FEDERAL COURT OF AUSTRALIA

SZCPK v Minister for Immigration & Multicultural Affairs [2006] FCA 1657

Migration Act 1958 (Cth) s 424A

SCIA v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 238 distinguished

SZEEU v Minister for Immigration (2006) 150 FCR 214applied

VAF v Minister for Immigration & Multicultural Affairs (2004) 206 ALR 471applied

SZEZI v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1195 distinguished

SZCPK v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL

NSD 683 OF 2006

EDMONDS J

1 DECEMBER 2006

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellant pay the first respondent’s costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

Introduction

1                     This is an appeal from the Federal Magistrates Court (Raphael FM) dismissing an application for judicial review of a decision of the second respondent (‘the Tribunal’) affirming a decision of a delegate of the first respondent (‘the Minister’) not to grant the appellant a protection visa.

Background

2                     The appellant, along with his wife and son, are citizens of Bangladesh.  They arrived in Australia on 11 May 2003.  On 4 June 2003, they lodged an application for protection visas (class XA) with the Department of Immigration and Multicultural and Indigenous Affairs.  On 27 June 2003, a delegate of the Minister refused to grant them protection visas.  On 24 July 2003, the appellants applied for review of that decision to the Tribunal.

tHE APPELLANT’S CLAIM

3                     Only the appellant made a claim under the Convention.  His wife and son relied on their membership of his family.

4                     The appellant claimed to be a Muslim by birth who had converted to Christianity as a Baptist in 2002.  As a result, he claimed he had suffered harassment from his family, abuse and harassment from the community, abuse and beatings by Muslim groups, and had been threatened with violence.  He further claimed that Muslim groups had harassed and abused his wife putting their lives in danger, and that their house had been attacked and household items destroyed.

The Tribunal's decision

5                     The Tribunal accepted the appellant’s claim to be a recent convert to Christianity.  However, it was not satisfied that the appellant had a deep or unequivocal commitment to Christianity or would remain a Christian for the rest of his life as he had claimed.  As such, it concluded that he was unlikely to attract the opposition which independent country information indicated existed in relation to proselytising and conversion efforts by Christian missionaries and adherents in Bangladesh.

6                     In relation to the criticism the appellant claimed to have suffered as a result of his conversion to Christianity, the Tribunal accepted that there is some discrimination in Bangladesh by the Muslim majority against the Hindu, Christian and Buddhist minorities and strong social resistance to conversion from Islam.  However, it also referred to independent country information relating to guarantees of freedom of religion and a Department of Foreign Affairs and Trade (‘DFAT’) assessment that while Bangladesh has religious extremists, the majority of Bangladeshi Muslims practice a tolerant form of the religion.

7                     The Tribunal referred to the appellant’s claim that his brother-in-law had invited him to come to Australia, and said it was not satisfied that the appellant had experienced the rejection he claimed from his family or would face such rejection on his return.

8                     The Tribunal indicated it was not satisfied the appellant’s wife and elder child identify themselves as Christians and considered that they would be perceived by their community in Bangladesh to have remained Muslim.  It noted, in this respect, the fact that the couple had not given a recognisably Christian name to their younger child, who had been born in Australia.  The Tribunal rejected the appellant’s claim that he suffered or would suffer persecution as a result of harm or threats of harm to his wife or elder child arising from their being Christian.

9                     The Tribunal did not accept that the appellant was not able to work following his conversion, and also considered that on his return to Bangladesh he would he able to pursue other ways of gaining his livelihood if he did not resume his former business as a tax advisor.

10                  The Tribunal also did not accept as plausible the appellant’s claims to have been subjected to violence, destruction of property and death threats arising from his interest in Christianity.  The Tribunal referred to the absence of details of specific incidents of harm amounting to Convention discrimination, and said it considered the claimed incidents of violence implausible in light of the independent country information. The Tribunal accepted as genuine three letters threatening him in intemperate language, but was not satisfied that the threats in the letters would be carried out.  It also considered that, if the appellant faced such threats, then in the light of country information as to the Bangladeshi government’s commitment to maintain a secular Bangladesh, the appellant would be able to obtain effective assistance from the authorities against what would be illegal acts of violence and that hewould not be subjected to extra-legal treatment under Sharia law as his advisor claimed.  The Tribunal also noted that fellow Christians who had provided written material in support of the appellant’s claim continued to reside in Bangladesh and did not refer to suffering persecution themselves, suggesting it would be possible for the appellant to similarly avoid harm in Bangladesh.

