effectively participate in the hearing before it (CB 363 at [139]-[140]);
b)The Tribunal accepted on the basis of the applicant’s Continuous Discharge Certificate that he came from Sandwip. The Tribunal also accepted that the applicant had been involved in the BNP there. However, it did not accept that the applicant was a well-known political figure in Sandwip, rather on the applicant’s own evidence, the applicant had had a very low level political involvement (CB 363 at [144]);
c)The Tribunal accepted that the applicant had become the Vice President of the Jubo Dal in Sandwip when he returned to Bangladesh in October 2005. However, while the applicant had given evidence that he had moved to Chittagong in 2006 due to fear of being attacked the Tribunal did not accept that the applicant’s behaviour had suggested he feared being attacked at any time or anywhere because of his involvement in the BNP (CB 365 and 366);
d)The Tribunal considered the applicant’s various claims regarding attacks on him, fear of attacks and attendances by the police and the RAB at various times, but found that the applicant’s own behaviour did not suggest that he feared being attacked at any time because of his involvement in the BNP. The Tribunal also found it difficult to believe that the applicant would not have been found by the police or the RAB if they had been looking for him as claimed, and found that the applicant went to sea in 2004 to financially support his family. The Tribunal further found that the applicant’s failure to seek protection on his previous visits to Australia as a merchant seaman cast doubt on his claims. It rejected his claims to have been attacked in 1996 and 2008 and abducted in 2010 and that the AL, police, the RAB or extortionists have been looking for him (CB 368);
e)The Tribunal found that Mr K deliberately lied to the Tribunal in respect of when he met the applicant, in light of address information given by the applicant and Mr K’s previous letter of support for the applicant to obtain work rights associated with a bridging visa. The Tribunal found that Mr K had deliberately lied to conceal his friendship with the applicant and gave Mr K’s evidence no weight (CB 369);
f)The Tribunal considered the “release card” purported to have been prepared by a hospital in Sandwip, but found the letter not to be genuine and gave it no weight. In so finding, the Tribunal considered that the fact that the documents was signed 10 January 2008 rather than 18 January 2008, the day the applicant was released from hospital, to cast doubt on its genuineness. Further, as the Tribunal put to the applicant, country information indicated that medical certificates can be issued from Bangladesh with incorrect information. While the applicant had requested the Tribunal to confirm its genuineness, the Tribunal did not consider it was practicable to do so as the only way in which that could be done was for someone to go to Sandwip Island and the applicant’s representative had accepted that it was not possible to verify whether it was genuine. The Tribunal considered that this was not a case such as that referred to by the High Court in Minister for Immigration and Citizenship v SZIAI & Anor (2009) 259 ALR 429 at [25] where the failure to make such an inquiry could constitute a failure to review (CB 370);
g)The Tribunal noted the letters of support from politicians from Bangladesh, but gave greater weight to the problems with the applicant’s own evidence than to the letters themselves. The Tribunal noted that the letters were formulaic in terms and some of them identical which suggested they were drafted by someone other than the writer. Further, some included details which did not accord with the applicant’s history. Again the Tribunal referred to country information which suggested that it is common for such letters to be issued with incorrect information and while the applicant requested the Tribunal verify the letters, the Tribunal declined to do so. The Tribunal accepted that the politicians signed the letters, but questioned whether the information in them was correct. The Tribunal again found that this was not a case such as that referred to in SZIAI (supra) at [25];
h)The Tribunal accepted that some leaders, members and supporters of the BNP have been arrested and killed but did not accept that there was a real chance that the applicant would be persecuted as a result of his involvement in the BNP. The Tribunal accepted that the applicant has family members who are also involved in the BNP and that some of them have been killed or harmed. However, it did not accept the applicant would face any persecution as a result of any imputed political opinion arising from his family or as a member of their social group (CB 371);
i)The Tribunal did not accept that ‘Bangladeshi ship deserters’ constituted a particular social group for the purposes of the Refugees Convention and found the applicant would not face a real chance of persecution in Bangladesh as a result of his membership of such a group. In doing so, the Tribunal considered the applicant’s representative’s submissions that the Full Federal Court had accepted this as a social group in Minister for Immigration and Citizenship v SZNWC [2010] FCAFC 157, but rejected that submission as it was a finding not challenged or therefore considered by the Court in that case (CB 372-373);
j)The Tribunal then considered the complementary protection criteria in respect of the applicant. In light of its earlier factual findings, it found there to be no real risk that the applicant would suffer any of the forms of significant harm as stated in s.36(2A) of the Migration Act, as a result of the applicant’s involvement with the BNP (CB 374-375);
k)The Tribunal also found there were no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia there was a real risk that the applicant would be imprisoned and subjected to torture or other significant harm as a result of having deserted his ship. In making this finding the Tribunal relied on the country information regarding Bangladeshi ship deserters which had been put to the applicant in a s.424A letter and which indicated that no deserters who had been caught had ever faced penal action and, while some had been arrested they had not been imprisoned, instead had other penalties imposed upon them. The Tribunal considered contrary information imposed and that there were cases pending before the Courts, but preferred the evidence of the earlier writers (CB 374-375).
Current Proceedings
Legislative Framework
The decision of the Tribunal in the present case is a privative clause decision as defined by s.474(2) of the Migration Act. Section 474 operates to prevent the judicial review of all decisions under the Migration Act except those vitiated by jurisdictional error.
Application before the Court
The applicant filed the Amended Application on 25 March 2013. The orders sought in the Amended Application are:
1. A Writ of Certiorari directed to the second respondent removing into this court to be quashed its purported decision made by the Refugee Review Tribunal made on 23 October 2012.
