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[2010] FCA 56
Federal Court of Australia
2010-10-12
Kenny J
Original judgment source is linked above.
REASONS FOR JUDGMENT 1 This is an appeal from a judgment of the Federal Magistrates Court delivered on 29 October 2009, dismissing an application for judicial review of a decision of the Refugee Review Tribunal ('the Tribunal'). The second respondent has entered a submitting appearance. 2 At the hearing of the appeal, the appellant was self-represented and assisted by an interpreter. Before the hearing, the appellant had filed no written submissions and, at the hearing, he stated that he did not wish to make any oral submissions in support of his original grounds. Instead, the appellant applied to amend his notice of appeal, as discussed below. The first respondent did not oppose the grant of leave, and leave to amend was granted. The appellant then made brief oral submissions on the new ground, but indicated that he would have pro bono counsel draft further written submissions in support and, for this, he required additional time. Directions were given allowing for written submissions to be filed at a later date addressing the new ground. These written submissions were later filed. 3 At the hearing of the appeal, the first respondent appeared by counsel, who relied on her written submissions as to the appellant's original grounds. The respondent subsequently filed supplementary submissions dealing with the appellant's the new ground. Having considered all the grounds in the appellant's notice of appeal and the submissions made by the parties concerning them, I would dismiss the appeal.
BACKGROUND 4 The Tribunal found that the appellant was a citizen of Bangladesh, who arrived in Australia on 17 July 2008 and lodged an application with the first respondent's Department for a protection visa on 29 August 2008. Essentially, the appellant claimed refugee status on the basis that he would be persecuted on account of his adherence to Christianity and also because of his involvement with the Bangladesh National Party ("BNP"). His claims were outlined in a statement that accompanied his application on 29 August 2008, which is summarised below. As the respondent said in written submissions: Specifically, the appellant claims he is a practising Catholic who has regularly attended Church since childhood (and continued to do so as an adult) and has been heavily involved in spiritual teaching. He claims to have had a long and continuing association with the various Catholic Churches in Bangladesh. The appellant claims that in 2004 he joined the Bangladesh Catholic Party (BCA). He claims to be an active member of the BCA. The appellant also claims he has been a member of the BNP since 1986, and to have been elected to various official positions in the BNP including Secretary. He claims to have organised various political activities, protests and rallies. The appellant claims he was involved in 1986 in student elections which were sabotaged, and that he was attacked and injured. He claims to have been hospitalized for one day and also to have received treatment at home. He also claims that on 19 April 2008 he was going to school and was attacked and spent two days in hospital. The appellant claims that Catholics in Bangladesh are systematically targeted by Muslim members of the community, and if he returned, he would be persecuted for his religious beliefs, as he has been in the past. 5 On 6 November 2008, a delegate of the first respondent refused the appellant's application. On 2 December 2008, the appellant applied to the Tribunal for a review of the delegate's decision. The Tribunal affirmed the delegate's decision on 11 March 2009. The appellant filed an application for judicial review in the Federal Magistrates Court. This application was heard on 10 August 2009 and 19 October 2009. It was dismissed on 29 October 2009.
APPELLANT'S CLAIMS AND EVIDENCE 6 In its reasons, the Tribunal reproduced the appellant's fifteen-page statement in support of his visa application. The statement is not especially easy to follow, but the basic facts of the appellant's claims can be discerned. In summary, the appellant apparently claimed that:
tribunal decision 11 Overall, the Tribunal concluded that "the available evidence supports a conclusion" that the appellant had fabricated his claim for refugee status "from the outset" and that "none of his evidence can be relied upon". In reaching this conclusion, the Tribunal relied on the matters raised with the appellant at the hearing: see para [9] above. 12 First, the Tribunal reasoned that "the applicant's inability to recall the names of Priests associated with the Churches with which he has claimed a long and continuing association indicates both that the documentation which he has provided cannot be relied upon, and furthermore that he is not being truthful in his claims". 13 The Tribunal concluded that the Pubail Union Council letter was fabricated, as it was identical to a letter submitted in support of a different application. In particular, the Tribunal considered it unlikely that phrases such as "he falls into the livid eye of forbidden religious organisation . . ." would be duplicated by chance. Based on the appellant's presentation of a letter it considered fabricated, the Tribunal concluded that the appellant was "prepared to organise and present obviously manufactured and false material to support his claim". 14 The Tribunal also found that the letter regarding the appellant's association with the Bangladesh Christian Association was "not genuine", noting that the letter contradicted the appellant's oral evidence regarding his role in the organisation. 15 The Tribunal expressed the view that the appellant exhibited a "tendency to introduce new facts to explain difficulties with the evidence". In this regard, the Tribunal cited the appellant's evidence regarding the "false case" against him and his claim that he no longer supported the BNP. 16 The Tribunal did not accept that the appellant had experienced threats and attacks by the JMB as a result of work as a teacher. In the Tribunal's view, the problems it identified with the appellant's evidence were "so serious, and so obviously indicate[d] that the appellant [was] prepared to be to be untruthful in supporting his claim" that the appellant's account of these attacks had to be regarded as "just another example of fabricating a claim". For the same reason, the Tribunal concluded that even letters provided by the appellant which were not obviously fabrications could not be relied on. The Tribunal therefore rejected the appellant's request that it attempt to verify the documents. 