11                  The Tribunal found the appellant had provided insufficient detail to establish his claims to have suffered harassment and criticism from his family or the community, that there was no basis for his belief that he would be mistreated on his return, and that, taking into account the independent country information, his claims were not plausible.

12                  The Tribunal considered the appellant’s claim to have travelled to India with hiswife in late 2002 to escape persecution to be unconvincing.  It also considered that his return to Bangladesh in late 2002 undermined the credibility of his claim to have suffered significant harm or mistreatment following his conversion or to hold a genuine fear of persecution on his return and it noted that it did not accept this part of his testimony as adding support to his claim.

13                  The Tribunal noted the appellant’s claim that the current Bangladeshi government was becoming more susceptible to Muslim pressure and hence to intolerance of other religions, but gave greater weight to independent country information that the government did not intend to change the secular nature of Bangladesh despite the inclusion of two Islamic parties in the governing coalition.

14                  The Tribunal concluded that the appellant and his family would be able to return to Bangladesh without facing a real chance of Convention related persecution arising from their association with the Baptist Church.

The Federal Magistrate’s Court

15                  Three principal complaints were made before the court below.

16                  It was argued that the Tribunal failed to consider and deal with country information relating to the mistreatment of minorities in Bangladesh and the special problems faced by converted Christians.  It was argued that the claims considered by the Tribunal were really restricted to the claims of persecution arising out of the attitude taken to the appellant by his family.  His Honour rejected this argument, citing references in the Tribunal’s decision to community criticism of the appellant’s conversion to Christianity, and to information concerning extreme Muslim pressure on the Bangladeshi government.

17                  A second complaint was made that the Tribunal applied the wrong test when finding that it was not ‘satisfied that the threats in the three letters submitted by the appellant would be carried out’.  His Honour was asked to infer from these words that the Tribunal had applied the wrong test.  His Honour rejected the submission that he should draw such an inference, noting that the Tribunal referred clearly throughout its decision to a ‘real chance of Convention persecution’.  There was no indication that the Tribunal used some other standard.  His Honour also rejected the complaint that the appellant had been given no chance to comment on the Tribunal’s finding, noting there could be no breach of procedural fairness because of the restriction imposed by s 422B of the Migration Act 1958 (Cth) (‘the Act’).

18                  It was also argued that the Tribunal made a finding that there was effective protection available to the appellant without indicating the material it relied on in making the finding.  His Honour pointed out that the Tribunal made its finding because of its views as to the commitment of the Bangladeshi government to maintain a secular Bangladesh – views which were supported by independent country information before the Tribunal.  His Honour was therefore unable to accept the argument.

The Appeal to this Court

19                  At the commencement of the hearing of the appeal I granted the appellant leave to rely on an amended notice of appeal filed 30 October 2006.  The first three grounds of the amended notice of appeal were new although grounds 1 and 2 had been relied on below.  Grounds 4, 5 and 6 of the amended notice of appeal corresponded with grounds 4, 2 and 3 of the notice of appeal but none of these grounds was relied on below.

Ground 6

20                  Ground 6 of the amended notice of appeal (ground 3 of the notice of appeal) was at the forefront of the appellant’s appeal and was in the following terms:

‘His Honour also erred in upholding the decision of the Second Respondent where the Second Respondent’s assessment of the Appellant’s evidence and its findings was irrational and/or unreasonable and/or [were] reached without proper basis and/or by ignoring relevant material.’

21                  Ground 6 was not relied on below so the allegation of error on the part of his Honour is difficult to comprehend.

22                  In any event, ground 6 was particularised, inter alia, as follows:

‘The Second Respondent conducted its fact finding task substantially in a manner that a fair-minding observer might reasonably apprehend that the conclusions had been reached with a mind not open to persuasion and unable or unwilling to evaluate all the material fairly.’