2. A Writ of Mandamus directed to the second respondent to rehear and re determine the applicant’s application for review according to law.
3. Writ of Prohibition directed to the first respondent preventing her (sic) or her (sic) agents or delegates from acting upon or giving effect to or enforcing the purported decision.
4. Such other order as this Honourable Court thinks appropriate.
The grounds of the Amended Application are:
1. The Refugee Review Tribunal did not put any weight to the supporting documents and failed to investigate its authenticity those were provided in support of my activities for the BNP in Bangladesh.
Particulars:
A. The Tribunal did not put any weight to the supporting documents and failed to investigate its authenticity those were provided in support of my activities for the BNP in Bangladesh.
i) The Tribunal did not put any weight to the supporting documents provided my party leaders because it was identical with each other.
ii) The Tribunal failed to contact with the referees to check its authenticity while I was continuously requesting the Tribunal to make enquiry.
2. The Refugee Review Tribunal accepted that I had been involved with BNP politics, but I was a low profile leader. The Tribunal also accepted that my family members were involved with the BNP politics.
Particulars:
A. The Tribunal accepted that I had been involved with the BNP politics, but I was a low profile leader. The Tribunal also accepted that my family members were involved with the BNP politics. However
i) The Tribunal failed to take into account that low profile political leaders were facing high risk in Bangladesh rather than high profile leader.
3. The Refugee Review Tribunal made a comment that there is no real risk in foreseeable future that I will be punished if I forced to back in Bangladesh.
Particulars:
A. The Tribunal made a comment that there is no real risk in foreseeable future that I will be punished if I forced to back in Bangladesh. I submit that
i) The Tribunal ignored the political circumstances in Bangladesh by making the above comment.
ii) The Tribunal ignored the reality of political violence in Bangladesh where the government Awami League violated to the BNP leaders and activists.
Applicant’s Submissions
The applicant filed an outline of written submissions on 9 May 2013. The applicant set out the relevant factual background which is set out at [5]-[13] above, his claims before the Tribunal and the Tribunal’s findings which hare set out at [14] above.
The applicant, in his written submissions, submitted that the Tribunal did not put any weight to the supporting documents provided by his party leaders because they were identical to each other. The Tribunal made the following comments at [172] of the Decision Record that:
172. … These letters are cast in formulaic terms and some of them are in identical terms although they purported to be from different signatories…
(CB 370)
The applicant submits that as the Tribunal did not put any weight to the documents that were vital evidence of his involvement with the BNP and claims he was denied natural justice. The Tribunal also commented at [173] of the Decision Record that:
173. …the information available to me indicates that it is common for political party membership confirmation letters to be issued in Bangladesh even if the information in them is incorrect…
(CB 370)
The applicant submits that the Tribunal did not put any weight to the supporting letters and his claim the documents were genuine. He claims that the Tribunal failed to contact the referees or make an inquiry to check the authenticity of these letters.
The applicant submits the Tribunal accepted at [174] of the Decision Record that he had been involved with BNP politically, but as a low profile leader and that he was attacked by the AL:
174. I accept that the applicant has had some involvement in the BNP, but at a low level…
(CB 370)
The applicant argues the Tribunal failed to take into account low profile political leaders were facing high risk in Bangladesh, rather than high profile leaders. He claims that low profile leaders are working on the ground and, as a consequence, their chances of being persecuted were higher than high profile leaders. The applicant submits that the Tribunal failed to take into account the real political situation in Bangladesh and accordingly failed to uphold natural justice.
The applicant submits that the Tribunal stated that there is no real risk in the foreseeable future that he would be punished if he was to return to Bangladesh. The applicant submits that the Tribunal ignored the political circumstances in Bangladesh and the violence perpetrated by the AL against BNP leaders and activists.
The applicant submits that the Tribunal failed to consider whether he would be in danger of persecution if he continued his political activities in support of the BNP. The applicant claimed before the Tribunal that the political situation in Bangladesh was deteriorating and that his political colleagues were assassinated by the ruling AL.