17 Regarding the status of Catholics in Bangladesh, the Tribunal noted that, according to country information, extremist groups such as the JMB operated in the country, but that "Catholics are able to practise their faith through established churches in Bangladesh". The Tribunal concluded that converts to Catholicism and Catholics who were perceived as attempting to convert others might be at risk, but found that the appellant was not among either group. Further, although the Tribunal found the appellant to be a practising Catholic, it suggested that he might have exaggerated the extent of his religious activity. The import of these findings is central to the resolution of the appellant's new appeal ground, and they are discussed in detail below. 18 In sum, the Tribunal found that no person or group had any interest in harming the appellant if he returned to Bangladesh, and it considered the appellant's evidence to the contrary "entirely fabricated". The Tribunal therefore affirmed the decision to deny the appellant's protection visa application.
Federal Magistrates Court 19 In his application in the Federal Magistrates Court, the appellant asserted three grounds of error by the Tribunal: 1) that the Tribunal failed to accord him procedural fairness; 2) that the Tribunal failed to exercise the power conferred by s 427(1)(d) of the Migration Act 1958 (Cth); and 3) that the Tribunal failed to consider certain comments made by Lee J in WAHP v Minster for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 87, citing Karanakaran v Secretary of State for the Home Department [2000] 3 All ER 449, 469-470. The first and second grounds were supported by various particulars. 20 The Federal Magistrate concluded that the appellant's submissions did not disclose any jurisdictional error on the part of the Tribunal: see SZNKV v Minister for Immigration (No 2) [2009] FMCA 1053.
Appeal to this court 21 The appellant's unamended notice of appeal from the judgment of the Federal Magistrate Court set out three grounds of appeal. Essentially, these grounds reiterated the grounds relied on before the Federal Magistrate. The appellant's original grounds of appeal were as follows: 1. That [t]he Federal Magistrate erred in not considering that [t]he Refugee Review Tribunal failed to accord procedural fairness Particulars (a) The Tribunal erred in law amounting to jurisdictional error in finding "that the applicant has created a fabricated basis of his claim to refugee status, and that none of his evidence can be relied upon". (b) The Tribunal has failed to consider the evidences I have provided to substantiate my claims of persecution [page references to court book provided] for my religious and political belief. (c) The Tribunal has ignored the evidence given by Dr Ronald Williams Patra regarding the persecutions a person from my religious and political backgrounds suffers in Bangladesh. (d) The Tribunal also failed to take into consideration the evidences from the country information regarding persecution suffered by minorities in Bangladesh. (e) The Tribunal failed to inform me about the country information upon which [t]he Tribunal relied at the time of the decision that I was not persecuted prior to my departure from Bangladesh and also I shall not be persecuted on my return. (f) The Tribunal has failed to consider me as a credible witness for my claims of persecution I suffered in Bangladesh and refused my application. (g) The Tribunal has failed to take into consideration of my persecution I suffered in Bangladesh for my religious and political background and my [m]igration agent brought to the attention of the delegate of [t]he Minister [reference to court book] at the time of the decision. The Tribunal has failed to find that I faced and will continue to face "significant discrimination as a Catholic faith in Bangladesh" is an error in law amounting to jurisdictional error. (h) The Tribunal has failed to perform the duty imposed on it by the Migration Act (section 424(1)[)]. 2. That [t]he Federal Magistrate erred in not considering that the Refugee [R]eview Tribunal failed to exercise the power conferred on the Tribunal under s. 427(1)(d) of the Migration Act. Particulars The Tribunal was informed in letters . . . in relation to my persecution and assaults I suffered in Bangladesh and also the situation of the member of Christian religious beliefs and their sufferings in my area. It was unfair for the Tribunal to put the obligation on the applicant at the hearing to identify all of his claims, without exercising the power conferred on the Tribunal under s. 427(1)(d[)] of the Migration Act. 3. That [t]he Federal Magistrate erred in not considering that the Refugee Review Tribunal failed to consider the comments by Lee J, in WAHP v [Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 87, citing] Karanakaran v Secretary for the Home Department [2000] 3 All ER 449 at 469-470 . . . : For the reasons much more fully explained in the Australian cases, when considering whether there is a [real risk] of persecution for a convention reason if any asylum is returned, it would be quite wrong to exclude matters totally from consideration in the balancing process simply because the decision maker believes, on what may be somewhat fragile evidence, that they probably did not occur. 22 Pursuant to amendment, the appellant relied on the following additional ground: That the conclusion reached by the Refugee Review Tribunal in paragraphs 126 and 125 of the decision (In particular "Nor does the Tribunal believe that as a practising Catholic, there is a real chance of the Applicant experiencing harm. In the Tribunal's view, he has probably to some extent practised his Catholic Faith in Bangladesh, although elements of his claim suggest he has exaggerated this") was not open on the evidence before [t]he Tribunal ([i]n particular the [c]ountry information cited by the Tribunal). 23 For the reasons stated below, I agree with the Federal Magistrate that none of the appellant's original arguments can support a finding of jurisdictional error. As to the new ground, I conclude that this ground too cannot sustain a finding of jurisdictional error, and the appeal must therefore be dismissed.
