• Lawyers in Sydney
• Lawyers in Melbourne
• Lawyers in Brisbane
• Lawyers in Perth
• Family lawyers
• Employment lawyers
• Criminal lawyers
• Wills and estates lawyers
• Find a lawyer

REASONS FOR JUDGMENT 1 The Appellant is a citizen of the Peoples' Republic of Bangladesh. He came to Australia on 11 July 2008. A fortnight later, on 25 July 2008 he lodged an application with the Department of Immigration and Citizenship for that class of visa under the Migration Act 1958 (Cth) (the Migration Act), known as a protection visa. That application was considered by a delegate of the Minister for Immigration and Citizenship (the Minister). The Minister is the only active party respondent to this appeal. On 16 October 2008, the Minister's delegate to refused the protection visa application. The following month on 12 November 2008, the Appellant sought the review of that refusal decision by the Refugee Review Tribunal (the Tribunal). 2 On 4 February 2009, the Tribunal decided to affirm the refusal decision made by the Minister's delegate. The decision and the Tribunal's reasons for that decision were communicated to the Appellant under cover of a letter from the tribunal to him also dated 4 February 2009. It will be necessary later in these reasons to set out in some detail the reasons given by the Tribunal. 3 The Appellant then sought the judicial review of the Tribunal's decision in the Federal Magistrates Court. That court heard his application on 13 August 2009. The grounds of review put forward by the Appellant before the Federal Magistrates Court were these: 1. That the RRT failed to take into account relevant considerations The Tribunal based its decision and adverse credibility findings on the Applicant's responses to questions about why the RAB visited his house on 3 occasions in 2008. The Tribunal failed to take into account the applicant's claim that a reason why the RAB visited his house in 21008 was that he had been involved in demonstrations against the caretaker government. 2. That the RRT did not give proper, genuine and realistic consideration to the applicant's case Particulars The applicant repeats the particulars to ground 1. 3. The Tribunal committed jurisdictional error by not given the first applicant notice of its intention not to give any weight to the document submitted by the Applicant, the Tribunal failed to provide a letter in accordance with the requirements of section 425 of the Migration Act. 4. The Tribunal committed jurisdictional error in finding no Convention nexus to the applicants' claims collectively in circumstances where the Tribunal did not act judicially in reviewing the claims of the applicant. (a) The applicants rely on and repeat the grounds to particular 1. (b) The applicant was a district leader not a leader for a few villages. (c) The Tribunal failed to take prevailing situation into which was against the Applicant. (d) The Tribunal failed to determine the applicant's accordance with the provisions of the Convention. 4 On 18 December 2009, for reasons given that day, the Federal Magistrates Court decided to dismiss, with costs, the application made by the appellant. It is from that decision that the appellant now appeals to this court. 5 The grounds of appeal are these: 1. The Refugee Review Tribunal put a little weight to the documents that proves in the following comment that: (i) The Tribunal's had been informed that such letters were easy for supporters to obtain form either main party and that, accordingly little weight could be placed on them. 2. The Refugee Review Tribunal acted in excess of its jurisdiction: Particulars: A. The Tribunal acted in excess of its jurisdiction by the following comment. The Tribunal made the comment without any authentication that: (i) I don not accept that his level of or commitment to political activity, where he to return, would be such as to cause him to be targeted by political thugs of any party opposed to his or by the security authorities of the state. 3. The Refugee Review Tribunal made a wrong assumption about the Bangladesh judicial system: Particulars: A. The Tribunal made a wrong assumption about the Bangladesh judicial system that: (i) If it is true that false cases have been lodged against him - an old Bangladeshi tradition - I believe, as I told the applicant at hearing usually happens in such matters, that he would be able successfully to have them dismissed, if they are ever brought to a court hearing. [sic] 6 It can be seen at once that there is variance between the grounds of review agitated before the Federal Magistrates Court and the grounds of appeal which are sought to be pressed before this Court. 7 It is trite but necessary to observe that the jurisdiction engaged at present is appellate, not original in character. The task of judicially reviewing, on application, a decision of the Tribunal is consigned to the Federal Magistrates Court, not to this Court. There is authority that a grant of leave is necessary to agitate on appeal grounds which were not raised below. That leave is to be granted only where it is expedient in the interests of justice so to do. I canvassed authorities in respect of that proposition in my judgment in SZLGP v Minister for Immigration and Citizenship [2009] FCA 1470 at [25] and [26]. I shall not repeat what is there stated. 