The applicant submits that the Tribunal did not consider the real chance of the applicant’s persecution because of his political opinion. The applicant claims that the failure of the Tribunal to address this issue prevented it from having the rational basis to determine the chance of persecution in the future and resulted in the Tribunal not considering an essential and substantial matter of his claims: W396/01 v Minister for Immigration and Multicultural Affairs (2000) 68 ALD 69 at [33] where their Honours Black CJ, Wilcox and Moore JJ held per curiam:
33 An apparent illogicality in the Tribunal's reasoning is not in itself a reviewable error. However to the extent that it demonstrates a failure by the Tribunal to ask itself the right question or a failure to consider a relevant consideration that it was bound to consider, illogicality may manifest reviewable error: see Minister for Immigration and Multicultural Affairs v Epeabaka [1999] FCA 1; (1999) 160 ALR 543 esp. at para 25. That is the case here. What is revealed by the Tribunal equating the appellant's earlier trip to Syria and Turkey with his journey to Australia and its failure to take its inquiry any further, is that the Tribunal asked itself a separate and distinct question, namely, would the fact that he had left the country arouse suspicion from the Iranian authorities and lead to persecution having regard to his earlier employment? The Tribunal failed to ask itself, as it was obliged to do in assessing the appellant's sur place claim, whether in all the circumstances the appellant had a well founded fear of persecution for a Convention reason arising from events occurring after the appellant's departure from Iran? If it had asked itself this question, it would have progressed from considering the appellant's claims individually to considering whether the interplay of circumstances, including the interview with ASIO to which no reference was made, placed the appellant in a position of risk. In failing to ask the right question, the Tribunal fell into error. This error may be characterised in a number of ways as is illustrated by the judgment of Wilcox and Madgwick JJ in Sellamuthu v Minister for Immigration & Multicultural Affairs [1999] FCA 247; (1999) 90 FCR 287 at 292 -293:
"... [B]ecause the RRT did not apply itself to all the substantial matters which might bear on whether the applicant met the Convention requirements of a refugee, the RRT did not consider the 'real question which it was its duty to consider' and this was a constructive failure by the Tribunal to exercise its jurisdiction: Minister for Immigration and Multicultural Affairs v Guo (1997) 191 CLR 559 at 577, per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ, implicitly endorsing the legal analysis (though not the factual conclusions) of Beaumont J at first instance (1996) 64 FCR 151 at 165. See also Sinclair v Maryborough Mining Warden [1975] HCA 17; (1975) 132 CLR 473 at 480 and 483. A decision based on the RRT's constructive failure to exercise its jurisdiction is one `not authorised by the Act' within the meaning of s 476(1)(c). It also involves an 'error of law, being an error involving an incorrect interpretation of the applicable law' within s 476(1)(e). Further, it may involve an `error of law, being an error involving ... an incorrect application of the law to the facts as found' within s 476(1)(e) because, although the facts as found were that the appellant was not credible, the Act was incorrectly applied to that fact so as to result in the application being dismissed. The correct application of the law (in the circumstances of this case) required a determination, despite the appellant's lack of credit-worthiness, as to whether, on all of the relevant information obtained (including any which reasonably could and should have been obtained), he was a refugee, albeit an untruthful one."
(See also Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 180 ALR 1 particularly at paras 82 to 85.)
Minister’s Submissions
Failure to give weight to supporting documents
The Minister submits the Tribunal did not err in giving certain of the applicant’s supporting documents no weight. The Minister submits that, with respect to the politician’s letter, the Tribunal gave greater weight to the problems with the applicant’s own evidence than the letters in support. Such a finding was open to the Tribunal: Minister for Immigration and Citizenship v SZNPG & Anor (2010) 115 ALD 303.
The ground asserts that the Tribunal erred in failing to make an inquiry to authenticate the documents. The Minister submits that it can be inferred from the Tribunal’s acceptance that the people who signed the letters had in fact done so but its rejection of the contents of the letters in light of its credibility findings in relation to the applicant that the Tribunal was of the view that contact with the letter writers would not have overcome its credibility concerns. There was therefore no critical fact in issue: see for example SZMJM v Minister for Immigration and Citizenship [2010] FCA 309; SZNWF v Minister for Immigration and Citizenship [2010] FCA 1041.
Findings on Involvement with the BNP
The applicant’s submissions assert that the Tribunal ‘failed to take into account the real political circumstances in Bangladesh’. The claim suggests that even ‘low profile political leaders’ were facing risks in Bangladesh, although he does not identify the basis upon which that assertion is made.
In any event, the Tribunal did not accept that the applicant was a ‘political leader’, only that he had ‘some involvement in the BNP, but at a low level’ (CB 370 at [174]). It rejected that he had ever been attacked because of his involvement in the BNP and found that the police and/or the RAD had never been seeking him Bangladesh. For this reason, and even accepting that his family had also had some involvement with the BNP (CB 371 at [178]), the Tribunal concluded that there was no ‘real chance’ of persecution for reasons of his political opinion as a result of his ‘involvement’ in the BNP (see CB 371 at [177]). That finding was open to the Tribunal on the evidence before it.
Finding of no real risk in the foreseeable future
The applicant’s submissions state that the Tribunal erred by ignoring the ‘political circumstances’ and the ‘reality of political violence’ in Bangladesh.
The Minister contends it is clear that the Tribunal did consider the political circumstances in Bangladesh (see example CB 343 at [43]-[47]). However, it based its conclusions not on the rejection or ignorance or independent country information as to the level of safety or stability in Bangladesh, rather on the applicant’s particular circumstances. The Tribunal disbelieved the applicant’s claimed level of political involvement and found instead that he would resume only ‘low level involvement’ in the BNP upon return (CB 371 at [177]). It did not accept that the applicant (whose claimed experiences of threats, violence and extortion had been disbelieved) would suffer harm.
The Minister submits that the Amended Application has not identified any discernible jurisdictional error. Further, there is nothing in the conduct of the Tribunal or in its consideration of the claim which reveals any misunderstanding of its task or error in its processes.
Consideration
The hearing before the Court was held on 24 May 2013 where the applicant was assisted by a Bengali interpreter. The Court File contains a copy of the NSW RRT Legal Advice Scheme: Certificate By Panel Member which indicates that the applicant attended a conference and received written advice from a panel adviser, but was not provided with a draft amended application. The applicant filed the Amended Application on 25 March 2013 and an outline of written submissions on 9 May 2013.
At the hearing, I indicated to the applicant that I had read his written submissions then I asked the applicant if he had any oral submissions he wished to make. The applicant stated that he had been in and out of Australia about 15 times from 2004 as a member of a ship’s crew. The applicant submitted that in 2011 his niece was killed and his family suggested that he should stay in a country where humanitarian protection is given.
The applicant then submitted that the Tribunal did not consider all the evidence that he had submitted to it. He also stated that he requested that the Tribunal investigate the medical certificate he had provided. The applicant submitted that the Tribunal did not consider the evidence.