23                  The appellant’s written submissions allege there was a reasonable apprehension of bias by reason of, inter alia, criticisms the Tribunal made of answers given by the appellant; the very open-ended questions about Christianity the Tribunal asked; the way the Tribunal confused the appellant by prefacing difficult questions about religion with unsubstantiated generalisations about the teachings of Islam and their similarity to Christianity; and the unfair accusations the Tribunal made in the course of its questioning.  Reference was also made, in support of this ground, to the Tribunal’s failure to record in its reasons for decision, answers in which the appellant demonstrated a familiarity with, and understanding of, Christianity; to the Tribunal’s failure to record, in an entirely accurate way, and the Tribunal’s misrecording of certain of the appellant’s evidence.

24                  The appellant further submitted that it was unreasonable, irrational and illogical for the Tribunal to find that the appellant had not ‘properly grasped some of the essentials of Christianity, including aspects that distinguished it from Islam’.

25                  Finally, the appellant submitted that the separate instances of irregularity and unreasonableness recited, when taken together, would have had the cumulative effect of over-bearing and intimidating the appellant and unfairly representing his evidence.  In turn, this would create an impression in the mind of a fair-minded lay observer sufficient to sustain the allegation of apprehended bias.  Reference was made to what was said by the High Court in Re Refugee Review Tribunal & Anor; Ex parte H & Anor (2001) 179 ALR 425 at [31]:

‘Where, however, parties are not legally represented in inquisitorial proceedings, care must be taken to ensure that vigorous testing of the evidence and frank exposure of its weaknesses do not result in the person whose evidence is in question being over borne or intimidated.  If that should happen, a fair-minded lay observer or a properly informed lay person might readily infer that there is no evidence that the witness can give which can change the decision-maker’s view.’

26                  It can hardly be said, the appellant submitted, that a fair-minded observer would think the Tribunal’s assessment of the appellant’s commitment to Christianity is rational and represents a reasonable response to the totality of the questioning and of the material before the Tribunal: Reference was made to what was said by Allsop J in NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 214 ALR 264 at [111] and [112].

27                  Both in written and oral submissions, I was referred by the appellant to numerous parts of the transcript of his examination before the Tribunal which are said to exemplify the various complaints in [23] supra relied on for the ground of reasonable apprehension of bias.  There is only one which causes me to doubt whether what is here involved is anything more than a vigorous testing of evidence.  In response to an answer the appellant gave, the Tribunal Member said:  ‘I’m afraid you’re still a Muslim’.  I find that accusation quite astonishing.  However, it needs to be read in context.  It was made in the following context:

‘TRIBUNAL MEMBER:          … Heaven, what about heaven?

THE INTERPRETER:… very very … place.  This is made by Allah, those people who do good things in the world they will go there and everything is very good there.

TRIBUNAL MEMBERS;         What about people who do bad things in the world, can they go to heaven?

THE INTERPRETER:             No, they do not go if they do bad things.

TRIBUNAL MEMBER:           I’m afraid you’re still a Muslim.  No, those answers are not very reassuring.  Do you want to think about that a bit more?

THE INTERPRETER:;            If those people who involved with the bad activities, if they repent and pray to Jesus Christ for their activities some possibility they might go.

TRIBUNAL MEMBER:           Good, that’s the right answer.’

28                  While not condoning what was a totally uncalled for accusation, on its own and taken in the context outlined, I do not think a fair-minded lay observer might reasonably apprehend that the Tribunal might not bring an impartial mind to the resolution of the issue before it.

29                  Prior to the passage quoted in [24] supra, the High Court in Re Refugee Review Tribunal; Ex parte H said at [27] – [30]:

‘[27]    The test for apprehended bias in relation to curial proceedings is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided.  That formulation owes much to the fact that court proceedings are held in public. There is some incongruity in formulating a test in terms of “a fair-minded lay observer” when, as is the case with the tribunal, proceedings are held in private.