8 Pertinent to whether or not it is expedient in the interests of justice to grant leave is a consideration of the merits of the grounds of appeal promoted. That is best done, in my opinion, against the background of setting out a particular passage, albeit lengthy, from the Tribunal's reasons for decision. I therefore set out that part of the tribunal's reasons under the headings Claims and Evidence and Findings and Reasons paras 19 through to and including 42: 19. The Tribunal has before it the Department's file relating to the applicant. The Tribunal also has had regard to the material referred to in the delegate's decision, and other material available to it from a range of sources. 20. The applicant appeared before the Tribunal on 14 January 2009 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages. 21. The applicant was represented in relation to the review by his registered migration agent. The representative attending the Tribunal hearing. Primary claims 22. The applicant included with his primary application an 8-page statement setting out his personal and political history. He stated that his father was a school teacher and involved with the National Awami Party. The applicant, when a college student, joined the student wing of the Bangladesh Nationalist Party (BNP), of which he became a student leader. He completed his education in 1985 by graduating from university with a degree in science. In 1986, he started a poultry business in his home town, Mirjapur. The business was successful. 23. In 1992, he joined the BNP. He was active in the election campaign of his party's candidate for his electorate in the national elections of 1996, which the candidate he supported won. However, the Awami League won the national elections. The applicant was targeted by Awami League supporters. He led protests against corruption and nepotism within the Awami League Government. In 1998, more businessmen joined his branch of the party due to his influence and the Awami League supporters became even more hostile towards him. 24. His political activities continued. In April 2000, after he had addressed a meeting of workers, Awami League activists attached his business. He was unable to register a report to the police. The following month, his poultry farm was attacked and one hatchery set on fire. He was again unable to have a report formally accepted by the police and his night guard - his only witness - was arrested. He was threatened with a similar fate to that of his chickens. 25. His home was raided by police as well as that of the party's organising secretary. Later, he was told that the police were trying to arrest him. They kept looking for him. 26. In October 2001, the BNP won Bangladesh's parliamentary elections and formed Government. 5 years later, power was handed over to a caretaker Government for the purpose of holding elections. Subsequently, a state of emergency was declared and elections were postponed. Plain clothed police came to his house and advised him "not to proceed further". Subsequently, a group of RAB (Rapid Action Battalion) visited his house and told his wife that there were two cases against him. Oral evidence 27. The applicant did not bring his passport to the hearing, but submitted a copy of some pages. He stated that he had had his passport stolen and presented evidence of a police report. 28. I noted that the applicant had spent 3 days in India and 5 days in Thailand during 2008 and asked why he had not sought protection in one or other of those countries. The applicant said that he had travelled with another man who had not given time to do so. He had also spent nine months in the United States in 2002-3, without lodging an application for protection. The applicant told me that he stayed with friends there and had not worked. 29. Asked why he did not want to return to Bangladesh, the applicant said that he had always been afraid of the Awami League. In 1998, he had been kidnapped and his thumb chopped off at the tip. He had been told he would be burned to death if returned to his area. 30. After a discussion of political history, I asked why the RAB had shown an interest in him in March 2008. He said that there was a fight with the Awami League in his area, which was 90% pro-BNP and where he had influence in 2 or 3 villages. He said that the police had visited his home 3 times in 2008 - in March, April and May. The Awami League had attacked his farm in Gajipur several times. I asked why anyone would bother him any more. He said that once a person was an enemy, he was always an enemy. 31. We discussed the political situation in Bangladesh in 2008, including information on the great reduction in political violence. The applicant's adviser commented that there was no political activity. I said that there was political activity, what was not possible were political rallies. 32. The applicant submitted a letter from the BNP attesting to his involvement and stating that he was target by "the current fanatic regime" and that a number of false cases had been lodged against him. I informed the applicant that, while I would not question the authenticity of the letter, the Tribunal had been informed that such letters were easy for supporters to obtain from either main party and that, accordingly little weight could be placed on them. Findings and Reasons 33. I accepted that the applicant is a citizen of Bangladesh. 