SZUYK v Minister for Immigration and Border Protection

Federal Court of Australia|2016-03-07|Before: Mr P, Farrell J

The appeal be dismissed.
The appellant pay the first respondent's costs in a lump sum amount of $4,530.27. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT 1 This is an appeal from a judgment of the Federal Circuit Court of Australia delivered on 30 September 2015: SZUYK v Minister for Immigration & Border Protection [2015] FCCA 2448 ("SZUYK"). The primary judge dismissed an application for judicial review of a decision of the Refugee Review Tribunal (now the Administrative Appeals Tribunal) made on 21 July 2014. The Tribunal affirmed a decision of a delegate of the Minister made on 11 December 2013 to refuse the appellant a Protection (Class XA) visa.

Tribunal Decision 6 The appellant applied to the Tribunal for a review of the delegate's decision on 8 January 2014. With the assistance of a Bengali interpreter, he attended a hearing before the Tribunal on 1 July 2014 to give evidence and present arguments. The appellant was represented in relation to the review by his registered migration agent however his agent did not attend the hearing due to illness. 7 On 21 July 2014, the Tribunal affirmed the delegate's decision and set out its reasons in a Statement of Decision and Reasons ("Decision Record"). The Tribunal was not satisfied that the appellant was owed a protection obligation, either as a refugee under s 36(2)(a) or as a beneficiary of complementary protection under s 36(2)(aa) of the Migration Act: Decision Record at [57] and [60]. 8 The Tribunal found that he had not been truthful in relation to his treatment in Bangladesh, why he had left Bangladesh and his fears about returning to Bangladesh: Decision Record at [13]. The Tribunal determined that the appellant was not a credible witness having regard to a number of inconsistencies between the evidence contained in his written statement and the oral evidence which he gave at the hearing. The Tribunal identified seven significant areas of concern: (1) Inconsistent evidence concerning the development of the appellant's relationship with his partner and the circumstances of her first pregnancy: Decision Record at [14]-[18]. (2) Inconsistent evidence concerning the reaction of the community to the appellant's relationship with his partner: Decision Record at [19]-[21]. (3) Inconsistent evidence concerning the alleged seizure of his parents' home and the forced migration of his parents and sister to India, including whether he was present when his father was forced to sign the property transfer paper in relation to the family home. There were also competing accounts of whether he was forced to flee to India with his parents and sister or whether he travelled there subsequently. He did not provide any explanation for the significantly inconsistent accounts: Decision Record at [22]-[24]. (4) Inconsistent evidence concerning the circumstances of his alleged kidnapping and the motivation of his kidnappers (that is, whether he was kidnapped to pressure him into converting to Islam or to pressure his father into signing the property transfer paper): Decision Record at [25]-[26]. (5) Inconsistent evidence concerning the appellant's employment history: Decision Record at [27]. (6) The appellant's voluntary travel to Bangladesh for 1-3 months in each year since 2002 or 2003 is inconsistent with a genuine fear of persecution there: Decision Record [28]-[29]. (7) The appellant's extensive travel history including Cambodia, Laos and Taiwan (2004), China, South Korea and Hong Kong (2007) and France, Switzerland, Germany, Italy, United Kingdom, Netherland and Belgium (2012) without seeking protection in any of the countries which are signatories to the Refugee Convention: Decision Record at [30]. 9 The Tribunal said at [31]-[32] (names omitted): When considered cumulatively the above concerns are so significant and numerous that they lead the Tribunal to find that the applicant is not a credible witness. The Tribunal does not accept that he was kidnapped, assaulted, threatened, forced into hiding or forced to flee to India. The Tribunal does not accept that the applicant's family's home was forcibly or fraudulently possessed, that his father or family were assaulted or that they were forced to flee to India. The Tribunal does not accept that a Fatwa has been issued against the applicant. The Tribunal does not accept that [his partner] was kidnapped, assaulted, threatened or forced into hiding as a result of their relationship. It is in light of these findings and the Tribunal's overall adverse credibility finding that the Tribunal has considered each of the applicant's claims below.

Claim relating to interfaith relationship 10 The Tribunal accepted that the appellant was either married to or in a de facto relationship with his partner. However, the Tribunal was not satisfied that the appellant was in an interfaith relationship or that he had suffered harm as a result of their relationship or that he would suffer harm in the future because of the relationship. The appellant had not provided any evidence that his partner is Muslim and the Tribunal did not find him credible in relation to the development of their relationship and the claimed consequences to himself, to his family or to his partner: Decision Record at [33]-[34].