[28]     Perhaps it would be better, in the case of administrative proceedings held in private, to formulate the test for apprehended bias by reference to a hypothetical fair-minded lay person who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias. Whether or not that be the appropriate formulation, there is, in our view, no reason to depart from the objective test of possibility, as distinct from probability, as to what will be done or what might have been done. To do otherwise, would be to risk confusion of apprehended bias with actual bias by requiring substantially the same proof.

[29]     Though the test in administrative proceedings, as in curial proceedings, is, in our view, one of objective possibility, the non-curial nature of the body or tribunal in question and the different character of the proceedings must, as already indicated, be taken into account. In the present case, a significant difference between curial proceedings and the proceedings of the tribunal is that the former are adversarial and the parties are usually legally represented, whereas the latter are inquisitorial in nature and the parties are not represented.

[30]     Where, as in the present case, credibility is in issue, the person conducting inquisitorial proceedings will necessarily have to test the evidence presented — often vigorously. Moreover, the need to ensure that the person who will be affected by the decision is accorded procedural fairness will often require that he or she be plainly confronted with matters which bear adversely on his or her credit or which bring his or her account into question. Similar questions by a judge in curial proceedings in which the parties are legally represented may more readily give rise to an apprehension of bias than in the case of inquisitorial proceedings.

30                  I am not persuaded that the Tribunal Member’s vigorous testing of the appellant’s evidence and frank exposure of its weaknesses would result in the appellant being so overborne or intimidated that a fair-minded lay observer or a properly informed lay person might infer that there is no evidence that the appellant can give which can change the Tribunal Member’s view.

31                  I am fortified in this view by what appears to me to be the measured and balanced findings the Tribunal ultimately made in relation to such matters.  At [49] of its reasons, the Tribunal said:

‘The Tribunal accepts as credible the applicant’s claim to be a recent convert to Christianity.  He showed in his oral testimony a convincing though incomplete acquaintance with key aspects of Christianity and a continuing interest in learning more about Christianity.  He provided documents to the Tribunal supporting his claims to have been involved with the Baptist church in Bangladesh.  He demonstrated curiosity in discussion at hearing about Christian beliefs and parts of the New Testament.  He did not seem to the Tribunal to have properly grasped some of the essentials of Christianity, including aspects that distinguish it from Islam.  The Tribunal recognises that this does not conclusively establish that the applicant is not genuinely Christian, religion being a matter of faith and not necessarily of intellectual attainment.’

32                  It is true that the Tribunal, at [50], went on to say that it was not ‘…satisfied that the applicant has a deep or unequivocal commitment to Christianity or will remain a Christian for the rest of his life as he has claimed ...’.  It gave various reasons for this – including his attendance record at his Baptist church in Bangladesh from the time of his conversion to his departure for Australia – twice a month or less; his lack of regular attendance in Australia albeit due (the appellant said) to pressure of work and family commitments; and the lack of any documentation or supporting material attesting to his participation in any church activity in Australia.

33                  In my view, having regard to these matters, it was open to the Tribunal to find as it did.  The fact that I or someone else might not, on the basis of these matters, have come to the same conclusion is not to the point.  The real point that the Tribunal was making lies in the last sentence of [50] of its reasons:

‘On the basis of his oral evidence the Tribunal finds that this aspect of the applicant’s testimony indicates that he is a somewhat uncommitted Christian, unlikely to attract the opposition referred to in the independent country information cited above to proselytising and conversion efforts by Christian missionaries and adherents in Bangladesh.’

34                  These findings when read with the transcript of the appellant’s evidence do not support a conclusion that the Tribunal’s decision is infected with legal error, namely that a properly informed lay person might infer that there is no evidence that the appellant could give which could change the Tribunal Member’s view.  This ground of appeal cannot be sustained.

Other Grounds

35                  The appellant relies on the other grounds pleaded at grounds 1 to 5 of the amended notice of appeal as an alternative to ground 6.

Ground 1

36                  This ground asserts it was not reasonably open to the Tribunal to make a finding that there was effective protection available to the appellant.  However, the finding made by the Tribunal was explicitly based on country information as to the Bangladeshi government’s commitment to maintaining a secular Bangladesh.  It matters not that some of the country information before the Tribunal (namely, that itemised in particular (c) to ground 2 of the amended notice of appeal) might support a contrary conclusion.  It was for the Tribunal, as part of its fact-finding function, to determine what weight to give to the country information before it: NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11].