Ground One: Procedural Fairness 24 Particulars (a) and (f) of ground 1 both essentially asserted that the Tribunal failed to accord the appellant procedural fairness in making an adverse credibility determination against him. The Tribunal disbelieved the appellant's case in its entirety because it considered that the number of fabrications and untruths it found in his evidence undermined his credibility as a whole. These matters were all put to the appellant, and he was given an opportunity to respond to them. There was no procedural unfairness to the appellant in the Tribunal's reaching an adverse credibility determination after considering his evidence. The appellant's credibility was a matter for the Tribunal (see, e.g., Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at 423 [67]) and its conclusion that his case was by and large a fabrication was open to it on the evidence. 25 Particulars (b), (c), (d) and (g) are all variations of the submission that the Tribunal erred in failing to consider evidence or arguments put forward by the appellant. Particular (b) refers to the numerous letters from various individuals and media articles submitted by or on behalf of the appellant. Particular (c) refers to a specific letter, dated 20 November 2008, from Dr Patra of the Bangladesh Christian Fellowship of Australia. Dr Patra's letter, like many of those submitted by the appellant, repeated certain of the appellant's claims, asserting them to be true, and described certain reported incidents of violence against Christians in Bangladesh. Particular (d) is vague, but appears to refer to the media articles submitted by the appellant, as well as perhaps the letters of Dr Brown, Dr Patra and others touching on the situation of Christians in Bangladesh (which tended to rely on the same incidents described in the media reports). Particular (g) refers to a letter written by the appellant's former migration agent to the delegate. The letter refers to incidents of violence against Christians in Bangladesh and points to a decision of the Tribunal granting refugee status to a Christian applicant from Bangladesh. 26 The failures alleged in particulars (b), (c), (d) and (g), to take account of certain evidence and arguments, are not shown. The Tribunal considered each of these matters and, for the reasons given by the Tribunal, rejected them. It was, plainly enough, open to the Tribunal to do so. 27 The Tribunal specifically mentioned or considered the letters the subject of (b) and (c). Further, it plainly considered the matters with which (d) is concerned and the arguments referred to in (g). 28 In any event, The Tribunal was not bound to accept the contents of letters submitted by the appellant. The Tribunal provided reasons for concluding that certain of the letters were fabrications. Thus, the Tribunal held that the information in the letter from Dr Patra was inconsistent with the appellant's evidence, and that the appellant was unable to explain the inconsistency. Based on the conclusion that certain letters were fabrications and its overall conclusion that the appellant was not truthful, the Tribunal concluded that none of the letters could be relied on. To the extent that certain letters repeated and offered support for the appellant's claims, the Tribunal accepted that the appellant had repeated his claims to others, but found those claims to be untruthful. As discussed in relation to ground (a), these conclusions were open to the Tribunal and do not reveal any jurisdictional error. 29 To the extent that the appellant's argument, through these particulars, was that the Tribunal erred in not considering information about the situation of Christians in Bangladesh, it must fail. After concluding that the appellant was a Catholic but not as active in religious activities as he claimed, the Tribunal considered the appellant's situation if he returned to Bangladesh. The Tribunal clearly considered country information and concluded that "Catholics are able to practise their faith through established churches in Bangladesh", noting that extremist groups tended to direct violence at converts or those seen as attempting to convert others. While the precise interpretation of the Tribunal's findings regarding the situation of Catholics in Bangladesh is a matter of some importance to resolution of the appellant's new appeal ground, the submission that the Tribunal failed to consider country information is not made out. It is true that certain of the articles and letters submitted by the appellant painted a bleaker picture than that ultimately accepted by the Tribunal. Dr Brown, in particular, apparently considered that all Christians lived under a constant threat of violence. It was, however, for the Tribunal to determine the evidence and information to be accepted and rejected, which it did, upon bases that were open to it. The appellant's arguments in this regard disclose no jurisdictional error. 