Claim relating to political activities and opinion 11 In light of the Tribunal's significant concerns about the appellant's credibility and the evidence that he gave, the Tribunal was not satisfied that the appellant had been truthful about his involvement in the Freedom Party or that he fears returning to Bangladesh for that reason or that there was a real chance that he would be harmed as a result of his political opinion or activities if he were to return to Bangladesh: see Decision Record at [35]-[51]. 12 The Tribunal was prepared to accept that the appellant was known to a person who is now a citizen of Australia who represented the Freedom Party in the 1991 elections and that leaders and activists in the Freedom Party have been targeted in Bangladesh. The Tribunal found that if the appellant ever did have a role in the Freedom Party it was a minor, local role and he did not have any significant political profile. Not only did country information indicate that the Freedom Party was now largely politically defunct, the appellant's own evidence had been that his role in politics had not been significant and he had been very young at the time he was given the role of Organising Secretary (he had been in year eight or nine at school). He had not provided any evidence that low level members or supporters of the Freedom Party were currently targeted in Bangladesh. The Tribunal did not accept that there was a real chance that the appellant would be harmed if he did in fact hold the position of Organising Secretary of Sirajdikhan (about which the Tribunal had significant doubts). The appellant claimed that his involvement in politics would only be used as an excuse to harm him because of his relationship with his partner and the seizure of his family's land, claims which the Tribunal did not accept. The Tribunal noted that the appellant had voluntarily returned to Bangladesh without difficulty many times which suggested to the Tribunal that he did not fear persecution because of his political profile. Further, he did not claim to fear harm because he is named on the Freedom Party's English language website.

Claim relating to fraudulent passport 13 Having found that the appellant was a national of Bangladesh and that it was therefore his returning country if his application was unsuccessful, the Tribunal rejected the appellant's claim to fear harm upon returning to India as a result of having travelled on a fraudulently obtained Indian passport: Decision Record at [56].

Claim relating to religion 14 The appellant's fourth claim was to fear returning to Bangladesh because he is Hindu. It is the manner in which the Tribunal dealt with this claim in respect of the complementary protection criterion which was the basis of the appellant's complaint to the Federal Circuit Court and to this Court. It is therefore useful to set out the relevant paragraphs in full: Decision Record at [52]-[55] and [58]-[60] (footnotes and identifying descriptors omitted). Claims relating to religion 52. While the applicant has not provided any evidence of his religion, he has consistently claimed to have been Hindu and the Tribunal is willing to accept this is the case. The Tribunal accepts that the surname [name] is not a common Muslim name and that it is often associated with Hindus. 53. At the Tribunal hearing the applicant raised a new claim that he fears returning to Bangladesh because he is Hindu. In 2012, Hindus constituted only approximately 9 per cent of Bangladesh's population of 152.5 million, the majority of whom are Muslim. As discussed with the applicant at the hearing, USDOS reported in May 2013 that members of Hindu, Christian, Buddhist, and Ahmadiyya Muslim communities in Bangladesh "experienced harassment and sometimes violence from the Sunni Muslim majority population". However, USDOS states that the "government and many civil society leaders" believe that "violence against members of minority religious groups normally had political or economic dimensions, and could not be attributed solely to religious belief or affiliation". When this was put to the applicant he stated that recently he obtained news that his Hindu neighbour was evicted from their house. He has not provided any evidence in support of this claim. 54. When the Tribunal put to the applicant that it had concerns about whether the country information supported his claim that all Hindus in Bangladesh are being persecuted he stated that it happens every day but they are compelled to remain in Bangladesh because they cannot go to India. The Tribunal does not accept that this is the case. As discussed with the applicant at the hearing in May 2014 Narendra Modi, now Indian Prime Minister, stated that Bangladeshi refugees who were Hindu and expelled from Bangladesh for religious reasons were welcome in India: "BJP [main opposition Bharatiya Janata Party]'s position is very clear: vote-bank politics has destroyed the country… Those who are Bangladeshi infiltrators will have to go back," Modi said. "Two types of people have come from Bangladesh: the refugees who have been thrown out in the name of religion and the infiltrators," he said at an election rally here. "In any country of the world if there are Indians in whose blood the colour of India runs, if they are ethnic Indians, whatever be the colour of their passport, should not they come to India and be greeted with open arms?" Those who are thrown out of Bangladesh, should they come to India or not? ... Those who are thrown out of Bangladesh, those who observe Durgastami [Hindu festival] and speak Bengali, they are all our Mother India's children. They will get the same respect just as any Indian," he said. 55. The Tribunal has found that the applicant was not assaulted, threatened or kidnapped in Bangladesh and that his family were not assaulted, threatened, forcibly removed from their property or removed from Bangladesh. The applicant was able to obtain education in Bangladesh and has been able to afford to travel extensively internationally. On the basis of the applicant's individual circumstances and the independent country information, the Tribunal is not satisfied that there is a real chance that the applicant will be harmed on the basis of his religion. Claims relating to fraudulent Indian passport … Complementary protection criteria 58. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). 59. For the reasons given above the Tribunal found that the applicant is not a credible witness and the Tribunal is not satisfied that there is a real chance he would be harmed as a result of his relationship with [his partner], his political opinions or activities or his religion as a Hindu. In MIAC v SZQRB, the Full Federal Court held that the 'real risk' test imposes the same standard as the 'real chance' test applicable to the assessment of 'well-founded fear' in the Refugee Convention definition. The Tribunal accepts that the rest for 'real chance' is the same as that for 'real risk'. Therefore, for the reasons discussed above the Tribunal is not satisfied that there is a real risk that the applicant will be harmed as a result of his relationship with [his partner], his religion or his political opinions or activities. 60. Having considered the applicant's claims individually and cumulatively, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