37                  Moreover, the finding as to effective state protection was in any event an alternative ground for rejecting the appellant’s claim to have a well-founded fear of persecution.  The primary basis for rejecting the appellant’s claim was that the Tribunal did not accept as plausible the appellant’s claims to have been subjected to violence, destruction of property and death threats arising from his interest in Christianity. 

38                  This ground cannot be sustained.

 Ground 2

39                  This ground asserts there was no basis for the Tribunal to find that the threats in the three letters submitted by the appellant would not be carried out.  The Tribunal did not find that the threats in the letters would not be carried out; the finding made was that ‘[t]he Tribunal is not … satisfied that the threats in those letters would be carried out’.  There is a significant difference.  The Tribunal saw the threats in the letters in terms that ‘they may more accurately be seen as part of the community pressure on Muslims who convert to Christianity’.  That was a finding of fact that was entirely open on the matters referred to and the findings made by the Tribunal in the same paragraph ([54]) immediately preceding the assailed finding.  That part of ground 2 has no substance.

40                  This ground also appears to challenge the finding that the appellant could have escaped persecution by remaining in India.  Two things can be said about this part of ground 2.  The particular finding was not as wide as the ground suggests.  The finding was (at [57]):

‘The Tribunal considered that the applicant’s claim to have travelled to India (with his wife) in late 2002 to escape persecution is unconvincing: the Tribunal finds it more likely that the couple went to India for other reasons, such as business or tourism.  The applicant explains their return to Bangladesh by saying he found the situation worse in India than in Bangladesh.  Whatever the relative situation for the Christian communities in India and in Bangladesh, the Tribunal considers that the applicant would have been able to escape the particular consequences he claims in his own case of his conversion, such as family and community ostracism and disadvantage in his employment, by remaining in India.  His return to Bangladesh in late 2002 undermines the credibility of his claim to have suffered significant harm or mistreatment following his conversion and baptism in February and August 2002 in Bangladesh or to hold a genuine fear of persecution on return in the conditions applying now and in the reasonably-foreseeable future.  The Tribunal does not accept this part of his testimony as adding support to his claim that he or his wife or child would be subject to Convention persecution if they now return to Bangladesh.’

Second, it is a finding which is naturally open on the appellant’s claim of persecution from his family, community and those with whom he works.  There was, in my view, undoubtedly a basis for the finding as it appears in the Tribunal’s reasons at [57], if not in terms of ground 2 of the appellant’s amended notice of appeal.

Ground 3

41                  This ground challenges the Tribunal’s finding that the appellant could have escaped the particular consequences he claimed by remaining in India, on the basis that there was no finding as to whether the appellant had a legally enforceable right to enter and reside in India and as to whether the appellant had effective protection in India.

42                  This ground of appeal misunderstands the context in which the Tribunal found that the appellant could have escaped the consequences he claimed in India.  In making that finding, the Tribunal was not invoking s 36(3) of the Act.  Rather, it was explaining why it considered to be unconvincing the appellant’s claim to have travelled to India in late 2002 to escape persecution.  In those circumstances, there was no need for the Tribunal to make any finding as to whether the appellant had a right to enter into and reside in India, or whether effective state protection was available to him there.

43                  This ground was not relied on before his Honour below and it is difficult to comprehend any error on the part of his Honour.  In any event, for the reason mentioned, the ground cannot be sustained.

Ground 4

44                  This ground alleges jurisdictional error on the part of the Tribunal by not conducting its review task in accordance with s 424A of the Act.  Several instances of failure to comply are relied on.  Again this ground was not relied on before his Honour below and it is difficult to comprehend any error on the part of his Honour.