30 By particular (e), the appellant argued that the Tribunal did not disclose country information on which it relied in reaching a decision adverse to him. As already noted, the Tribunal's decision was largely based on its conclusion that the appellant was untruthful, rather than any particular country information, although the Tribunal did rely on country information in reaching certain conclusions regarding the situation of Catholics in Bangladesh. The effect of s 424A(3)(a) of the Migration Act is, however, to exclude country information of this kind from the scope of the s 424A obligation: see, e.g., VHAJ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 80 at 95 [50]. Further, as noted, it was for the Tribunal to determine the weight it gave such information. Accordingly, particular (e) discloses no jurisdictional error. 31 Finally, by particular (h), the appellant argued that the Tribunal failed to perform an obligation said to be imposed on it by s 424(1) of the Migration Act. That section provides that "the Tribunal may get any information that it considers relevant". It does not impose an obligation on the Tribunal to seek out additional information. Particular (h) discloses no jurisdictional error. 32 For these reasons, Ground 1 discloses no procedural unfairness to the appellant and cannot support a finding of jurisdictional error.
Ground 2: Section 427(1)(d) 33 Ground 2 effectively asserted that the Tribunal acted unfairly in failing to exercise its power under s 427(1)(d) of the Migration Act before reaching a decision. Section 427(1)(d) empowers the Tribunal to "require the Secretary to arrange for the making of any investigation, or any medical examination, that the Tribunal thinks necessary with respect to the review, and to give to the Tribunal a report of that investigation or examination". Apparently, the appellant's point is that the Tribunal erred in not taking up his request that it inquire of the authors of certain letters he submitted. 34 This ground must be rejected. As the Federal Magistrate correctly noted, s 427(1)(d) empowers the Tribunal to act but does not impose any obligation to act: see Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at 21-22 [43]. This is not one of those rare or exceptional cases in which an obligation to inquire might be said to arise having regard to all the circumstances of the case: compare Minister for Immigration and Ethnic Affairs v Singh (1997) 74 FCR 553 at 561; SZMDB v Minister for Immigration and Citizenship (2008) 105 ALD 499 at [39] and the authorities there cited; and Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 at 436 [25]-[26]. The Tribunal considered that it was not necessary to contact the authors of the letters before concluding that the letters were unreliable. In doing so, the Tribunal did not make a jurisdictional error.
Ground 3: Failure to consider Lee J's comments in WAHP, citing Karanakaran 35 In ground 3, the appellant submitted that the Tribunal erred in failing to have regard to part of the reasons for the dissenting judgment of Lee J in WAHP v Minister for Immigration and Multicultural and Indigenous Affairs[2004] FCAFC 87, quoting a statement in Karanakaran ([2000] 3 All ER 449 at 469-470), an English case referring to Australian authorities. The appellant's appeal notice did not explain what bearing the statement would have on the Tribunal's review. To the extent that the appellant intended to argue that the Tribunal "excluded matters totally from consideration", the appellant failed to identify any relevant evidence as having been left out of consideration by the Tribunal. As the Federal Magistrate said, the appellant's disagreement would appear to be with the Tribunal's findings and conclusions rather than with the processes by which the Tribunal reached them. Ground 3 cannot support a finding of jurisdictional error.