Application to the Federal Circuit Court 15 The appellant applied to the Federal Circuit Court for judicial review of the Tribunal's decision on 22 August 2014. The application was based on the following three (3) grounds (as written) but only the first two were pressed: 1. The Refugee Review Tribunal has failed to provide reasons for its decision pursuant to section 36(2)(aa) of the Migration Ac. Particulars: In dealing with the Applicant's claims under section 36(2)(aa) of the Migration Act 1958 (Cth), the RRT explicitly failed to provide separate reasons to its consideration under section 36(2)(a) of the Act. 2. The RRT has failed to apply the correct test pursuant to Section 36(2)(aa) of the Migration Act 1958 Particulars: In dealing with the Applicant's claims under section 36(2)(aa) of the Migration Act 1958 (Cth), the Refugee Review Tribunal explicitly failed to disaggregate the statutory formulae under section 36(2)(a) and 36(2)(aa) of the Act at Paragraph [59] and following the decision, thereby transporting findings regarding the motivations of his persecutors at Paragraph [47] into its consideration of the Applicant's complementary protection claims. 3. The Refugee Review Tribunal denied the Applicant's procedural fairness. Particulars: Despite the Applicant being unrepresented during the hearing due to the sickness of his Migration Agent, the Tribunal failed to offer or to grant the Applicant an adjournment. 16 The primary judge understood the application to raise essentially one issue, namely whether the Tribunal's findings regarding the appellant's claims to protection as a refugee under s 36(2)(a) based on religion were dispositive of his religious based claims under the complementary protection criterion in s 36(2)(aa), having regard to [53] and [59] of the Decision Record: SZUYK at [28] and [39]. 17 The primary judge accepted that a decision maker such as the Tribunal is required to correctly construe and consider claims (and component integers thereof) made by an applicant or apparent on the face of the material before him, relying on Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244; [2001] FCA 1802 at [42] per Allsop J (with whom Spender and Merkel JJ agreed); Dranichnikov v Minister for Immigration & Multicultural Affairs (2003) 197 ALR 389; [2003] HCA 26 at [22]-[24], [27] per Gummow and Callinan JJ; [88]-[89] per Kirby J; [95] per Hayne J. 18 The primary judge found at [43] that ground one did not disclose any error of law, that the Tribunal had had explicit regard to the complementary protection criterion in s 36(2)(aa) at [58] and [59] of the Decision Record and that: It concluded that neither the applicant's relationship with his partner, his political opinions or his activities or his religion would put him at risk of harm should he return to Bangladesh. The Tribunal's adoption of its factual findings in respect of the Refugees Convention criterion in support of its findings made pursuant to the complementary protection criterion [was] uncontroversial, given that the "real chance" test relevant to s.36(2)(a) of the Migration Act and the "real risk" test relevant to s.36(2)(aa) are one and the same. Where, as in the present case, the Tribunal's factual findings are based on an adverse view of the credibility of the applicant's claims and evidence, these findings will be relevant to assessment under the complementary protection criterion in addition to the assessment under the Refugee Convention criterion. 19 In saying this, the primary judge relied on decisions of the Full Court in Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505; [2013] FCAFC 33 ("SZQRB") at [246] and SZSHK v Minister for Immigration and Border Protection (2013) 138 ALD 26; [2013] FCAFC 125 at [32]. The primary judge also found that the Tribunal had "correct and proper regard to the legal authorities and was not required to provide "separate reasons" for its findings under s 36(2)(aa)of the Migration Act": SZUYK at [44]. 20 As to the second ground, the primary judge found at [45] that: … the applicant's assertion in relation to [53] and [59] of the Tribunal decision would have had some substance if the applicant had advanced any claims that could not be disposed of by reference to the refugee criterion alone. That is because the country information before the Tribunal indicated that religious minorities in Bangladesh experienced some risk of harm from the Sunni Muslim majority population but that the risk was multi-faceted rather than attaching specifically to the attribute of religion. The Tribunal records at [53] that when the country information was specifically put to the applicant he merely noted that his Hindu neighbour had been evicted from his house. He did not provide any evidence in support of that claim to the Tribunal and neither did he advance any claim that required consideration pursuant to the complementary protection criterion. As has been stated many times, the Tribunal is not under any obligation to pursue a claim not made by an applicant. 21 To the extent that the appellant's religious claim was "interwoven" with his political claim, the primary judge found that both claims had been plainly rejected by the Tribunal and there was no surviving element of the appellant's claims that required separate consideration pursuant to the complementary protection criterion: SZUYK at [46]. 22 Having found that the Tribunal's decision was not affected by jurisdictional error, the primary judge dismissed the application: SZUYK at [47].