The applicant specifically referred to the political situation in Bangladesh where he claims high profile leaders are not being killed, but low profile leaders are.
I indicated to Ms Buchanan, appearing for the Minister, I had read her written submissions. She stated that the applicant in Ground 1 of the Amended Application stressed reference on the supporting documents provided by political leaders, whereas his oral submissions stress a reference to supporting documents provided from a hospital, which is dealt with at [154]-[156] of the Tribunal’s Decision Record.
Ms Buchanan argued that there is no jurisdictional error evident from the Tribunal’s consideration of that document, and the Tribunal has set out why it did not accept that evidence and also why, having considered the High Court’s judgment in SZIAI (supra), it did not think that making any inquiry as requested would overcome its consideration of its genuineness, or lack thereof. Ms Buchanan also submitted that in respect of the Tribunal’s consideration as to whether the applicant, as a low level member of the BNP, might be harmed, it accepted that some members and supporters of the BNP are harmed, but it did not consider that the applicant is someone who would face future harm (CB 371 at [177]).
In Ground 1 of the Amended Application, the applicant claims that he was denied natural justice from the Tribunal as it did not give any weight to the supporting documents provided by various politicians in Bangladesh. The Tribunal dealt with this issue in its Findings and Reasons section of the Decision Record at [72]-[73] where it stated:
72. I put to Mr K [applicant’s friend] that I also had a letter which he had written to the Department after he had come back from Bangladesh in which he had said that the applicant, of [address], had been ‘living with me since hi is in Australia as a flat mate’ (see folio 63 of the Department’s file [file number]). Mr K said that the applicant had asked for a financial support letter from him. He said that since he was a social worker and was involved in politics here he had given the applicant such a letter. I put to Mr K that the letter said that the applicant had been living with him as his flat mate at [address], since the applicant had arrived in Australia. Mr K said that he had given this letter to the applicant but in reality the applicant had not lived with him.
73. I put to Mr K that I might conclude that he was lying to the Tribunal and that in fact the applicant had met up with him immediately after the applicant had left his ship and had come to stay him at [address]. I might conclude that he had helped the applicant with his application and with his statement (because parts of it were very similar to a statutory declaration which he had made in support of his own application for a protection visa: see the decision of the tribunal (differently constituted) in relation to Mr K, [case number], dated 29 June 2007). I put to him that I might conclude that he had made his statutory declaration on 13 March 2012 which had been submitted to the Tribunal in an attempt to help his friend. Mr K said that the applicant was not his friend and that he had never seen him before.
(CB 348)
The applicant advanced the argument that the Tribunal failed to contact his referees to check the authenticity of the respective letters while he was continuously requesting the Tribunal to take steps and make those inquiries. The Tribunal indicated that it did not take that course of action, rather, it relied on the approach in the decision in Minister for Immigration and Citizenship v SZIAI (supra) at [25]-[26], where their Honours French CJ, Gummow, Hayne, Kiefel and Bell JJ stated:
25. Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a "duty to inquire", that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case. There are two reasons for that.
26. The first reason is that there was nothing on the record to indicate that any further inquiry by the Tribunal, directed to the authenticity of the certificates, could have yielded a useful result. There was nothing before the Federal Magistrates Court or the Federal Court to indicate what information might be elicited if the Tribunal were to undertake the inquiry which was said to be critical to the validity of its decision. The inquiry suggested was telephone contact with the persons whose mobile telephone numbers were shown on the certificates. But the question whether the certificates contained false statements as to authorship or otherwise would not be able to be determined by calls placed to those telephone numbers. If the respondents to the calls admitted to the Tribunal or its officers that the certificates contained false statements, then the grounds for a decision adverse to SZIAI would have been strengthened. If the respondents said that the contents were true, it would have added nothing to the statements effectively conveyed by the certificates themselves. The second reason is that the response made by SZIAI's solicitors to the Tribunal's letter of 14 January 2008 itself indicated the futility of further inquiry. There was nothing that SZIAI or his solicitors were able to add, beyond a bare denial of what appeared in the National Ameer's letter. For these reasons there is no factual basis for the conclusion that the failure to inquire constituted a failure to undertake the statutory duty of review or that it was otherwise so unreasonable as to support a finding that the Tribunal's decision was infected by jurisdictional error.
(footnote omitted)
A significant factor in this respect is that the Tribunal acknowledged that the various documents were signed by the respective politicians whose names appeared on them, but, as the content of each letter appears to have been drafted using a formulaic approach and all were undated, this indicated that the reliability of the contents therein may be in question. However, the Tribunal Member’s major concern was that the essential theme of all of this correspondence contradicts evidence given by the applicant himself.
Ms Buchanan referred the Court to the decision of the Full Court of the Federal Court in SZNPG (supra) which addressed the issue of a decision-maker’s refusal to give certain evidence sufficient weight to overcome concerns arising from consideration of all other evidence. The Court found that a wrong finding of fact is not an error of law nor is unsound reasoning an error of law. Their Honours North and Lander JJ (with Katzmann J agreeing) made the following observations at [24]-[27]:
24. The weight to be given to the baptismal certificate was a matter for the RRT. The RRT was not precluded from giving the baptismal certificate little weight because it had not first decided that the first respondent was a liar. Indeed, in our opinion, the RRT should not be encouraged to make findings of that kind: c.f. Smith v New South Wales Bar Association [1992] HCA 36; (1992) 176 CLR 256 at 271. It is enough if the RRT is not persuaded that the claims which have been made out for the RRT to say so. It is not a precondition to the consideration of the weight to be given to any particular evidence that the RRT find that the particular applicant is a liar.