Ground 4: No Evidence 36 The appellant accepted that the ground added by amendment was a "no evidence" ground. The parties made further submissions on this ground based on this assumption. 37 As the appellant acknowledged in his written submissions, a no evidence ground for jurisdictional error cannot succeed unless there is no evidentiary basis at all for the challenged finding. A no evidence challenge will fail where there is even a slight evidentiary basis to support the Tribunal's finding: see VAS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 350 at [18]-[19] and WAJS v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 139 at [11]-[12]. 38 Jurisdictional error may lie where the Tribunal "makes a finding and that finding is a critical step in its ultimate conclusion and there is no evidence to support that finding": see SFGB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALD 402 at 407 [19]; see also SZJRU v Minister for Immigration and Citizenship (2009) 108 ALD 515 at [53]-[54] and cases cited therein;Applicant A227 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 567 at [44]. Another approach to this question is 'jurisdictional fact' analysis: see, e.g., Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at 21 [39]; VWBF v Minister for Immigration and Multicultural and Indigenous Affairs ('VWBF') (2006) 154 FCR 302 at 306 [19], citing Colonial Bank of Australasia v Willan (1874) LR 5 PC 417 at 442-443 and VXDC v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 146 FCR 562 at [13]; SZAPC v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 995 at [47], [57]. For present purposes, it is unnecessary to determine whether these two approaches co-exist and, if a choice is to be made, to identify the preferred approach. Under either approach, it is necessary to identify with precision the factual finding said to be unsupported by the evidence. Once this is done, it is clear enough that the appellant's no evidence ground fails. 39 In Ground 4 of his application as amended, the appellant argued that there was no evidence in the record to support the findings expressed in paragraphs [125] and [126] of the Tribunal's reasons. Those passages, along with paragraphs [123] and [124], which I include for context, are set forth below: [123] The Tribunal does accept, by virtue of his claimed family name, that the applicant was born into a Catholic family in Bangladesh. The Tribunal does not, however, believe that he has ever experienced harm amounting to persecution as a result of this. Were it the case that he had done so, one could have expected that he would present a credible and consistent account of his circumstances over time, and provide reliable material to support his claim. The fact that he has not done so, [sic] indicates to the Tribunal that he has not genuinely experienced harm in the past. [124] Nor does the Tribunal believe that he genuinely holds any fear of [sic] the basis he has claimed should he return to Bangladesh. In the Tribunal's view, he has experienced a stable life in Bangladesh prior to his travel to Australia. Although he may not now wish to return there, the Tribunal does not believe that this arises from any fear of persecution on account of any Convention ground. [125] There is certainly evidence that extremist groups such as the JMB continue to operate in Bangladesh, however [sic], the Tribunal does not believe that the applicant holds any fear of harm from them. In the Tribunal's view, the evidence in this regard is untruthful. Nor does the Tribunal believe that as a practising Catholic, there is a real chance of the applicant experiencing harm. In the Tribunal's view, he has probably to some extent practised his Catholic faith in Bangladesh, although elements of his claim suggest he has exaggerated this. In any case, the Tribunal believes that the available evidence indicates that Catholics are able to practise their faith through established churches in Bangladesh and that the church is an important part of education and health services in the country. [126] In the Tribunal's view, while there is evidence that those who are seen to be attempting to convert others, or are converts themselves have and could still experience harm in Bangladesh, the applicant is not such a person. In the Tribunal's view, the applicant has obtained an education and employment in Bangladesh which allowed him to have a stable life there and this could continue on return. Although there is some evidence of restrictions for religious minorities in some elements of Government service, the Tribunal does not believe that the problems encountered rise to a level to be considered persecutory. It is notable that in the applicant's situation he was able to practise his faith to some degree, marry and obtain an education and employment. 40 Although directed at paragraphs [125] and [126] in their entirety, the appellant's argument as expressed in the amended application singled out two sentences: "Nor does the Tribunal believe that as a practising Catholic, there is a real chance of the applicant experiencing harm. In the Tribunal's view, he has probably to some extent practised his Catholic faith in Bangladesh, although elements of his claim suggest he has exaggerated this". The appellant's written submissions clarified that his argument was focussed on a single finding, namely, a finding, as the appellant characterized it, "that there was no real risk of practising Catholics, such as the [a]ppellant, being persecuted". Thus, I do not take the appellant to challenge the evidentiary support for the suggestion in paragraph [125] (which in any event does not amount to a finding) that the appellant may have exaggerated the extent to which he practised his Catholic faith in Bangladesh. Nor do I take the appellant's no evidence ground to extend to any other particular finding contained in [125] or [126] beyond the finding already identified. Those findings were plainly supported. 