Particulars (a) – (c)   

45                  These particulars identify the ‘information’ for the purposes of s 424A as being: ‘that the [appellant] could have escaped perceived persecution by remaining in India’.  They go on to assert that the appellant did not give this information to the Tribunal, which I take to be a reference to subs 424A(3)(b).  It is then said that what the appellant in fact told the Tribunal was that he had travelled to India to escape persecution in Bangladesh but returned because he found the situation worse in India.  The particulars conclude with the assertion that the information was part of the reason for affirming the decision under review and that, therefore, it was incumbent on the Tribunal to undertake the tasks set out in s 424A(1)(a)-(c).

46                  I have set out the Tribunal’s findings at [40].  In the third sentence of that extract the Tribunal comments upon what it saw as the localised nature of the acts of persecution upon which the appellant based his claim.  In the Tribunal’s view the appellant would necessarily avoid those localised acts by being in India, whether or not the appellant was correct when he said that the situation was worse there.

47                  The appellant misconceives the Tribunal’s statement as involving information as distinct from the thought processes of the Tribunal.  Information refers to ‘knowledge of relevant facts or circumstances communicated to or received by the Tribunal’.  It does not encompass the Tribunal’s ‘subjective appraisals, thought processes or determinations’: VAF v Minister for Immigration & Multicultural Affairs (2004) 206 ALR 471 at [24] per Finn and Stone JJ. The characterisation of the persecutory acts as localised and the corollary to that proposition, namely that they would not be performed when the appellant was not in that location were the Tribunal’s thought processes, not information.  Section 424A did not apply to them.

48                  The Minister appeared to assume that information was involved but submitted that the information identified in these particulars was not the reason or a part of the reason for affirming the decision to refuse to grant the appellant a protection visa.  Of [57] of the Tribunal’s reason it was said:

‘This is no more than a finding that the information relating to the appellant’s visit to India did not satisfy the Tribunal, to the requisite level, that the appellant feared persecution on Convention related grounds.  It does not transform the information into the reason or part of the reason for the decision: SCIA v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 238 per Allsop J at [12]; SZEZI v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1195 per Allsop J at [29].’

49                  On an analysis of the Tribunal’s reasoning process it appears that two of the reasons that the Tribunal did not reach the relevant state of satisfaction were: (1) its rejection of the appellant’s claim that he had travelled to India to escape persecution; (2) the tendency of the evidence of his return seen in light of the localised nature of the persecution he claimed to have suffered to undermine his claim to have suffered it at all.  There were other reasons why the Tribunal was not satisfied that the appellants would be subject to Convention persecution if they returned to Bangladesh.  But the question is whether the information was a part, that is any part, of the reasoning process leading up to the Tribunal’s failure to reach that requisite state of satisfaction:  see SZEEU v Minister for Immigration (2006) 150 FCR 214 at [215] – [216] per Allsop J; [164] – [165] per Weinberg J.  As Weinberg J said in that case (at [164]):

‘Although the Tribunal dealt with the matter as though it simply bolstered a conclusion that it had already arrived at, rather than as an element in the decision-making process, it does not follow that it did not play “a part” in its reasons for decision.’

50                  The authorities to which the Minister refers are distinguishable.  In both cases the appellant had not attended the hearing before the Tribunal: SZEZI at [5]; SCIA at [5].  In each case the Tribunal proceeded to determine the applications upon the material before it, which included the respective protection visa applications: SZEZI at [7]; SCIA at [6].  In SZEZI Allsop J raised with counsel for the Minister the question of whether there had been a breach of s 424A in the circumstances.  His Honour answered that question at [29]:

‘On one view, it might be said that since the only information that was before the Tribunal about the appellant’s circumstances was information not withdrawn from the operation of s 424A(1) by s 424A(3)(b), it must be that that information was the reason or part of the reason for the decision.  That is too simplistic an analysis.  In SZECF [(2005) 89 ALD 242] I discussed the purpose of s 424A.  Its operation is to be understood conformably with that purpose.  Whilst in some cases an “unbundling” is necessary in order, sensibly, to apply s 424A to the expressed reasons of the Tribunal, here, the reason for the decision is plain.  The Tribunal, having read all the material and having evaluated its content and weight, was unable to reach a specified mental state.  It was not satisfied that the appellant had a well-founded fear because of subjectively perceived inadequacies in the information.  The reason for the decision was simply (and no more than) the evaluative conclusion founded on the perceived inadequacy of the information, in the sense of an absence of detail and extrinsic explanation which had been invited.  It would be an inadequate and misleading statement to say that the information was the reason or part of the reason for the decision.  It was the lack of the requested further assistance and explanation that was the reason.’