34. The applicant demonstrated sufficient knowledge of politics in his area to satisfy me that had had some involvement in it, which may have included membership of party committees and active participation in election campaigns. To the extent that his claims include these matters, I accept them. 35. However, there are other aspects of his claims which are not credible. I do not accept that police would spend 18 months or more looking for him in the 2000-2001 period without finding him, given his business interests and local prominence. Moreover, the sudden interest in him in 2008, under the caretaker government, was also not satisfactorily explained. The applicant stated that it arose from his political influence in 2 or 3 villages in his area. However, there was very limited political activity in Bangladesh after the declaration of a state of emergency (12 January 2007) and the postponement of the elections (eventually held in December 2008). That the RAB would go to his house 3 times in early 2008 merely to ask why he had made short visits to two other countries is not credible. Such questions would also have nothing to do with his claimed influence in 2 or 3 villages. 36. Since the applicant has been in Australia, elections have been successfully held and the Awami League is again in power, following the Bangladeshi tradition of expelling the incumbent party and installing the opposition. It will be a number of years before there is another election. 37. Given my findings above and the applicant's prolonged absence from Bangladesh in 2002-3 and again in a politically critical period of 2008, prior to the December elections, and since, when he has been in Australia, I do not accept that his level of or commitment to political activity, were he to return, would be such as to cause him to be targeted by political thugs of any party opposed to his or by the security authorities of the state. 38. If it is true that false cases have been lodged against him - an old Bangladeshi tradition - I believe, as I told the applicant at hearing usually happens in such matters, that he would be able successfully to have them dismissed, if they are ever brought to a court hearing. 39. I am prepared to accept that the applicant's chicken farm was attacked once in the past. But I note that he was able to re-establish it in 2003, after returning from the United States, and that it is still functioning. Nothing like the claimed abduction and partial loss of a thumb in 1998 has occurred since and I do not accept that there is now a real chance that it will. 40. Given that the applicant did not seek protection in the United States, India or Thailand, I do not accept that, prior to or at the times of those visits, he had a genuine fear of persecution. A person in fear for his life would not be put off by the busy schedule organised by a travelling companion and he spent 9 months in the United States. Given that I do not believe the claims about visits in 2008 to his house by the RAB, I see no reason why the applicant should have acquired a genuine fear of persecution subsequent to his visit to India in April 2008. 41. In short, I do not accept that there is a real chance of the applicant suffering harm amounting to persecution in Bangladesh for reason of his political opinion should he return there in the foreseeable future. 42. I find that the applicant does not have a well founded fear of persecution in Bangladesh for a Convention reason. 9 It was on the basis of these reasons in respect of the claim as set out that the Tribunal expressed the view that it was not satisfied that the appellant was a person to whom Australia has protection obligations under the Refugees Convention. It necessarily followed from that absence of satisfaction that the Appellant did not meet the criterion in s 36(2)(a) of the Migration Act, which was one of the preconditions for the exercise of power to grant a protection visa to him. 10 The decision of the Federal Magistrates Court understandably engaged with the grounds of review that were pressed before that court. In the course of the learned federal magistrate's consideration of ground 3, his Honour had occasion to refer to s 424A of the Migration Act. His Honour observed of the case presented on behalf of the Appellant in respect of ground 3 (at para 16 of his reasons) that it: Raises a further misunderstanding as the tribunal's reasons disclose that it relied solely on information the applicant provided in support of his application in affirming the decision under review. His Honour further observed (at para 16): Pursuant to section 424A, subsection (3), paragraph (b) the tribunal is not required to put that information to the applicant under section 424A subsection (1). A little later in respect of ground 3 (at para 17), his Honour further observed: In respect of the documents that the applicant provided, the tribunal is entitled to give whatever weight to what evidentiary material it decides. His Honour cited in that regard Minister for Immigration and Ethnic Affairs and Wu Shan Liang (1996) 185 CLR 259. 11 Of the four grounds of review before the Federal Magistrates Court, the learned federal magistrate observed in conclusion at para 21: Although four grounds of review with particulars have been filed, they all focus on his claim that the RAB visited his premises on three separate occasions in 2008. I'm satisfied that the issues identified in the application have been satisfactorily addressed by Ms Antewell (the legal representative of the Minister) in her written and oral submissions. On a fair reading of the decision, it's not apparent that any other ground of review exists which would suggest that the tribunal made a jurisdictional error in its decision making process. Consequently, the application should be dismissed. 