Jahangir v Minister for Immigration & Multicultural Affairs

The Tribunal's decision 7 After referring to the legislative framework, the Tribunal considered Mr Jahangir's claims and evidence.

Claims and evidence 8 According to the applicant's statutory declaration declared 2 May 2000, he became an active member of the Purba Bangla Communist Party in the early 1980s. The applicant said that he became aware of deep corruption in the party and tried to change it. His efforts antagonised the corrupt members of the party who influenced the local police falsely to implicate him in two murders. At the same time as the police were trying to arrest him, members of the Communist Party were also trying to kill him. The applicant then became interested in the conservative Muslim party, Jamat-e-Islami and became a member. It is not clear when this occurred but it was probably between 1990 and 1992. Mr Jahangir claimed that eventually he became the joint secretary of the Kesabpur Thana branch of the organisation. At that time, Jamat-e-Islami was a coalition partner with the Bangladesh National Party ("BNP") government. The applicant claimed that he became very active in Jamat-e-Islami and that he again became the target of violence as a result of his party's attack on the corruption in the BNP. He claimed that in September 1992 he was attacked by BNP thugs and was severely injured. He claimed that at this time he was still being sought by the police on murder charges and that the Communist Party members were still pursuing him. 9 The applicant came to Australia in about 1992 on a temporary residence visa and completed an associate diploma. He returned to Bangladesh in 1997 believing that he would be safe because a new government was in power. Upon returning to Bangladesh, he discovered that his situation had not changed; the court cases lodged against him remained on foot and the police were still looking for him. Later that year, while leading a Jamat-e-Islami procession, he was attacked by terrorists supporting the Awami League, the political party in power. 10 Feeling that his personal security was threatened, he returned to Australia. He claimed that a partner in a prominent law firm told him that he might be able to obtain a visa by participating in a class action by people who arrived in Australia lawfully prior to 1 November 1993. This action was not successful and the applicant then applied for a protection visa.

Independent Evidence 11 The Tribunal considered independent evidence as to the status of the Jamat-e-Islami party, the incidence of political violence and the Bangladesh Government's approach to religion-based political organisations. This evidence, which the Tribunal accepted, showed that the Jamat-e-Islami party operates normally "within Bangladesh's sometimes heated but ultimately democratic political process" and that, although there are occasional acts of political violence, the party is not exclusively the victim of such acts nor is it targeted by the Government.

Tribunal's assessment of the applicant's credibility 12 The Tribunal accepted that the applicant is a conservative Muslim who supported the Jamat-e-Islami party. However, it accepted very little else of the applicant's story. The Tribunal stated the applicant was an "unreliable witness" and that it was, "utterly unconvinced by the Applicant's account of his political awakening, growth and deepening commitment, in particular by his claimed change from the Left to the Right simply over the claimed insult to socialist objectives caused by a few individual comrades". It was also unconvinced by the: "claimed hold that a few communist political operators, however corrupt, are supposed to have maintained for so long in Bangladesh, let alone throughout two or three different and eminently opposed political administrations". [emphasis in original] 13 The Tribunal had further misgivings about the applicant's story. · It noted that the applicant was charged by the police with murder and yet was never actually arrested. · In explaining why he had not applied for a protection visa on his first visit to Australia, the applicant stated that he had believed that the completion of a diploma would entitle him to remain in Australia, despite the fact that the terms of his visa were to the contrary. The Tribunal did not accept that he was unaware of the terms of his visa and accordingly did not accept his explanation for failing to apply for a protection visa on his first visit to Australia. · The Tribunal commented that, while apparently concerned about his safety, the applicant stayed in Bangladesh to fulfil the relatively complex and rigorous requirements for a study visa and was able to obtain the necessary clearance despite the existence of outstanding murder charges against him. · The fact that the applicant appeared to be able to enter and leave Bangladesh with impunity was inconsistent with his story of persecution and vulnerability. · The Tribunal found the applicant's claimed reasons for considering it safe to return to Bangladesh "highly inconsistent with what one would reasonably expect to have been the concerns of a person in his claimed predicament". · The Tribunal found the applicant's delay in applying for protection in Australia after he returned here in 1997 unconvincing.

Tribunal's conclusion 14 The Tribunal was not satisfied that the applicant was a person to whom Australia has protection obligation under the Convention and affirmed the decision of the Delegate.

The present application for an order of review 15 In the amended application filed in Court on 12 October 2000, the grounds of the application to this Court are:

(a) the Tribunal made errors of law under s 476(1)(e);

(b) the Tribunal based its decision on the existence of facts that did not exist in circumstances where there was no evidence or other material before it that justified its decision (s 476(1)(g)); and (c) the Tribunal was in breach of its obligations under s 430.