25. Where the RRT has conducted an inquiry in accordance with Division IV of Part 7 of the Act and considered all of the evidence which has been adduced in relation to the claims proffered by the applicant for the Protection (Class XA) visa, and has reached a state of satisfaction that the claims have no foundation in fact, the RRT is not obliged to reach a different conclusion because there is a piece of evidence which supports the applicant’s case. Moreover, if the RRT rejects the applicant’s claims and fails to give sufficient weight to the piece of evidence relied upon so as to allow the applicant’s application, that is not evidence of either pre-judgment or apprehended bias.
26. Neither does the RRT fall into jurisdictional error if it fails to express its reasons for rejecting corroborative evidence with full clarity. In the present case, the RRT dealt with the evidence of a baptismal certificate by saying that it was "not prepared to give this document sufficient weight to overcome its concerns with the applicant’s evidence". It would have assisted if the RRT had explained its rejection in greater detail. As we have said, it was implicit in the reasoning of the RRT that it did not regard the baptismal certificate as genuine. It was desirable that the RRT set out the basis of the doubts concerning the baptismal certificate beyond simply its doubts concerning the first respondent’s evidence generally. This deficiency in the way the RRT articulated its reasoning may explain why the federal magistrate said the RRT failed to engage in "an active intellectual process of considering the corroborative material", and that the RRT "failed to engage in any meaningful consideration of the purported baptismal certificate". The brevity with which the RRT dealt with the corroborative evidence is unsatisfactory, but does not justify the conclusion drawn by the Federal Magistrate that the RRT fell into jurisdictional error.
27. Of course, if the RRT failed to consider an element of an applicant’s claim, that would amount to jurisdictional error because Division IV of Part 7 of the Act requires a review of the whole of the applicant’s claims. In that case, the RRT would have failed to discharge its “imperative duties.” Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597; NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1.
The decision in SZNSP (supra), which was heard contemporaneously with SZNPG (supra), addressed the issue of whether the Tribunal had given weight to corroborative evidence and found that the Tribunal did not fall into jurisdictional error by first making an assessment of the applicant’s credit then giving attention to the corroborative evidence. Corroborative evidence is assessed and weighed in balance with all other evidence. Their Honours North and Lander JJ (with Katzmann J agreeing) stated at [36] in SZNSP:
36. When a decision maker has conducted a hearing of the kind which is conducted by the RRT and has heard the applicant, and has reached the tentative conclusion that the applicant’s claims have been fabricated, the decision maker is entitled in our opinion to reject evidence which would, if accepted, have corroborated the applicant’s account. That does not mean that any evidence of corroboration could be rejected. It would depend upon the nature, content and quality of the corroborative evidence before a decision maker could determine to reject it out of hand…
In SZNSP (supra) her Honour Katzmann J, after agreeing with the reasons of North and Lander JJ, added some short observations of her own. At [50] her Honour stated:
50. …[H]aving reached such a conclusion, as French J said in WAJQ v Minister for Immigrationand Multicultural and Indigenous Affairs [2004] FCA 1580 at [20]- [21], there is nothing illogical about deciding that evidence proffered as corroboration of an account found to be false deserves little or no weight. Here, where the credit of the first respondent was very much in issue, there was certainly nothing illogical or irrational in rejecting the document she submitted to bolster it in the absence of any proof that the document was genuine or its contents unaffected or uninfluenced by her.
Prior to considering the applicant’s corroborative evidence, being the letters signed by various politicians, the Tribunal had reviewed the applicant’s evidence in considerable detail and highlighted discrepancies and inconsistencies in the applicant’s claims. These claims specifically related to the applicant’s involvement with the BNP and the letters signed by various BNP office holders were advanced as corroborative evidence in support of those claims. The Tribunal’s findings in relation to various claims made by the applicant concerning his membership and involvement with BNP are summarised at [178] of the Decision Record, where it stated:
178. …For the reasons given above, despite the involvement of these members of his family in the BNP I do not accept that the applicant himself has ever been attacked by members of the Awami League or the BCL. I consider that he has been able to live safely and without fear of being persecuted in his home in Chittagong. I do not accept on the evidence before me that there is a real chance that money will be extorted from the applicant or that he will be threatened, attacked, arrested, killed or otherwise persecuted for reasons of any political option imputed to him as a result of the involvement of other members of his family in the BNP or his membership of the particular social group constituted by his family in Bangladesh.
(CB 372)
In respect of the letters submitted by the applicant, it can be inferred from the Tribunal’s acceptance that the people who signed the letters had in fact done so, but its rejection of the contents of the letters in light of its credibility finding in relation to the applicant, the Tribunal was of the view that contact with the letter writers would not overcome its credibility concerns, therefore, there were no critical facts in issue. In SZMJM (supra) per Bennett J, her Honour stated at [42]:
42. The Minister submits that the test in SZIAI has not been established because the Tribunal’s concerns stemmed not from the material provided by the appellant, which is now the subject of his submissions, but rather from problems with the appellant’s own testimony. None of those findings concerned a particular fact which, the Minister says, if ascertained, could have led to a modification of the Tribunal’s ultimate conclusions. There was no specific finding which hinged on a rejection of a particular matter which could have been obviously ascertained through the making of further inquiries by the Tribunal. Accordingly, the Minister says, there was no critical fact, the existence of which could have been easily ascertained and which was sufficiently linked to the outcome so as to affect the review.