12 In essence, the learned federal magistrate was of the opinion that the Tribunal's decision turned on matters of credit which were singularly for the Tribunal and otherwise involved conclusions reasonably open to the Tribunal. 13 Of the material provided to the Tribunal by the appellant, that of present interest, having regard to the grounds of appeal, sought to be agitated is a letter from the Bangladesh National Party addressed to "To Whom It May Concern" dated 22 November 2008, (reproduced at page 89 of the appeal book). It is necessary to set out the terms of that letter having regard to the nature of the case advanced by the Appellant before me. 14 Omitting identifying particulars, the BNP letter, provided as follows: To Whom it May Concern This is to certify that SZNHJ of [address], Bangladesh. SZNHJ is known to me politically. His affiliation with the Bangladesh J.J.D and the Bangladesh B.N.P. He was one of the leading activists of our organisation and he was elected as the executive member of the … district committee of B.N.P (2002-2004). He was also the president of the … committee of J.J.D 1989-1992. While he was in Bangladesh he attended numerous party meetings and processions and became targeted by the current fanatic regime. He was implicated a number of false cases. As a result he left the country to secure his life. I believe the authority in Australia will consider his situation. If you render any assistance in respect to SZNHJ. Please do not hesitate to contact the under signed. Yours faithfully, [author's name] 15 It is convenient, first, to deal with the third of the propounded grounds of appeal. The reference in that ground to "an old Bangladeshi tradition" is a reference to a passage in para 38 of the Tribunal's reasons which I have already reproduced. The ground makes a reference to a wrong assumption on the part of the Tribunal in respect of the Bangladesh judicial system. As expressed, it is a solicitation to review on the merits a conclusion reached by the Tribunal. Not only is that an impermissible solicitation to conduct merits review but it also does not engage in any way with an issue agitated in the Federal Magistrates Court. 16 It is certainly true that there is nothing in the record which would support the Tribunal's observation as to what was or was not "an old Bangladeshi tradition" in respect of its judicial system. However, the Tribunal is expected by the Parliament to be a body which, over time, accumulates by virtue of the cases which come before it a body of specialist knowledge in respect of particular countries: see Muin v Refugee Review Tribunal (2002) 190 ALR 601 at [7], [116], [263] and [291]. Moreover, as para 19 of the Tribunal's reasons discloses, the Tribunal did have before it "other material available to it from a range of sources". 17 There was some debate before me as to whether assuming, as was contended on behalf of the Minister, that the Tribunal was exposing and acting upon specialist knowledge, that knowledge constituted "information" for the purposes of s 424AA and s 424A of the Migration Act. 18 It is clear enough that the Tribunal's reasoning process does not constitute "information" for the purposes of those sections, see SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190. This though is a different type of matter from reasoning. Rather, it is specialist knowledge. I am inclined to think that such specialist knowledge does constitute "information" for the purposes of those sections. 19 There would then be a question, perhaps lurking in ground 3, as to whether that information was nonetheless the subject of the exclusion found in s 424A(3)(a) because of its generic quality. In turn, a question would arise perhaps as to whether the Tribunal had an obligation to expose that knowledge in the course of a hearing or by notice thereafter so as to permit an applicant before it an opportunity to respond. Such matters were not expressly agitated on behalf of the Appellant, but even insofar as they might be said, perhaps charitably, to fall under ground 3, the difficulty is that the only evidence of the course of proceedings before the Tribunal is that set out in a summary way in the Tribunal's reasons and in inferences which necessarily flow from that summary. 20 There is nothing on the face of the reasons or in my opinion any necessary inference there from which would suggest that in the course of the discussion to which the Tribunal refers in its reasons and in the course of the reference to the Tribunal having raised the "old Bangladeshi tradition" which would suggest that an opportunity to be heard about that then and there at the hearing was not extended. I note that the Appellant was represented by a migration agent at the hearing. The transcript of the proceedings before the Tribunal is not in evidence. It was not part of the record before the Federal Magistrates Court. In these circumstances, I do not consider that it is expedient in the interests of justice to permit any agitation of any question as to whether ground 3 ought to be regarded as raising an issue concerning a want of procedural fairness, either in terms of compliance with s 424AA and s 424A or otherwise. 