FEDERAL COURT OF AUSTRALIA

SZMSB v Minister for Immigration and Citizenship [2009] FCA 373

Abebe v Commonwealth (1999) 197 CLR 510 

Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12

Minister for Immigration and Multicultural and Indigenous Affairs v VOAO & VOAP [2005] FCAFC 50

 Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59

Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407

SFGB v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 77 ALD 402 [2003] FCAFC 231

SZDTZ v Minister for Immigration & Citizenship [2007] FCA 1824

SZMSB v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 29 of 2009

REEVES J

22 APRIL 2009

DARWIN

THE COURT ORDERS THAT:

1.                  The appeal is dismissed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

REASONS FOR JUDGMENT

INTRODUCTION

1                     This is an appeal against the judgment of Federal Magistrate Cameron delivered on 12 December 2008, which dismissed an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’). The Tribunal’s decision was handed down on 29 July 2008 and affirmed a decision of a delegate of the Minister for Immigration and Citizenship to refuse to grant a protection visa to the appellant.

FACTUAL SUMMARY

2                     The appellant is a citizen of Bangladesh who arrived in Australia, most recently, on 11 November 2007. On 20 December 2007, the appellant lodged an application for a protection visa with the Department of Immigration and Citizenship. A delegate of the first respondent refused the application for the protection visa on 6 March 2008. On 2 April 2008, the appellant applied to the Tribunal for a review of that decision

3                     In his application for a protection visa the appellant claimed that he is a Buddhist, and became a member of the Awami League’s (‘AL’) student wing, the Chattra League, while he was a student in 1998. During 2000 and 2001, he claimed he was the organising secretary, then the elected vice-president and, for a time, the acting president of the Chattra League while he was a student at Uttar Rangunia Degree College.  As a result, he claimed he became well-known to his political opponents. He was also a member of various Buddhist welfare organisations in his home area, the Chittagong Hill Tract (‘CHT’) region of Bangladesh.

4                     After the Bangladesh National Party (‘BNP’) came to power in 2001, discrimination against, and persecution of, Buddhists in Bangladesh increased and the appellant claims he and his family were targeted by BNP activists. Further, the appellant claimed that BNP and Jamaat-e-Islami activists physically assaulted him at a wreath laying ceremony he attended on 16 December 2001. He claimed he received a severe head injury as a consequence. He also claimed that the BNP activists warned him on numerous occasions after this incident, not to have any further involvement in AL politics.

5                     The appellant claimed that on 3 January 2002, his “political opponents” filed a false case against him over the alleged possession of firearms and a warrant was issued for his arrest. As a consequence, he claimed that he had to hide in different parts of Bangladesh.  He claimed he eventually ran out of places to hide and returned to his home area in May 2003.  There he became a Buddhist monk and began to reside in a temple. Although he tried to convince his opponents he was no longer involved in politics, he claimed they threatened to kill him.  He was fearful and moved to another temple in Mahalchori.

6                     On 26 August 2003 a riot broke out in Mahalchori when, so the appellant claimed, the Muslims attacked the Buddhists there. The appellant claimed he organised a public protest against this riot and the “thugs of [the] BNP and Jamat” found out about this. He therefore decided to travel to India for refuge and stayed in a temple in Calcutta for approximately two years. In November 2005 he decided to return to Bangladesh as the Indian government began to flush out illegal immigrants. He found that the political situation had not improved at all. He went back to India in March 2006 for a couple of days to consult his guru and, after returning to Bangladesh for a short period, he left for Thailand in April 2006, where he had managed to become admitted as a student at a religious school. The appellant was not allowed to stay indefinitely in Thailand and decided to apply for protection in Australia. He claimed his life would be at risk if he were to return to Bangladesh and he would be persecuted there because of his political and community profile.