41 In essence, the appellant's argument challenged the use made by the Tribunal of a distinction it drew between practising Catholics at large and a smaller group of Catholics, consisting of converts to Catholicism and those seen as attempting to convert others. The appellant accepted that a distinction could be drawn between "proselytising Christians and those who simply wish to practise their religion", and, for purposes of his submissions with regard to ground 4 at least, he accepted the Tribunal's finding that he was not among the second group. The appellant argued, however, that the Tribunal relied on an unsupported finding that individuals not in the second group would not be subject to persecution on account of their religion. 42 The appellant accepted that individuals in the second group (which, for the sake of convenience, I call the 'high-risk group') faced a higher risk of persecutory harm than practising Catholics in general. He submitted, however, that it did not follow that individuals in the high-risk group were the only Catholics at risk of persecution, or that practising Catholics not in that group did not face a real risk of being persecuted. The appellant's case was that, although the Tribunal accepted that he was a practising Catholic, it treated his placement outside the high-risk group as determinative of his refugee status, due to an unsupported finding regarding a lack of persecution outside that group. 43 In evaluating the appellant's position, it is essential to identify precisely what views the Tribunal expressed regarding the status of practising Catholics in general in Bangladesh, and what use it made of those views. Unless the Tribunal's views regarding the risk to practising Catholics in general constituted a finding that played a "critical" role in the Tribunal's ultimate decision as to the appellant's refugee status or had the status of a "jurisdictional fact", they cannot serve as the basis for a no evidence challenge. Owing to the writing style employed by the Tribunal, these questions present some initial difficulty and require a close reading of paragraphs [123] - [126]. 44 In paragraph [123], the Tribunal accepted that the appellant was a practising Catholic but concluded that the past incidents in which he claimed to have experienced threats or violence did not occur. The reasons given for this conclusion, as stated in paragraph [123], were that the appellant's various accounts of his experiences in Bangladesh were not credible or consistent, and that the documentary evidence submitted in support of them was unreliable (based on the Tribunal's view that certain items of evidence were fabricated). Although the Tribunal's statements in paragraphs [125] and [126] regarding Catholics in general could be taken as offering additional support for the conclusion expressed in paragraph [123], there is nothing to suggest that this conclusion was based on anything other than the Tribunal's view of the appellant's credibility and willingness to fabricate evidence. In sum, in paragraph [123] the Tribunal ruled out the possibility that the appellant faced persecution in the past, based solely on problematic aspects of the appellant's own evidence regarding his experiences. 45 However, the nature of the appellant's past experiences, though relevant, was not the ultimate issue before the Tribunal. Thus, the fact that the Tribunal rejected the evidence of prior attacks and threats against the appellant without reference to its views about the situation of practising Catholics in general does not necessarily mean that a finding regarding the status of practising Catholics was not a critical step in the Tribunal's ultimate conclusion. 46 Paragraph [124] moved from the truth of the appellant's claimed past experiences to the actual question to be answered under the Migration Act, namely, whether the applicant had a genuine fear that he will experience persecution in the future as a result of his religion if he returns to Bangladesh: see VWBF at [21], citing Guo v Minister for Immigration and Multicultural and Indigenous Affairs (1997) 191 CLR 559 at 574 and Abebe v Commonwealth (1999) 197 CLR 510 at 578. The paragraph set forth the conclusion that the appellant did not hold any real fear of experiencing harm on account of his religion if he were to return to Bangladesh. The only reason for this conclusion expressed in paragraph [124] was the statement that the appellant has had a "stable life", which I take to be a reference to his steady employment and home address. Paragraphs [125] and [126] expanded on the Tribunal's reasons for the conclusion expressed in [124]. 47 The Tribunal began paragraph [125] by noting that extremist groups, including the JMB, operated in Bangladesh but repeated its conclusion that the appellant did not hold a realistic fear of persecution from such groups. The first reason for this conclusion offered in paragraph [125] was that the Tribunal found the appellant's evidence regarding threats and attacks against him untruthful. This reason essentially referred to the same issues of credibility and fabrication addressed in paragraph [123]. Thereafter, paragraph [125] shifted to considering the relationship between the conclusion that the appellant was a practising Catholic and the conclusion that he did not have a well-founded fear of persecution. This relationship was at the heart of the appellant's no evidence challenge. 48 It is useful to pause here to consider the status of the facts regarding the appellant before the Tribunal, as found, at this point in the Tribunal's decision-making process. Once the Tribunal had concluded that the appellant's claims as a whole were fabricated, the only substantive fact regarding the appellant which the Tribunal accepted was that he had "to some extent" practised his Catholic faith in Bangladesh. Setting aside information about the appellant's employment and address and other basic personal facts contained in his application, there were, essentially, no other facts regarding the appellant that the Tribunal accepted. Under the circumstances, the Tribunal could only grant the appellant's application if the fact that he had practised his Catholic faith was by itself sufficient, considering the country information before the Tribunal, to satisfy the Tribunal that the appellant met the criteria for refugee status under the Migration Act. Otherwise, it was bound to reject his application: see Migration Act, s 65. 