SZIIG v Minister for Immigration & Citizenship

REASONS FOR JUDGMENT 1 The appellant appeals from a judgment of the Federal Magistrates Court. The Court below dismissed an application by the appellant for judicial review of a decision of the Refugee Review Tribunal. The Tribunal had affirmed a decision of a delegate of the respondent Minister not to grant the appellant a protection visa. 2 The appellant, who is a citizen of Bangladesh, claimed to have a genuine fear of persecution if returned to Bangladesh in the reasonably foreseeable future on account of his political opinion and his relationship, as a Muslim, with a Hindu woman. It is only his fear of persecution on account of his political opinion that is an issue of current relevance on appeal. 3 The appellant claimed to have been active in the Bangladeshi National Party ('BNP') and that he had been targeted by members of the Awami League. The Tribunal observed that the situation in Bangladesh had changed significantly since the appellant left there in 1997. It noted that the BNP had been the majority party in the governing coalition since October 2001. It did not accept that there is any current threat of harm from persons who opposed the appellant before his departure from Bangladesh. It said that as the Awami League is not in government, it was unable to influence authorities to not protect the appellant. It found that the appellant is not at risk of harm on account of his political activities prior to 1997. 4 The appellant lodged his application for review of the decision of the delegate on 28 June 2001. On 21 January 2003, the appellant submitted a letter from his lawyer in Bangladesh to a hearing before a Tribunal ('original Tribunal'), differently constituted than the Tribunal the subject of these reasons ('current Tribunal'). The file before the original Tribunal was before the current Tribunal. In its reasons for decision, the current Tribunal said the following about the letter: 'On 21 January 2003, the appellant submitted a letter from a Member of Parliament, the applicant's Bangladeshi lawyer and further press reports on deployment of armed forces in Bangladesh' (emphasis added). 5 Counsel for the appellant acknowledged that the date of the letter was difficult to read but contended that it bore an October 2002 date. The letter advises the appellant not to return to Bangladesh as 'local police and military forces' were searching for him in order to arrest him. 6 The current Tribunal made no further reference to the letter in its decision. It observed that the appellant had been absent from Bangladesh for over eight years. It considered his claim that political opponents would harm him to be 'based on speculation' and it did not accept 'that there is any current threat of harm from persons who had opposed [the appellant] before his departure'. 7 Counsel for the appellant contends that the lawyer's letter was evidence that the current Tribunal was bound to take into consideration in coming to its decision. He conceded that the current Tribunal was not obliged to refer to every item of evidence before it (see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 and Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184 at [46] ('Applicant WAEE')). He nevertheless contended it was obliged to do so in the circumstances of this case. That was because, so the argument ran, the letter showed a risk to the appellant's well-being even after the change of government. 8 I agree with counsel for the Minister that it is not clear that that letter was not taken into account. Considering the reasons for decision of the current Tribunal beneficially, it appears that the letter was not specifically adverted to by the current Tribunal, having regard to its strong finding about a lack of danger to the appellant given his long absence from Bangladesh. As the Full Court said in Applicant WAEE [2003] FCAFC 184 at [47]: 'The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected.'