7                     The appellant attended a hearing before the Tribunal on 10 June 2008.

THE TRIBUNAL’S DECISION

8                     The Tribunal accepted many aspects of the appellant’s claims, including: that he is a Buddhist; that he lived as a Buddhist monk in Bangladesh and other countries and he was for a time a Buddhist scholar; that he lived with his family and, for a time, at a Buddhist temple, in the CHT region of Bangladesh; that the CHT region had a significant population of religious minorities including Buddhists, Hindus and Christians;  that these minorities had established the Bangladesh/Buddhist/Hindu/Christian Unity Council (‘the Unity Council’) which was a viable and operational body in  socio-political life there; that the CHT region had also been the focus of disputes over land between traditional Buddhist families and predominantly Muslim migrants from other parts of Bangladesh; that the Abbot, Ganojyoti Mohasthobir, was murdered in April 2002 and this led to Buddhists feeling less secure in the CHT region - the Tribunal did not accept the appellant’s claim that the BNP was responsible for the Abbot’s death - and that residents of a dormitory for minority students were attacked and beaten in a raid in January 1996.

9                     However, the Tribunal was not satisfied that the appellant faced a real chance of persecution anywhere in Bangladesh by reason of his religion, finding his claims in this regard to be “unimpressive”.  In reaching this conclusion, the Tribunal pointed to the fact that the appellant’s family continued to live in the CHT region, without experiencing significant disruptions to their lives due to their practice of Buddhism, even though his father was also active in the Unity Council.  The Tribunal also pointed to the appellant’s evidence that his family believed that he and his brother (who is also a Buddhist monk), would “enjoy a significant degree of safety, respect and protection as monks” in the CHT region.  The Tribunal also considered it was significant that when it queried the appellant about the serious harm he claimed to suffer by reason of his religion, he was digressive and vague to the point of appearing evasive.  Accordingly, the Tribunal concluded that the information provided by the appellant did not provide evidence of persecution, or of treatment indicative of a real chance of persecution, by reason of his religion.

10                  In relation to the appellant’s claims to fear persecution on account of his political opinions, the Tribunal was also willing to accept many aspects of the appellant’s claims, including: that he attended the Uttar Rangunia Degree College up to the end of 2001 and was active in that college’s Chapter of the Chattra League; that he was elected to the office of vice-president and subsequently became the acting-president of that Chapter of the Chattra League; that he was an AL supporter and did not welcome the current political situation in Bangladesh and the treatment of AL figures there; that he had some knowledge of the assassination of Sheikh Mujibur Rahman and that he had been involved in a wreath laying ceremony on 16 December 2001, as a part of the Chattra League’s activities, and that he was injured in the conflict that followed, for which he received some medical treatment. 

11                  However, in relation to the appellant’s claims about political persecution the Tribunal concluded that:

“On the evidence before it … the Tribunal [was of] the view that the [appellant’s] past political activities were insignificant, and [of] the view that for all the relevant purposes he is no more than one of millions of voters awaiting the election that the caretaker government has renewed its commitment to allow, [accordingly] the Tribunal is not satisfied that the [appellant] would face a real chance of persecution at the hands of the current caretaker regime and/or its instruments, such as the military, now or in the reasonably foreseeable future.”

12                  In reaching this conclusion, the Tribunal relied, among other things, on its assessment that the appellant’s evidence about his political activities disclosed a lack of detailed awareness of the political system in Bangladesh, and his evidence was variously “somewhat implausible”, “vague”, “digressive”, “evasive”, “unimpressive” and “inaccurate”.  Nonetheless, the Tribunal did consider whether the appellant had been active in politics in the past and that he may have ended his involvement due to harassment and a fear of persecution. However, it rejected that possibility concluding that the appellant’s evidence of such harassment was dependent on “non-factual and/or far-fetched political conditions”. In relation to the incident at the wreath laying ceremony on 16 December 2001, the Tribunal concluded that it was “localised to a specific occasion” and did not involve the appellant being targeted as an individual, or that it culminated in threats being made to him as an individual.  Indeed, the Tribunal dismissed as “a fanciful concoction” the appellant’s claims that BNP activists had visited his family home to make such threats every month since that incident in late 2001.  The Tribunal also rejected the appellant’s “unsupported claims” about the harm that had befallen other people who were involved in the Chattra League at the same time as he was. It also gave “no weight” to the appellant’s claims about the BNP having filed a false case against him over alleged possession of firearms because it did not accept that the appellant was an “individual foe of the BNP” as he claimed. Further, the Tribunalnoted that the appellant was able to travel to and from India and Thailand, on a number of occasions after 2002 including in November 2005, without showing any concerns about being arrested on an outstanding warrant. The Tribunal also noted that the appellant travelled from Thailand to Australia on two occasions in 2006 without making an application for a protection visa, notwithstanding the fact that he claimed he was fearful of persecution in Bangladesh at this time.  Finally, the Tribunal rejected the appellant’s claim that when he returned to Bangladesh in 2005, the country was in election mode and the political situation had not improved, because this was contradicted by country information that the election did not occur until later in 2006. 