In SZNWF v Minister for Immigration and Citizenship (supra) his Honour Nicholas J considered the circumstances where the Tribunal gave no weight to documents provided by the applicant in support of his claims. The question was whether the Tribunal had a duty to make inquiries regarding the documents, and whether the failure to make inquiries constituted jurisdictional error. His Honour stated at [43]-[44]:
43. As in SZMJM, the issue in this case was not merely the authenticity of the documents (such as may be the case with what purport to be a passport or a birth certificate the authenticity of which is in issue) or whether the persons named in the documents actually wrote them, but also whether, if the documents were authentic and actually written by the persons named in them, their contents were otherwise accurate and reliable.
44. Furthermore, the Tribunal’s decision did not hinge on the rejection of a particular matter, which could have been easily ascertained had the Tribunal conducted an obvious inquiry. The refusal by the Tribunal to attribute any weight to the various documents was not the only reason why the Tribunal rejected the appellant’s claims. Rather, the Tribunal reached its conclusions on the basis of a combination of factors arising from the appellant’s evidence, both oral and documentary. The federal magistrate correctly held that what was critical to the Tribunal’s decision was its finding that the appellant did not have a genuine fear of persecution. This finding was based on various factors including his travel history, conduct inconsistent with a genuine fear of persecution, inadequate explanations for delay and the constant expansion of his claims and evidence directed to addressing concerns raised by the delegate in the delegate’s decision (for example, his work with the Tamils). The Tribunal was entitled to rely on the country information before it, as well as the appellant’s own evidence and conduct, to form its own view as to the reliability of the documents and the weight to be attributed to them. In these circumstances, it cannot be said that had the Tribunal made the suggested inquiries a different result would have ensued. I am therefore not satisfied that the suggested inquiries were sufficiently linked to the Tribunal’s decision. As Jagot and Foster JJ said in Minister for Immigration and Citizenship v Dhanoa (2009) 180 FCR 510 at [50]:
...information cannot be “centrally relevant” (as required to found a case of an unreasonable failure to inquire) when the only indications available at the time were that the information, even if obtained, would not have yielded a different outcome.
At the resumed hearing on 24 May 2012, the Tribunal Member put to the applicant the nature of his concerns in respect of correspondence that had been provided as attachments to a letter dated 5 August 2011 (CB 53-45). The individual letters are described in the Decision Record in the section headed Claims and Evidence at [27]-[28] (CB 339-340). In its Findings and Reasons the Tribunal made the following observations at [115]-[116]:
115. I referred to the fact that the applicant had produced a number of letters from politicians and I put to him that the information available to me indicated that it was common for political party membership confirmation letters to be issued in Bangladesh even if the information in them was incorrect (UK Home Office, Country of Origin Information Report – Bangladesh, 11 August 2009, paragraphs 35.01). I noted that the applicant had also produced a ‘Release Card’ from a hospital in corroboration of his evidence that he had been in hospital from 10 January to 18 January 2008. I put to him that the document in question had been signed on 10 January 2008 and that the interpreter at the previous hearing had confirmed that this was the correct translation of the date on the document. I put to the applicant that this cast doubt on whether this document was a genuine document.
116. I put the applicant that the information available to me indicated that forged or fraudulently obtained documents were readily available in Bangladesh and that genuine medical certificates containing incorrect information could also be issued (see Research Directorate, Immigration and Refugee Board of Canada, ‘Bangladesh: reports of fraudulent documents’, 20 September 2010, BGD103532.E; UK Home Office, Country of Origin Information Report – Bangladesh, 11 August 2009, paragraphs 35.01-35.03; Research Directorate, Immigration and Refugee Board of Canada, ‘Bangladesh: Prevalence of fraudulent; forged or fake documents and genuine documents obtained by fraudulent means…’ 8 August 2005, BGD100388.E; DFAT cable DA19732, dated 26 July 1988, CX2690). He said that he requested that the Tribunal check with Bangladesh to verify that they had the copies of these papers.
(CB 357-358)
I am satisfied that the applicant’s claim contained in Ground 1 in respect of the weight placed by the Tribunal on the various letters from politicians in Bangladesh cannot be sustained and should be dismissed.
In Ground 2 of the applicant’s Amended Application, while he acknowledges that the Tribunal Member accepted that he and his family members were involved with the BNP politically, he argues that the Tribunal failed to take into account that low profile political leaders were facing high risk in Bangladesh, rather than high profile leaders. The applicant’s involvement in the BNP is addressed at [174] of the Decision Record, where the Tribunal stated:
174. I accept that the applicant has had some involvement in the BNP, but at a low level, and that in that capacity he has campaigned against the Awami League and has made comments about the government at times when the Awami League has been in government. Having regard to the problems with his evidence which I have outlined above I do not accept that he was attacked by people from the Awami League on Sandwip Island on two occasions (once when returning home from the local market at Nazir Hat and once at his home at Eid) after the 1996 elections, nor that Jafor Ullah Titu who is now the mayor of Sandwip or other local leaders, members or activists of the Awami League on Sandwip Island threatened him. I do not accept that the applicant moved to his uncle’s house in Dhaka in December 2002 because people from the Awami League or the police were looking for him in Chittagong or in ‘terrorists’ discovered that he was staying at his uncle’s house in Dhaka and threatened or attacked him or his uncle and aunt there.
