decision
18 In order for the applicant to succeed, he must show that s 474 of the Migration Act 1958 (Cth) ('the Act') does not apply to the decision made by the Tribunal. As stated by the Full Court of the Federal Court in Applicant NAOB of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 33 at [11], the effect of the High Court's decision in Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 can be summarised as follows:
'In summary, the High Court held that s 474 insofar as it rendered final and conclusive a privative clause decision and protected it from challenge, only did so in respect of "decisions made under…[the] Act". Thus, decisions which involve a failure to exercise jurisdiction or involve an excess of the jurisdiction conferred by the Act are not, as a matter of statutory construction, decisions made under the Act and are therefore not privative clause decisions protected by s 474. Put shortly, s474 does not apply to decisions which involve jurisdictional error, and does not apply, in particular, to decisions which do not comply with the principles of natural justice'.
19 Section 36(2) of the Actprovides that a criterion for a protection visa is that the applicant for the visa is a non‑citizen in Australia to whom Australia has protection obligations under the Convention. Section 91R(2) of the Act provides that Article 1A(2) of the Convention does not apply in relation to persecution for one or more of the reasons mentioned in that Article, unless that reason is the essential and significant reason for the persecution; and the persecution involves serious harm to the person and systematic and discriminatory conduct.
20 The issues which the Tribunal is required to consider in order to determine whether the definition of 'refugee' in Article 1A(2) of the Convention is met were set out by the High Court in Guo at 570:
'(1) the applicant must be outside his or her country of nationality; (2) the applicant must fear "persecution"; (3) the applicant must fear such persecution "for reasons of race, religion, nationality, membership of a particular social group or political opinion" ; and (4) the applicant must have a "well-founded" fear of persecution for one of the Convention reasons.'
21 The basis of the respondent's submissions is that the applicant did not articulate a claim before the Tribunal that he feared persecution as a member of the claimed social group.
22 There can be no challenge to the finding of fact by the Tribunal that the applicant had no subjective fear of persecution. That finding was open to the Tribunal on the facts as considered and found. If the respondent is correct and the issue of membership of the claimed social group was not raised or the facts as found by the Tribunal do not support such a claim, the appeal fails.
23 However, in my opinion, a reading of the Tribunal's decision demonstrates that the issue of membership of a particular social group, that is, Bangladeshi journalists who had written articles critical of political groups or their supporters ('the claimed social group') was raised before the Tribunal.
24 It is apparent from the recitation of the applicant's claims and evidence before the Tribunal that the Tribunal acknowledged the applicant's claim that 'he was one of a very few outspoken journalists in Bangladesh and his life was at risk'. What follows in the Tribunal's decision is a recitation of the applicant's stated activities in that professional capacity and the threats and assault to family and property that he said resulted.
25 The Tribunal then noted that the applicant also claimed to have been actively involved in politics as a supporter of the Jatiya Party and former President Ershad. The documents as summarised by the Tribunal included those related to violence against journalists and journalists who reported on illegal activities of government and autonomous bodies. The answers given by the applicant to questioning by the Tribunal made reference to articles he wrote as a journalist and problems that arose as a result, as well as his fears on a return to Bangladesh.
26 It was put to the applicant that the risk of harm was not for any of the reasons contained in the Convention. The applicant 'suggested that he or those who wished to harm him belonged to a particular social group'. The Tribunal accepted that 'members of the Bangladeshi media were sometimes victims of violence or harassment from the government and/or powerful individuals'.
27 Relevantly, the Tribunal concluded that, even if there were threats, it was because the people he had written about wanted to silence him or seek revenge and not because of his race, religion, nationality, membership of a particular social group or political opinion. In that regard, the Tribunal noted that an article critical of the Awami League caused him no problems and that he had criticised people from both the Awami League and the BNP.
28 Taken in context, the Tribunal did not fail to determine the claimed social group. It did consider his claim that he feared persecution as a member of the claimed social group. The Tribunal found, as a fact that was open to it, that there had been no persecution of the applicant as a member of that social group.
29 It was open to the Tribunal to reach findings as to the applicant's credibility, this being a function of the primary decision-maker, for which detailed reasons need not be given: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407, 423 per McHugh J. The Tribunal's findings as to the credibility of the applicant involved questions of fact and degree and were considered conclusions, based on reasons: W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703 at [64]-[69]. It accepted some of his claims, but rejected some aspects of his claims as being exaggerated and found that documents he submitted were false. No error is apparent in these findings of the Tribunal.
30 In any event, as the Tribunal did not accept that the applicant had a subjective fear of persecution, the second element of the test in Guo was not satisfied. Consequently, it was not necessary to consider the third and fourth tests of Guo. The Tribunal's conclusion was a factual finding that was open to the Tribunal and based on an adverse finding as to the applicant's credibility and cannot be challenged as jurisdictional error.
31 The applicant provided the Tribunal with material before the hearing took place. The applicant took up the opportunity to attend the hearing and present evidence and argument. There is no suggestion that the Tribunal failed to raise plainly and unambiguously the critical issues on which the application depended. In particular, the Tribunal put to the applicant that it had difficulty in believing him, as his evidence was very confused and he appeared to be making some of it up on the spot. Having put to the applicant this and other matters which were of concern to it, the Tribunal was unable to be satisfied that Australia owed the applicant protection obligations. There is no basis on which it can be said that the Tribunal failed to comply with s 425 of the Act.
32 Accordingly, grounds one to three of the appeal fail.
33 As to the fourth ground of appeal, it raises a matter of factual speculation not supported by the facts found by the Tribunal. The Tribunal found, on the basis of the applicant's evidence, that he did not write any more articles about the Swimming Federation, he did not return to the Bangladesh Football Federation and that he had not written any articles since those of 6 and 13 October 2000. The applicant does not seem to have given any evidence that he intended to write articles critical of the political groups or their supporters upon returning to Bangladesh. The basis of his case was alleged harm arising from past writings about sporting organisations. His own evidence was that he did not experience any problems when writing articles critical of political groups, such as the Awami League. Given the finding that the applicant did not face any harm prior to his departure or now, there was no basis in the applicant's case for a finding that he faced a real chance of persecution on his return. In view of the Tribunal's factual findings, the Tribunal was not obliged to consider the range of possible activities in which the applicant might choose to engage.
34 The applicant did not claim before the Tribunal or Delegate that his freedom of expression would be restricted upon return to Bangladesh. He claimed that he would not be able to get a job as a journalist. The applicant did give evidence in respect of this inability but gave no evidence of an intention to continue to write critically of political groups or their supporters or whether the present circumstances would give rise to a need or desire to write critically of sporting organisations. The applicant did give evidence that he ceased writing when he was warned to do so. There is no further evidence as to why the applicant ceased writing. Therefore, there was no evidence before the Delegate or the Tribunal to support this claim.
35 This fourth ground of appeal fails.
36 No particulars of the fifth ground of appeal are given. The Tribunal found that the applicant lost his job because he did not return to Bangladesh from Australia to resume his duties and not for a Convention reason. It did not accept that he was unable to work as a journalist. It did not accept that there was a restriction on his activity within the claimed social group. The applicant did not make a case before the Tribunal that journalists generally are restricted in their activities with respect to the 'identifying features' of the claimed social group, nor was there a factual basis put forward with respect to the applicant himself. As was pointed out by Gummow and Heydon JJ in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S154/2002 [2003] HCA 60 at [58], the Tribunal was not obliged to prompt and stimulate an elaboration on which the applicant chose not to embark. In any event, the Tribunal did not accept that the applicant was banned from working in Bangladesh (if not in Dhaka) as a journalist.