13                  As to the appellant’s claims that his difficulties in giving dates and details at the Tribunal hearing was caused by the head injury he suffered on 16 December 2001, while the Tribunal was willing to accept he had suffered an injury, it did not accept the injury was a significant injury. Moreover it concluded that whatever injury he had sustained, did not affect his ability to give evidence observing that:

In any event, having acknowledged that he provided many incorrect and misleading dates, the Applicant did not correct any of them, say, by providing a plausible and consistent sequence of causes and effects to “correct” his errors regarding dates.  In addition, the Applicant did not even remain committed to “trauma” as a reason for his errors, because he later said these arose due to his having to rush the drafting of his protection visa application and due to his being nervous about his case. 

14                  In general, the Tribunal found the appellant’s evidence regarding his fear of persecution for religious and political reasons in Bangladesh to be unimpressive and accordingly it found the appellant to be “overwhelmingly an unreliable witness”.  The Tribunal ultimately concluded it: “is not satisfied that the Applicant is a person to whom Australia has protection obligations under the Refugees Convention.  Therefore the Applicant does not satisfy the criterion set out in s 36(2)(a) for a protection visa.” 

THE FEDERAL MAGISTRATE’S DECISION

15                  In his amended application for judicial review filed in the Federal Magistrates Court on 29 October 2008, the appellant contended that:

1.                  The Tribunal failed to accord procedural fairness.

2.                  The Tribunal failed to exercise the power conferred on the Tribunal under s.427(1)(d) of the Migration Act.

3.         The Tribunal member failed to consider the comments by Lee J, in WAHP v         from Karanakaran v Secretary for the Home Department [2000] 3 ALL ER          449 at 469-470 where Brooke L’J’ with whom Robert Walker L.J. concurred:

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 sometimes be somewhat fragile evidence, that they probably did not occur.

16                  The first ground of appeal was particularised in three parts as follows:

(a)    The Tribunal erred in law amounting to jurisdictional error in finding that the appellant’s past political activities were insignificant….the Tribunal is not satisfied that the [appellant] would face a real chance of persecution at the hands of the current caretaker regime and/or its instruments, such as the military, now or in the [reasonably] foreseeable future;

(b)    The Tribunal failed to find that the applicant faced and continued to face significant discrimination is an error in law amounting to jurisdictional error;

(c)    The Tribunal failed to perform the duty imposed on it by the Migration Act (s 424(1)).

17                  In relation to the first and second particulars (above), his Honour found that the Tribunal’s factual findings as to the level of the appellant’s political involvement and its ultimate conclusion on that issue were findings of fact that were open to it and they therefore disclosed no want of procedural fairness, as alleged by the appellant. In relation to the breach of s 424(1) alleged in the third particular (above), his Honour held that this was not made out noting the appellant had not identified what information the Tribunal had obtained and failed to have regard to, and nor was it apparent from the Tribunal’s Decision Record that any information, other than independent country information, had been obtained by the Tribunal.

18                  Ground two of the amended application was particularised as follows:

The Tribunal was put on notice by his Solicitor and Migration Agent Kerry Murphy that the applicant was suffering from Post Traumatic Stress Disorder (PTSD) and severely traumatised by his experiences and the assaults, injuries and the killing of the Buddhist Abbot in his area and 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.

19                  The Federal Magistrate noted that, contrary to this allegation, rather than asserting that the appellant suffered from PTSD, the letter from the appellant’s solicitor dated 30 June 2008, merely stated: “I am of the view that [the appellant’s] tendency to rush answers and appear to not comprehend the question are consistent with a traumatic experience such as the assault he stated occurred to him in late 2001”. Further, his Honour observed, no request was made by the appellant or his solicitor that he be medically examined with a view to determining whether his answers were affected by the injury and experiences he alleged he had suffered. Accordingly, his Honour found that there was nothing to support this allegation or to suggest that an occasion arose for the Tribunal to consider exercising its discretion under s 427(1)(d) of the Migration Act 1958 (Cth) (‘the Act’).