(CB 370)
The Tribunal concluded that there was no “real chance” of persecution for reasons of the applicant’s political opinion as a result of his involvement with the BNP. This finding is set out at [177] of the Decision Record where the Tribunal stated:
177. I accept that if the applicant returns to his home in Chittagong now or in the reasonably foreseeable future he will resume his low level involvement in the BNP. For the reasons given above I do not accept that he has ever been attacked by members of the Awami League or the BCL because of his involvement in the BNP, nor that the police or the RAB have ever been seeking him in Bangladesh. I likewise do not accept that in September 2010 some people made him sign a stamped paper that he would pay them 20 lacs taka within two weeks, nor that they told him to stop his involvement in the BNP. While I accept that, as referred to in the applicant’s representatives’ submission dated 14 March 2012, some leaders, members and supporters of the BNP have been arrested and that some leaders and activists of the BNP have been killed, I do not accept on the evidence before me that there is a real chance that money will be extorted from the applicant or that he will be threatened, attacked, arrested, killed or otherwise persecuted for reasons of his political opinion as a result of his involvement in the BNP if he returns to Bangladesh now or in the reasonably foreseeable future.
(CB 371)
Next, the Tribunal addressed the applicant’s claim in respect of his family being members of the BNP. At [178] of the Decision Record the Tribunal stated:
178. I accept that members of the applicant’s family are also involved in the BNP. I accept, in particular, as he claims, that a relative of his named [NAME] (who he said at the hearing on 16 March 2012 was his ‘uncle’ but who he identified at the hearing on 24 May 2012 as his cousin’s daughter’s husband) was brought back from Dhaka by the RAB and killed in a place called Mirsarai, about 30 kilometres from Chittagong, on 16 September 2010. I likewise accept that he has a cousin who he named as [NAME] who was a Commissioner in the BNP before January 2011 and whose leg was cut in an attack in the bazaar of Nazir Hat on Sandwip Island around one and a half months before the hearing on 24 May 2012. For the reasons given above, despite the involvement of these members of his family in the BNP I do not accept that the applicant himself has ever been attacked by members of the Awami League or the BCL. I consider that he has been able to live safely and without the fear of being persecuted in his home in Chittagong. I do not accept on the evidence before me that there is a real chance that money will be extorted from the applicant or that he will be threatened, attacked, arrested, killed or otherwise persecuted for reasons of any political opinion imputed to him as a result of the involvement of other members of his family in the BNP or his membership of the particular social group constituted by his family in Bangladesh.
(CB 371-372)
In the circumstances the Tribunal’s findings were open to it on the evidence and material before and for the reasons it gave. Otherwise, the applicant’s complaint in respect of his involvement with the BNP does not identify any jurisdictional error on the part of the Tribunal and appears to be a disagreement with the findings and conclusion of the Tribunal. Such complaints invite merits review which this Court cannot undertake. The following was stated in the SZNPG (supra) by their Honours North and Lander JJ at [20]:
20. It was not for the Federal Magistrates Court, nor for this Court, to review the merits of the RRT’s decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272; Minister for Immigration and Multicultural Affairs v Eshetu[1999] HCA 21; (1999) 197 CLR 611. A wrong finding of fact is not an error of law: Waterford v The Commonwealth [1987] HCA 25; (1987) 163 CLR 54 at 77. Unsound reasoning is not an error of law: Reg v The District Court; Ex parte White [1966] HCA 69; (1966) 116 CLR 644 at 654; Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 356.
Accordingly, Ground 2 of the Amended Application cannot be sustained and should be dismissed.
In Ground 3 of the Amended Application the applicant claims that the Tribunal made a comment that there was no real risk in the foreseeable future that he would be punished if he was forced to return to Bangladesh, and that this comment ignores the “political circumstances” and the “reality of political violence” in Bangladesh. In the Decision Record the Tribunal recorded details submitted by the applicant’s representative, Mr David Bitel of Parish Patience Immigration Lawyers, to the Tribunal, prior to the hearing.
This information is effectively summarised by the Tribunal in the Decision Record under the heading Claims and Evidence at [43]-[47] as follows:
43. In a submission dated 14 March 2012 the applicant’s representatives said that the applicant feared being persecuted if he returned to Bangladesh for reasons of his political opinion in support of the BNP and his membership of a particular social group as a member of a family of BNP, supporters and members and as a ‘Bangladeshi ship deserter’. They submitted that ‘given the current ongoing human rights problems and political instability involving well documented attacks on opponents of the current Awami League Government in Bangladesh, there is no meaningful option there of relocation or obtaining effective protection from the Bangladeshi authorities.
44. The applicant’s representatives quoted various media reports, news releases or bulletins, online news items, reports and a research response prepared by the Refugee Documentation Centre of Ireland which they submitted showed that leaders, members and supporters of the BNP were at risk of arbitrary arrest, detention, torture or other serious harm, that leaders and activists of the BNP were at risk of being killed by supporters of the Awami League and by the security forces and that the state was either unable or unwilling to protect local BNP activists or supporters.
45. The applicant’s representatives also quoted from various reports, media reports and other research response prepared by the Refugee Documentation Centre of Ireland which they submitted showed that the security and political situation in Bangladesh remained volatile, and dangerous, that human rights violations continued in Bangladesh despite government promises to curb them, that opposition party members and supporters faced harassment from the authorities and from members and supporters of the ruling Awami League, that there was impunity for human rights abusers in Bangladesh and that there was no meaningful application of the rule of law and democratic values in Bangladesh.
46. The applicant’s representatives submitted that the applicant had already faced problems in Bangladesh in the past and that he would be persecuted if he returned to Bangladesh because Awami League members and supporters, either with the passive or active support of the government, were able to persecute persons who held a political opinion opposed to the Awami League.