Appeal to this Court 23 The appellants filed a notice of appeal from the Federal Circuit Court's decision on 20 October 2015. The grounds of appeal repeat the grounds argued in the Federal Circuit Court. 24 Case management orders made on 20 October 2015 provided the appellant with the opportunity to file written submissions by 3 February 2016. He did not do so. The Minister filed written submissions on 10 February 2016 addressing each of the three proposed appeal grounds. The Minister objected to the third ground being revived on appeal as it had not been argued before the primary judge. 25 On 16 February 2016 at 3.41 pm, the day before the hearing, the appellant filed written submissions in which he sought leave to amend the notice of appeal to plead a single ground of appeal (as written): His Honour erred in finding that the Tribunal findings with respect to the Appellant's claims to fear returning to Bangladesh because he is Hindu were dispositive of the Appellant's claims. Particulars His Honour erred in paragraph [45] of the decision in holding that the Appellant's response to country information put to him during the hearing meant that the Tribunal did not have to give independent consideration of the Appellant's claim in reference to the complementary protection criterion. 26 At the hearing, the Minister's representative opposed the grant of leave to raise the new ground of appeal or to rely on the submissions filed the day before, but indicated that she would be in a position to address them if leave were granted. Counsel for the appellant (who had represented the appellant in the proceedings in the Federal Circuit Court) submitted that until two days before the hearing, the appellant had been self-represented. 27 The new proposed ground of appeal raised essentially the same issue as that identified by the primary judge as the issue raised by the appellant in the proceedings before the Federal Circuit Court. This being the case and as the Minister was in a position to respond to the ground, I granted leave to raise the new ground and to rely on the written submissions filed by the appellant. 28 The appellant's arguments in this Court were based on [52]-[59] of the Decision Record and were substantially the same as those advanced in the Federal Circuit Court: see SZUYK at [28]-[40]. The appellant submitted that: (1) At the Tribunal hearing, the appellant squarely raised a claim to fear harm if he were to be returned to Bangladesh because of his Hindu religion and the Tribunal accepted that the appellant had raised such a claim at [53] of the Decision Record. (2) There is no basis for the view that this claim was advanced specifically with reference only to the refugee criterion, nor had the appellant abandoned a claim to fear harm if he were to be returned to Bangladesh because he is a Hindu. The Tribunal nonetheless dealt with the claim only as it relates to the refugee criterion. This was because the Tribunal dealt with this claim by reference to the motivations of the persecutors, which is relevant to the test under the Refugee Convention but irrelevant to the alternative test under complementary protection. (3) The Tribunal (at [52]) accepted that the appellant is Hindu or could be identified as such and (at [53]) that "Hindus constituted only approximately 9 percent of Bangladesh's population of 152.5 million, the majority of whom are Muslim". At [53], the Tribunal went on to say that the USDOS [United States Department of State] states that the "government and many civil society leaders" believe that "violence against members of minority religious groups normally had political or economic dimensions, and could not be attributed solely to religious belief or affiliation". (4) The appellant's response to this country information was an anecdote that his Hindu neighbour was evicted from his house ("anecdote"): Decision Record at [53]. This response is ambiguous: either the appellant did not understand what use the Tribunal was proposing to make of the country information or the anecdote was an attempt to further his claim