21 Grounds 1 and 2 are, in my opinion, conveniently considered together. In essence, they appear to me to seek to promote a challenge on the basis of unreasonableness in respect of the reasons which led the Tribunal to its expressed lack of satisfaction. Particularly, the grounds focus upon the letter which I have reproduced above. The Tribunal accepted that letter as authentic. This is, therefore, unlike other cases which I have encountered, where having regard to inconsistencies apparent in an applicant's evidence and general information about the prevalence of forged documents emanating from a particular country, the Tribunal reaches a conclusion that a document tendered to it is not authentic. 22 The Tribunal's observation about the document is that such documents are "easily obtained." Again, that sentiment seems to have been fully expressed in the course of the hearing. There is nothing to suggest that an opportunity to be heard in respect of that sentiment was not afforded to the appellant. 23 On the strength of the view that the document was of a class easily obtained, the Tribunal gave it little weight. 24 It was submitted on behalf of the Minister that, read in context having regard to the reasons as a whole, I should regard the letter as one the contents of which were regarded by the Tribunal as not to be believed at all. In other words, that the letter, whilst authentic, contained at least exaggerations, if not falsities. 25 I was particularly reminded of the sentiments expressed by the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 cautioning against reading the reasons of an administrator narrowly and with an eye for error. These are salutary remarks, indeed. So too is the proposition, for which that case is an exemplar, that questions of weight are for the administrative decision making body, in this case, the Tribunal. It is very important that courts exercising original judicial review jurisdiction and, a fortiori, courts hearing appeals from such forums, exercise appropriate restraint, lest the very purpose of judicial review be subverted. 26 Also in my decision in SZLGP I had occasion (at paras 35 through to and including 37), and particularly by reference to a passage in the current, fourth edition of Aronson M, Dyer B & Groves M, Judicial Review of Administrative Action (4th ed, Law Book Co, 2009) at p 265, to consider the question of review on the basis of illogicality or irrationality in administrative decision making. 27 In this case, the Tribunal was confronted with a difficult question. The Appellant had made particular claims for a protection visa himself, in writing, and in his oral evidence. He had supported those claims by a letter which on its face was from the very party of which he claimed to be a member. The Tribunal accepted that the letter was authentic. It is one thing to say that a letter may be easily obtained, it is quite another to say that its contents are false or exaggerated. This the Tribunal never did. It was never put to the Appellant that the letter had those qualities. There is a fundamental tension, in my opinion, between an acceptance of a letter as genuine and, thus, what is set out in that letter as genuine, and the reasoning adopted by this Tribunal. 28 It seems to me that, in a case where a person is claiming our country's protection on the basis of the Refugee Convention, it behoves an administrative decision maker who regards a document of this kind as genuine, to do rather more than just describe it as one carrying "little weight" without exposing in reasons, and also exposing to the visa applicant, either in the course of the hearing or thereafter, why it should have that status such that statements in that letter which are capable of corroborating, and, on one view, do corroborate his claim, should be discounted. Of course, there are references in the Tribunal's reasons to his travel patterns and to inferences which one might draw, and which the Tribunal did draw in respect of those travel patterns and the claim made for a protection visa. Nonetheless, what remains is a fundamental tension between the contents of an authentic document and a reasoning process. 29 It seems to me, therefore, that it is indeed expedient in this case, in the interests of justice, to permit the agitation of grounds 1 and 2, but especially ground 1, and to read those as grounds which seeks to agitate the question of unreasonableness and illogicality. I regard such a case of jurisdictional error as made out. 30 Moreover, those grounds do engage with a particular passage which I have quoted from the reasons of the learned federal magistrate, at least in the sense that whilst his Honour has, with respect, rightly drawn attention to Wu Shang Liang (1996) 185 CLR 259, that case does not admit of ignoring a reasoning process which is unreasonable and illogical. 31 For completeness, I should add that there is another way of approaching what I apprehend to be a fundamental flaw in the decision of the Tribunal. That other way is also set out in my reasons in SZLGP (at paras 38 through to 40), again by reference to reasoning in Aronson at page 273 and following. That is that the Appellant was not given a fair hearing. Not given a fair hearing because a letter regarded as authentic was then not the subject of being put to him as containing statements which were false or exaggerated. I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.