49 The Tribunal concluded that, although the appellant was a practising Catholic, he nevertheless did not have a genuine fear of persecution from extremist Islamic groups as he claimed. Paragraphs [125] and [126] cite three points in support of this conclusion: (1) "Catholics are able to practise their faith through established churches in Bangladesh and . . . the [Catholic] [C]hurch is an important part of education and health services in the country"; (2) "[W]hile there is evidence that those who are seen to be attempting to convert others, or are converts themselves have and could still experience harm in Bangladesh, the applicant is not such a person"; and, echoing the observations in paragraph [124], (3) "[T]he applicant has obtained an education and employment in Bangladesh which allowed him to have a stable life there" and was also able to marry. Paragraph [126] also mentions discrimination in government service, but the appellant did not complain of such discrimination and this fact can be put to one side for present purposes. 50 The success of the appellant's argument turns on how one interprets the three points in paragraphs [125] and [126] and the use made of them by the Tribunal. Any interpretation will require deciphering the Tribunal's less than immediately clear reasons. 51 The appellant's argument requires that the decision-making process expressed in paragraphs [125] and [126] be interpreted as follows: (1) "Catholics are able to practise their faith through established churches in Bangladesh" without fear of persecution; (2) The only exceptions to this are "those who are seen to be attempting to convert others, or are converts themselves", who "have and could still experience harm in Bangladesh", but "the [appellant] is not such a person"; (3) Therefore, I am not satisfied that the appellant holds a genuine fear of persecution. 52 This reading of paragraphs [125] and [126] is, in my view, a fair one. However, an alternative reading presents itself. The differences between the two readings are subtle but significant. Paragraphs [125] and [126] could be taken to express a reasoning process as follows: (1) In general, "Catholics are able to practise their faith through established churches in Bangladesh" without fear of persecution; (2) In general, the exceptions to this are "those who are seen to be attempting to convert others, or are converts themselves" but "the [appellant] is not such a person"; (3) Because the appellant's stable life indicates that he does not fall outside the general pattern for practising Catholics outside the high-risk group and he has presented no credible evidence of persecution, I am not satisfied that he holds a genuine fear of persecution. 53 There are two crucial, related points of difference between these two interpretations. First, the appellant's favoured interpretation takes the statement that "Catholics are able to practise their faith through established churches in Bangladesh" (implicitly without fear of persecution) as expressing a fact of universal application, while the alternative interpretation takes it as merely describing the general state of things. The second key point is that the Tribunal's reference to the appellant's stable life plays a different role in the analysis depending on which approach to the first point is adopted. In the interpretation which I take the appellant to favour, reference to the stability of the appellant's circumstances serves as additional but unnecessary support for a conclusion that flows inexorably from the fact that the appellant is not among the high-risk group. If, on the other hand, the reference to the ability of Catholics to practise their faith is taken to describe only the situation in general, the reference to the appellant's stable life is an essential piece of the decision-making process: it indicates that there is no reason to believe the appellant's case departs from the norm, leading to the conclusion that he does not face a risk of persecution. 54 For two reasons, I must conclude that the second interpretation (described in paragraph [52] above) is a better explanation of the Tribunal's approach than the explanation the appellant's position requires. First, considering the size of the Catholic population in Bangladesh - approximately 300,000 according to information cited by the Tribunal - it is difficult to take the Tribunal as expressing a fact of universal application to all Catholics outside the high-risk group. Second, if the Tribunal had in fact intended to indicate that Catholics outside the high-risk group never faced persecution, there would have been no need to refer to the appellant's stable life, as his exclusion from that group would have been sufficient to resolve the issue of his refugee status. As the Tribunal referred to the stability of the appellant's circumstances twice, in both paragraphs [124] and [126], I take it that the Tribunal considered this fact both relevant and necessary to its ultimate conclusion. This point was among those raised with the appellant by the Tribunal as a possible reason to deny his application: see paragraph [75] of the Tribunal's reasons. 55 When the finding that "Catholics are able to practise their faith through established churches in Bangladesh" is understood as simply a description of the state of things in general, it is clear that the finding has some evidentiary support in the record. 56 The Tribunal summarized the country information to which it had regard in paragraphs [97]-[105], under the heading "Information available to the Tribunal regarding the situation of Catholics in Bangladesh". 57 Paragraph [97] records that Christians comprise 1% of the population of Bangladesh and that the majority of Bangladeshi Christians are Catholics. 