by way of an example involving a person he knows. Either way, it cannot be seen as an abandonment of his claim to complementary protection but rather "an extension of it". The appellant says that both the Tribunal and the primary judge "placed some store" in the fact that the appellant provided no evidence in support of this anecdote and, "although in different ways", they both proceeded to misdirect themselves away from dealing with the appellant's claim to fear harm on the basis of religion. (5) The Tribunal misdirected itself at [54] of the Decision Record first, by putting the appellant's claim much higher than he had advanced it, that is, "all Hindus in Bangladesh are being persecuted"; and second, by proceeding to consider whether India would accept Hindus as refugees. (6) The Tribunal directed itself correctly in relation to the "real risk" and "real chance" tests at [59] of the Decision Record, having regard to the decision of the Full Court in SZQRB at [245]-[246] (per Lander and Jagot JJ). (7) However, turning on the country information, the Tribunal transposed its findings from the refugee criterion to the complementary protection criterion when it found "Therefore, for the reasons discussed above the Tribunal is not satisfied that there is a real risk that the applicant will be harmed as a result of his relationship with [his partner], his religion or his political opinions or activities". As a result, the Tribunal's consideration of the complementary protection criterion became "bound up" in the refugee criterion reasoning. While those motivations have relevance to the refugee criterion, they have no relevance to the complementary protection criterion and are not dispositive of a claim based on that criterion. Despite the motivations of persecutors, it remained a necessary and foreseeable consequence of the appellant being returned to Bangladesh that he would face harm on account of being Hindu. (8) The Tribunal asked itself the wrong question when dealing with the complementary protection claim, in light of s 36(2A), which exhaustively defines "significant harm" for the purposes of s 36(2)(aa). (9) At [55] the Tribunal only deals with a subset of the harms (assaults, threats or kidnapping) contemplated by s 36 (2A) as opposed to those types of harm anticipated by the statutory tests, namely, "cruel or inhuman treatment or punishment" and "degrading treatment or punishment". Further, past access to education and the appellant's ability to travel are irrelevant to whether the appellant would face a real risk of significant harm as a necessary and foreseeable consequence of being returned to Bangladesh. The last sentence of [55] stands as a statement absent reasoning; its meaning is drawn explicitly from the prior discussion. 29 In seeking to establish the ground of appeal, Counsel for the appellant drew on the reasoning in SZSFK v Minister for Immigration & Citizenship [2013] FCCA 7 ("SZSFK") at [97], a decision of the primary judge who presided in SZUYK. In SZSFK, in the context of a reviewer's approach to the complementary protection criterion, the primary judge emphasised that the use of the word "systematic" was problematic because it was language drawn from a different provision in the Migration Act (s 91R(1)(c) as then enacted) which was irrelevant to the complementary protection assessment under s 36(2)(aa). His Honour found that: It had been open to the reviewer to deal with complementary protection in a self-contained way in part of his report. The use of such language creates confusion and may point to reviewable legal error. It was problematic to use the term "systematic" in describing a "non systematic or targeted threat" to the applicant because it was not clear whether the Tribunal intended to refer to s 91R(1)(c) or whether it was making a general reference "intended to quantify risk". Reliance on unspecified "findings set out above" was particularly problematic where that appears to be a reference to all of the reviewer's findings, some of which were unrelated to the complementary protection criterion.