47. The applicant’s representatives submitted that the applicant also faced serious harm as a member of the particular social group defined as a family unit of BNP supporters and members but the evidence to which they referred in support of this submission related to abductions and attacks on a human rights defender and journalist and a businessman and political activist respectively. They submitted that the RAB engaged in arbitrary arrests, illegal detention and torture of opposition political activists, in particular BNP members, and that there were credible reports that Awami League supporters threatened and extorted money from BNP supporters.
(CB 343)
Moving to the decision made by the Tribunal in respect of this issue, it was not based on the rejection or ignorance of independent country information as to the level of safety or stability in Bangladesh. Rather, the Tribunal based its conclusions on the applicant’s particular circumstances as described by him in oral submissions during the hearing, together with supporting written submissions. Significantly, the Tribunal did not accept the applicant’s claimed level of political involvement, rather, it formed the view that if he was to return to Bangladesh, and particularly to Chittagong, he would resume “low level involvement” in the BNP.
The Tribunal in its Findings and Reasons addressed this issue at [177]-[178] of the Decision Record where it stated:
177. I accept that if the applicant returns to his home in Chittagong now or in the reasonably foreseeable future he will resume his low level involvement in the BNP. For the reasons given above I do not accept that he has ever been attacked by members of the Awami League or the BCL because of his involvement in the BNP, nor that the police or the RAB have ever been seeking him in Bangladesh. I likewise do not accept that in September 2010 some people made him sign a stamped paper that he would pay them 20 lacs taka within two weeks, nor that they told him to stop his involvement in the BNP. While I accept that, as referred to in the applicant’s representatives’ submission dated 14 March 2012, some leaders, members and supporters of the BNP have been arrested and that some leaders and activists of the BNP have been killed, I do not accept on the evidence before me that there is a real chance that money will be extorted from the applicant or that he will be threatened, attacked, arrested, killed or otherwise persecuted for reasons of his political opinion as a result of his involvement in the BNP if he returns to Bangladesh now or in the reasonably foreseeable future.
178. I accept that members of the applicant’s family are also involved in the BNP. I accept, in particular, as he claims, that a relative of his named [NAME] (who he said at the hearing on 16 March 2012 was his ‘uncle’ but who he identified at the hearing on 24 May 2012 as his cousin’s daughter’s husband) was brought back from Dhaka by the RAB and killed in a place called Mirsarai, about 30 kilometres from Chittagong, on 16 September 2010. I likewise accept that he has a cousin who he named as [NAME] who was a Commissioner in the BNP before January 2011 and whose leg was cut in an attack in the bazaar of Nazir Hat on Sandwip Island around one and a half months before the hearing on 24 May 2012. For the reasons given above, despite the involvement of these members of his family in the BNP I do not accept that the applicant himself has ever been attacked by members of the Awami League or the BCL. I consider that he has been able to live safely and without the fear of being persecuted in his home in Chittagong. I do not accept on the evidence before me that there is a real chance that money will be extorted from the applicant or that he will be threatened, attacked, arrested, killed or otherwise persecuted for reasons of any political opinion imputed to him as a result of the involvement of other members of his family in the BNP or his membership of the particular social group constituted by his family in Bangladesh.
(CB 371-372)
The Tribunal acknowledged there are other members of the applicant’s family who have had greater participation in the activities of the BNP which has resulted in some receiving serious injury, including one fatal incident. However, the evidence given by the applicant indicated that his personal involvement is at a low level and is unlikely to attract attention of rival political organisations.
The Tribunal accepted that the independent country information indicated political violence occurred in Bangladesh and is directed towards political leaders or activists. However, the Tribunal was not satisfied that the applicant could plausibly have been a target for the forms of serious harm he claimed, having regard to the applicant’s low level of involvement.
The Tribunal in the Decision Record addressed the issue of complementary protection criteria in its review of the relevant law that applied in respect of the applicant’s claims and its findings. In its Findings and Reasons the Tribunal addressed the issue of complementary protection in some detail. This is not raised at all by the applicant in the review proceedings before this Court and that may be due to the applicant having formed the view that there was no error in this section of the Decision Record or, alternatively, because the applicant is a self-represented litigant and unaware of these provisions. A fair reading of the Tribunal’s Decision Record does not suggest that the applicant squarely raised any other claims or made any other submissions about his entitlements to complementary protection: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1.
Having found that the applicant had some low level involvement in the BNP the Tribunal was required to consider whether the applicant would face a real risk of significant harm on that basis when considering the issue of complementary protection. In relation to that consideration the Tribunal was not satisfied that the applicant ever had a political profile as an activist or a leader of the BNP in Chittagong, or more widely in Bangladesh, such that he would have been harmed for this reason. The Tribunal accepted the applicant had a low level involvement with the BNP, but the Tribunal was not satisfied that the level of involvement was such that he would have been seen as a party activist by others in the BNP or by those affiliated with opposition parties. The Tribunal found that whilst it accepted some low level involvement by the applicant in the BNP, such level of involvement could not plausibly have made the applicant a target for the forms of significant harm that he claims.
I am satisfied that the Tribunal has addressed the issue of complementary protection criteria and that this does not give rise to jurisdictional error and, accordingly, requires no further comment. Further, I have reviewed the Court Book and the Decision Record, and a fair reading of them reveals no error of law on the part of the Tribunal.
Consequently, the Amended Application must fail as it pleads no sustainable grounds and should be dismissed, with costs awarded to the Minister.
I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of Judge Lloyd-Jones
Associate:
Date: 7 March 2014
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