58 In paragraph [98], the Tribunal cites a United States Department of State report from 2008, which recounts "[r]eports of harassment and violence against the Christian community" in Bangladesh. The specific incidents described in the portions of the report cited by the Tribunal mostly involved Christians who converted others or engaged in activities that could be perceived as attempts at "conversion" (such as "showing a film to build social awareness about arsenic pollution, child marriage, and other social ills"). In one case, however, the report refers simply to a "Christian man" "targeted . . . because of his religious beliefs". 59 Paragraph [99] cites a publication addressing the 2007-2008 period from a group known as "Aid to the Church in Need", which reports a "dramatic rise in extremist activity". The Tribunal quotes a section of the document describing discrimination and pressure to convert, sometimes including "threatening violence", experienced by "Christian and other minority groups". 60 In paragraph [100], the Tribunal refers to a 2008 report from a body known as the United States Commission on International Religious Freedom, based on information gathered in 2006. The report records the concerns of Bangladeshi religious minorities "regarding the safety of their co-religionists, citing the growth in Islamist radicalism and instances of violence, including fatalities, in which the victims' religious affiliation or activities may have been factors". The specific incidents described in the report include violence against converts to Christianity and Christian NGO workers perceived as attempting to convert others, as well as attacks on mosques of a minority Muslim group. 61 Paragraph [101] comprises a bullet-pointed list of sixteen incidents, dating from 2001 through 2009, gathered from various sources and described by the Tribunal as examples of "[s]pecific incidents of mistreatment and serious harms being directed at Christians in Bangladesh". Most were directed at converts, religious leaders or individuals speaking against Islam. Some, however, such as the incidents described in the first and fourth bullet-pointed items, appear to have involved lay Christians not part of the high-risk group. 62 Paragraph [102] contains information regarding the Bangladesh Christian Association and its involvement in protests opposing violence against Christians. 63 Paragraphs [103]-[105] refer to information about the ideology and activities of the JMB. The Tribunal notes that the JMB remains active in Bangladesh and describes several incidents of violence in which it was reportedly involved. The religious affiliation and activities of the victims of these incidents are not specified, although the Tribunal notes that the JMB's professed goal is to "establish[ ] the rule of Islam in Bangladesh through an armed struggle". 64 Although a few of the incidents of violence against Christians referred to in paragraphs [97]-[105] were directed at individuals outside the high-risk group, the majority were directed at those within that group. The country information relied on by the Tribunal thus supports a finding that most attacks are directed against the high-risk group and few Catholics outside the group face persecution. Considering the size of Bangladesh's Catholic population, the relatively small number of documented incidents of religiously-motivated violence against practising Catholics outside the high-risk group provides at least some basis for the Tribunal's characterization of practising Catholics at large as generally free from persecution. 65 Thus, on the face of the Tribunal's reasons, the Tribunal's finding that practising Catholics such as the appellant did not in general face a real risk of persecution had some evidentiary support. This assessment is confirmed by an independent reading of some of the documentary information before the Tribunal. As the first respondent noted, Canadian Immigration Review Board information noted that the government had taken steps to provide security at minority religious places of worship and emphasized the heightened risk to converts. US Department of State information, to which the Tribunal specifically referred, mentioned the Bangladeshi government's and the court's protection of religious freedom, although noted that there was objection to "efforts to convert persons from Islam". 66 For these reasons, I would reject Ground 4 as a ground of jurisdictional error. The appellant's no evidence challenge cannot succeed.
CONCLUSION 67 Although certain aspects of the Tribunal's approach to drafting its reasons reflect a distressing lack of care, this Court reviews decisions of the Tribunal for jurisdictional error only. The appellant's arguments disclose no jurisdictional error, and the appeal must be dismissed. The first respondent is entitled to the costs of the appeal. 68 The first respondent requested the Court to fix costs in the amount of $6,486 pursuant to O 62 r 4(2)(c) of the Federal Court Rules. This application was supported by an affidavit. The affidavit generally supported the amount claimed but was lacking in some useful details. Under O 62 r 40C(4) and item 43H of Schedule 2, however, a party to a migration appeal that is finalised after a final hearing may claim as costs of the proceeding, including disbursements, an amount of not more than $5,736 via a "short form bill". Rule 40D sets out a procedure to be applied under the short form bill regime. 69 The affidavit filed by the first respondent strongly indicates that the first respondent has an entitlement to at least $5,736 by way of costs. In all the circumstances, however, I would not be disposed to fix an amount for costs in excess of this amount. Accordingly, I propose to order that the applicant pay the first respondent's costs fixed in the amount of $5,736. The parties shall have seven days from the date of judgment to make any submissions as to a different costs order.
SZNKV
Minister for Immigration and Citizenship
[2009] FMCA 1053
(2000) 168 ALR 407
(2003) 131 FCR 80
(2004) 207 ALR 12
(1997) 74 FCR 553
(2009) 259 ALR 429
(2006) 154 FCR 302
(2005) 146 FCR 562
(1997) 191 CLR 559
(1999) 197 CLR 510