Consideration 30 This appeal must fail and may be disposed of briefly. 31 The primary judge correctly summarised the Tribunal's findings at [53]-[56] of the Decision Record in SZUYK at [21]: The Tribunal accepted that the applicant was Hindu. The Tribunal further accepted that Hindus are targeted (sometimes violently) by members of the Sunni Muslim majority. However, the country information suggested that violence against Hindus typically has a political or economic dimension. As such, there was no evidence to suggest that violence against the applicant possessed the relevant risk profile. The Tribunal was satisfied that the applicant could safely return to Bangladesh. 32 As the appellant's claim to fear persecution because of his religion is a claim available under the Refugee Convention, the other motivations of the perpetrators were relevant to "quantifying the risk" to the appellant as a Hindu, not as a nexus to the Refugee Convention (even though fear of persecution based on political affiliation would have such a nexus). I reject the submission that taking into account whether there are political or economic dimensions in assessing the risk of persecution to a person because they are Hindu was to "bind up" the assessment under the complementary protection criterion with Convention-related thinking. I do not accept that the Tribunal asked itself the wrong question. 33 On a plain reading of the Decision Record at [53], the appellant responded to the country information identified by the Tribunal with the anecdote and by doing so he sought to assert that Hindus were at risk of persecution in Bangladesh for that reason alone. Both the Tribunal and the primary judge were entitled to find that, without more evidence, the anecdote did not establish the appellant's contention. In my view, the Tribunal addressed the issue of risk of persecution when it put to the appellant that "it had concerns about whether the country information supported his claim that all Hindus in Bangladesh are being persecuted" at [54] of the Decision Record. The Tribunal did not misdirect itself when it relied on the country information in assessing risk under the refugee criterion or the complementary protection criterion. 34 The Tribunal dealt with the appellant's claim based on his adherence to the Hindu religion under both the refugee criterion (Decision Record at [52]-[55]) and the complementary protection criterion (Decision Record at [58]-[61]). That is inconsistent with a contention that the Tribunal considered the appellant to have abandoned any of his claims to protection on that basis. Further, as noted by the primary judge in SZUYK at [46], to the extent that the appellant's religious claim was "interwoven" with his political claim and was therefore relevant to the assessment of the degree of risk facing the appellant (taking into account the country information), the Tribunal rejected both of those claims for reasons which were open to it on the materials before it. 35 In contrast to the facts of SZSFK, the appellant did not identify (to the Tribunal or the Court) any part of his claim which would not satisfy the refugee criterion but which may satisfy the complementary protection criterion. Nor, on the basis of the Decision Record, is there anything which "emerges clearly" from the materials considered by the Tribunal that would establish such a claim: see NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263 at [68]. I am satisfied that this is what the primary judge referred to at [45] when he said "the applicant's assertion in relation to [53] and [59] of the Tribunal decision would have had some substance if the applicant had advanced any claims that could not be disposed of by reference to the refugee criterion alone" and "neither did he advance any claim that required consideration pursuant to the complementary protection criterion." 36 In light of the detail of the appellant's claims, the country information and the findings of the Full Court in SZQRB at [245]-[246], no error is revealed by the Tribunal's reliance at [59] of the Decision Record on its factual findings set out earlier in the Decision Record. Based on those factual findings, it was open to the Tribunal to find that it was not satisfied that there was a "real risk" that the appellant would be harmed if he returned to Bangladesh on the basis of his relationship with his partner, his religion or his political opinion or activities. Although [59] of the Decision Record is a somewhat compressed consideration of the complementary protection claims, it is adequate in the circumstances. 37 For completeness, the fact that the appellant had been able to obtain an education in Bangladesh and afford to travel extensively are indicators that he had not suffered harm in the past having regard to the nature of his claims. Further, those factors can relevantly form part of the Tribunal's assessment of the appellant's claims, including the risk of future harm. I do not accept that the Tribunal's reasons at [55] disclose jurisdictional error. 38 Last, I agree with the primary judge in SZUYK at [35] that it is curious that the Tribunal at [54] of the Decision Record dealt so extensively with the issue of whether the appellant could find safety in India as a Hindu. While the issue is irrelevant because Bangladesh is the "receiving country", this consideration appears to be a response to an issue raised by the appellant and it reveals no error on the part of the Tribunal.

Conclusion 39 For the foregoing reasons, the appellant has not made out his ground of appeal. I will dismiss the application. 40 On the basis set out in the affidavit of Ms Alice Yang filed on 10 February 2016, I will order that the appellant pay the Minister's costs in a lump sum amount of $4,530.27. I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Farrell.

Migration Act 1958(Cth)ss 36(2), 36(2A), 91R(1)(c)

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