51                  In SZCIA his Honour said (at [12]):

‘In my view the reason for the decision was, and was only, that the Tribunal having read all the material and having evaluated its content and weight was unable to reach a specified mental state.  The reason or the decision was simply, and no more than, the absence of material which it required to reach a state of satisfaction, no findings of fact remain [sic: were made].  The Tribunal concluded that on the material the absence of information was such that it was not able to reach the requisite state of satisfaction.’

52                  His Honour then applied the comments he had made in SZEZI.

53                  Allsop J was dealing with a very different situation in both of those cases.  There the Tribunal’s questions about the applicants’ claims remained unanswered by virtue of their respective failures to attend the hearing.  Here the questions were answered.  The Tribunal evaluated those answers and, relevantly, rejected them.  Moreover, in SZCIA his Honour expressed the view that the reasoning in SZEZI was in conformity with the approach of the Court in SZEEU: at [13] – ]14].    I have referred to and applied that approach above.

54                  The suggestion that SZCIA and SZEZI mandate a different approach cannot be sustained and the Minister’s submission should be rejected.

Particular (d)

55                  This particular refers to information that ‘because the appellant’s daughter’s name is “widely used in Bangladesh ... and appears to have Koranic origin” the appellant will unlikely experience difficulties upon refoulment’.  This particular mischaracterises the context in which the Tribunal referred to the daughter’s name.  It is apparent that the point made, was not that by reason of the child’s name, the appellant was unlikely to experience difficulties upon refoulment; it was that the failure to choose a Christian name cast doubt on the claim to have converted to Christianity.

56                  Moreover, if the relevant information for the purposes of s 424A of the Act is the fact that the daughter’s name was one widely used in Bangladesh and had a Koranic origin, this is information falling within the exception in s 424A(3)(a) with the result that the Tribunal was not required to give any particulars in writing in respect of it.  If the information is the fact that the use of such a name casts doubt on the claim to a religious conversion, this is simply a conclusion based on the evidence before the Tribunal and therefore is not ‘information’ within s 424A: VAF at [24] per Finn and Stone JJ.

Particular (e)   

57                  This refers to information that ‘the Tribunal doubted the veracity of the appellant’s claim that his wife is slowly learning about Christianity because the appellant did not give his daughter a recognisably Christian name’.  This is likewise a conclusion based on the evidence before the Tribunal and is not caught by s 424A: VAF at [24] per Finn and Stone JJ.

Particulars (f) and (g) 

58                  This alleged contravention of s 424A is said to arise from inferences drawn by the Tribunal as to the omission, in statements by fellow Christians who provided written material in support of the appellant’s application, of any reference to their suffering persecution themselves.  The inference drawn is that it would be possible for the appellant similarly to avoid harm in Bangladesh.  The short answer is that neither the Tribunal’s observation as to the existence of such an omission, nor the inference drawn from it, is ‘information’ for the purposes of s 424A.  ‘Information’ in that section does not encompass the Tribunal’s subjective thought processes, or extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions reached by the Tribunal in weighing up the evidence by reference to those matters: VAF at [24] per Finn and Stone JJ.

Ground 5

59                  This ground alleges that the Tribunal constructively failed to exercise jurisdiction by not acting judicially in carrying out its functions under the Act.  A number of examples are particularised; most, if not all, were not relied on below before his Honour and, in those cases, it is difficult to comprehend any error on the part of his Honour.

60                  Particular (b) alleges that the Tribunal ‘selectively used the available independent country information to inappropriately find that the appellant “has given no basis for his belief that he would be mistreated on his return”’.  No particulars of this allegation are given.  Nevertheless, it is for the Tribunal, as part of its fact-finding function, to determine what weight it will give to the country information before it: NAHI at [11].  In the present case, it was open to the Tribunal to find, as it did, that on the basis of the evidence as to guarantees of freedom of religion in Bangladesh and the tolerant practice of their religion by most Bangladeshi Muslims, it was not satisfied the appellant had experienced the rejection he claimed from his family (which it considered to practice a tolerant form of Islam) or that he would face persecution within the meaning of the Convention if he returned to Bangladesh.