Error of law 16 The amended application for review provides the following particulars in relation to the claim that the decision of the Tribunal is reviewable under s 476(1)(e) of the Act: "The evidence of the Applicant supported a finding of persecution. This evidence included that: (i) Religious based political based organizations were targeted by the Government; (ii) Violence is a feature of political life in Bangladesh; (iii) Senior members or office bearers are more often targeted; and (iv) The Applicant is a senior office bearer." 17 The applicant's written submissions clarified these particulars. It was submitted that the above four matters were not addressed by the Tribunal and that they would, of themselves, be sufficient for a finding of persecution. 18 This submission is an invitation to a review on the merits which is beyond the jurisdiction of this Court. The grounds of review are limited to those identified in s 476 of the Act. In any event the applicant's claim is not substantiated. The Tribunal did address each of the above four matters. It found that, although Bangladeshi politics involved occasional isolated incidents of violence, the Jamat-e-Islami party was not exclusively the victim of political violence. It specifically mentioned that "[i]t has recently been reported that the [Awami League] government has taken a strong position with regard to religion-based organisations but has not targeted the Jamat-e-Islami in any serious way". This finding was based on a report from the Bureau of Democracy, Human Rights and Labor. 19 The applicant's basic problem is one of credibility. The Tribunal did not believe his account of events in Bangladesh. It concluded that he was "an unreliable witness in the present matter". It therefore did not need to consider the position of senior members and office bearers of political parties because it did not accept that the applicant had such a role. The Tribunal rejected the two testimonials provided by the applicant, which were proffered by the applicant as evidence that he was an office holder of the Jamat-e-Islami party. In my view, the Tribunal's findings with respect to the two testimonials, considered in light of its findings in relation to the applicant's credibility, indicate that the Tribunal did not accept that the applicant was an office holder of the Jamat-e-Islami party. 20 Even if the Tribunal had found that the applicant was an office bearer of a party that was likely to be targeted by the Government, it need not necessarily decide in his favour. For example, the Tribunal may have found that, although the applicant would be 'targeted', he would not be 'persecuted'. The Tribunal's task is to decide whether the applicant has a well-founded fear of persecution. It should not be diverted from this task by any obligation to make a particular decision based on a set of factual circumstances. Compliance with section 430(1)(b) of the act 21 Mr Trevallion, counsel for the applicant, submitted that the Tribunal did not give reasons as to why it did not place any weight on the four matters outlined in paragraph 16 and that this constituted a failure to comply with s 430(1)(b) of the Act. The Full Court in Minister for Immigration & Multicultural Affairs v Singh [2000] FCA 845 at [46] was quite clear that s 430 does not require the Tribunal to give reasons for rejecting or giving no weight to evidence or other material which would tend to undermine any of its findings. However, Mr Trevallion relied on the qualification in the same paragraph that: "if one of the reasons which actually induced the [Tribunal] to come to its decision was that it decided to reject or place no weight on particular material, then s 430(1)(b) would require disclosure of that element of the [Tribunal's] actual reasoning process". 22 As outlined above, the Tribunal did make findings in relation to each of matters (i), (ii) and (iv). As Mr Godwin pointed out, the Tribunal did not need to consider whether office bearers of political parties would be targeted by political violence given its findings on the applicant's political involvement; Abebe v Commonwealth (1999) 197 CLR 510 at [85] per Gleeson CJ and McHugh J.

No evidence 23 The applicant claimed that the Tribunal made a decision based on the existence of a fact which did not exist including that: (a) the Tribunal assumed that the applicant was claiming that charges against him were formally laid; and (b) the applicant was not subject to political persecution. 24 In relation to the charges against the applicant, Mr Trevallion referred to independent evidence that was before the Tribunal which stated that political activists are often detained without formal charges being laid. He submitted that this evidence was not considered by the Tribunal and, alternatively, that the Tribunal misunderstood the nature of this evidence. However, the fact of the matter is that the Tribunal did not accept the that the applicant had been charged formally or informally because it did not believe that his profile with the authorities was such as to warrant any charges. This was a finding that was open to the Tribunal on the evidence before it and this Court is not entitled to interfere with this finding. 25 In any event, the Tribunal's view that the applicant was alleging that formal charges were made against him was based on its understanding of the applicant's written and oral evidence. The Tribunal stated "[h]e claimed that false charges were filed against him by corrupted police supporting his former comrades the communists". In his statement declared on 2 May 2000 the applicant states that "the local police put my name in the two-murder cases [sic]" and mentions that court cases had been lodged against him. This is sufficient to show that there was evidence before the Tribunal tending to prove that the applicant was claiming formal charges had been made against him. 26 I agree with Mr Godwin's submission that the applicant's claim in relation to the second finding was an attempt to obtain a review on the merits. Mr Godwin referred to the case of Yilan v Minister for Immigration & Multicultural Affairs (1999) 55 ALD 600 at [58] where it is stated that "Review of basic error in fact finding lies at the border between traditional judicial and merits review. It is appropriate therefore that the non-existence of the particular fact found by the Tribunal to be proved be established in the judicial review process according to the rules of evidence." 27 In my opinion, the Tribunal's finding that the applicant had not been subject to political persecution was critical to its finding that he did not have a well founded fear of persecution in the future. The Tribunal's decision was therefore based on this finding; Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212 at 220. There was evidence before the Tribunal capable of supporting this finding. In particular, the Tribunal relied on its findings in relation to the applicant's credibility as well as independent evidence to the effect that, despite the existence of political violence in Bangladesh, the Jamat-e-Islami party was not specifically targeted. The Tribunal simply did not believe the applicant's claims regarding his history of political persecution in Bangladesh. 28 Accordingly, the applicant's claims under s 476(1)(g) of the Act must fail.

Conclusion 29 The application should be dismissed with costs. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone .

Solicitor for the Respondent: Sparke Helmore Solicitors