61                  Particular (c) alleges there was no evidence for the finding that the appellant would have been able to escape the particular consequences he claimed by remaining in India.  However, the Tribunal clearly specifies the evidence it relies on to make this finding: the fact that the particular consequences the appellant claimed in the case of his own conversion arose from family and community ostracism and disadvantage in employment.  It is clear that the complaint of disadvantage in employment, like the claims of ostracism, related to the treatment the appellant received, or would receive, from those who knew him, namely, his work colleagues.  As such, it was plainly open to the Tribunal to find that by remaining in a place away from his family and community, and work colleagues, the appellant would not face the ostracism and disadvantage he claimed.

62                  Particular (d) alleges that it was irrational to find that the appellant’s conversion was unlikely to attract the opposition referred to in the country information, notwithstanding that the conversion was a fact known to those who knew him.  However, as indicated in respect of particular (b) above, this was a finding open to the Tribunal on the basis of the country information before it.

63                  Particular (e) alleges there was no proper basis for the finding that the appellant would be able to obtain effective assistance from the authorities against extra-­legal treatment under Sharia law.  The finding was explicitly based on country information as to the Bangladeshi government’s commitment to maintaining a secular Bangladesh and, in those circumstances, there is no substance in the argument that the finding was made without proper basis.

64                  Particular (f) appears to make some complaint based on country information to the effect that (i) police were ineffective in upholding law and order and (ii) there were objections and resistance to conversions from Islam to other religions.  The nature of the complaint is not particularised.  It suffices to say, as noted in respect of particular (a) above, that it was for the Tribunal to give what weight it deemed appropriate to the country information before it.

65                  Particular (g) criticises as unreasonable the inference that, by reason of the assistance provided to the appellant by his brother-in-law, it was not the case that his family had rejected him. That is to mischaracterise the material on which the Tribunal relied in drawing the inference that it did.  It is true that the Tribunal noted the inconsistency between the fact that the brother-in-law had assisted the appellant and the appellant’s claim that his family had rejected him.  But it was not that inconsistency alone whichled the Tribunal to conclude that it was not satisfied that the appellant’s family had rejected him.  It is apparent from the context that the Tribunal relied also on the independent country information as to religious tolerance in Bangladesh, which helped it form the view that the appellant’s family practised a tolerant form of Islam.  Having regard to the combination of those matters, it cannot have been unreasonable (in the sense of its being a conclusion that no reasonable decision-maker could have reached) for the Tribunal to hold that the appellant’s family had not rejected him.

66                  Particular (h) criticises the Tribunal as giving excessive weight to a matter of no great importance, being a failure by the appellant to provide ‘further information’ on why he believed he faced a real chance of Convention persecution.  The part of the Tribunal’s reasons to which this criticism refers is not apparent.  In any event, the Tribunal was plainly entitled to observe, as it did, that the evidence provided by the appellant did not contain sufficient detail or supporting information to establish his claim to have suffered persecution at a Convention level.  The Tribunal had earlier pointed out that the appellant had provided no details of specific incidents of harm amounting to Convention discrimination, including in his oral testimony which made only a general reference to having been beaten following his conversion.

67                  Particular (i) alleges that there was no proper basis for the finding that the threats in the three letters submitted by the appellant would not be carried out.  However, the basis for the finding may be seen in what immediately follows it, namely, the comment that the letters may more accurately be seen as part of the community pressure on Muslims who convert to Christianity.  It is apparent that the Tribunal has interpreted the letters consistently with the country information before it relating to the resistance faced by Muslims who convert to Christianity.  That was a course which was open to the Tribunal in the exercise of its fact-finding function.

Conclusion

68                  For the foregoing reasons the appeal must be dismissed with costs.

Associate:

Dated:         1 December 2006