20                  In relation to ground three of the amended application, his Honour noted that the appellant had not identified what matters the Tribunal may have excluded from its consideration on the basis that “they probably did not occur”, to apply the formula used in Karanakaran’s case. Rather, the Tribunal appeared to have considered every aspect of the appellant’s detailed allegations and to have reached a considered conclusion after having done so. In the absence of proper particulars of this allegation, his Honour found this ground was not made out.

21                  Finally, in dismissing the application for juridical review, the Federal Magistrate also found that none of the appellant’s oral submissions established jurisdictional error, and in regards to the question whether there had been a breach of s 91R(3) of the Act (which was raised by the first respondent), his Honour found that the Tribunal had complied with its obligations under that section.

THE PRESENT APPEAL

22                  On 13 January 2009, the appellant filed a notice of appeal with this Court which claimed, inter alia, that:

Grounds 1 and 3

            The Federal Magistrate should have found that the Tribunal failed to exercise                   the power conferred on the Tribunal under section 427(1)(d) of the Migration                       Act 1958 (Cth).

Particulars

            The Tribunal was put on notice by his Solicitor and Migration Agent         Kerry Murphy that the applicant was suffering from Post Traumatic             Stress Disorder (PTSD) and severely traumatised by his experience and the     assaults, injuries and the killing of the Buddhist Abbott in his area and it was unfair for the Tribunal to put the obligation on the applicant at the hearing to identify all of his claims, with out exercising the power conferred on the Tribunal under s.427(1)(d) of the Migration Act.

Ground 2

The Federal Magistrate should have found that the Tribunal failed to afford procedural fairness to the appellant in refusing him a protection visa.

Particulars

(a)                The Tribunal erred in law amounting to jurisdictional error in finding that the applicant’s past political activities were insignificant … … … the Tribunal is not satisfied that the applicant would face a real chance of persecution at the hands of the current caretaker regime and/or its instruments, such as the military, now or in the reasonably foreseeable future;

(b)                The Tribunal failed to find that the applicant faced and continued to face significant discrimination is an error in law amounting to jurisdictional error;

(c)                The Tribunal failed to perform the duty imposed on it by the Migration Act (section 424(1)).

Ground 4

The Federal Magistrate should have found that the Tribunal failed to consider       the comments by Lee J, in WAHP v from Karanakaran v Secretary for the          Home Department[2000] 3 ALL ER 449 at 469-470 where Brooke L’J’ with            whom Robert Walker L.J. concurred:

“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 sometimes be somewhat fragile evidence, that they probably did not occur.”

23                  It will be immediately apparent that, with the addition of the words ‘the Federal Magistrate should have found’, these grounds and the particulars provided in support of them, are almost identical to the grounds of judicial review filed in the Federal Magistrates Court.  This, despite the fact that the Federal Magistrate clearly rejected many of them because the appellant had failed to identify in the particulars before him, precisely what he was complaining about (see [17] and [20] above). 

24                  At the hearing of this appeal on 25 February 2009, the appellant appeared in person, unrepresented, but assisted by an interpreter. Ms Francois appeared for the first respondent.

25                  The appellant did not file an outline of written submissions.  In his oral submissions, the appellant began by attempting to rely on recent events in Bangladesh, including two attacks he claimed had been made.  I indicated to him that this material was not relevant to the present appeal and I could not take it into account.  In addition, the appellant claimed that the Tribunal had not considered the evidence of the scar on his head, which he said was “the strongest evidence”.  He concluded by saying he could not go back to Bangladesh because of the persecution by the BNP and the “torture” that was going on there.

26                  Ms Francois had filed an outline of written submissions on behalf of the first respondent. In it she submitted, in summary, as follows:

1.                  The grounds of appeal before this court are the same as the grounds of judicial review before the Federal Magistrate

2.                  In relation to grounds one and three, the Federal Magistrate was correct in concluding that the appellant’s solicitor had not alleged that the appellant was suffering from PTSD, or was severely traumatised, or should be medically examined.  All the appellant’s solicitor had stated was that “I am of the view that [the appellant’s] tendency to rush answers and appear not to comprehend the question are consistent with traumatic experience such as the assault he stated occurred to him in late 2001”. In any event, there was no duty upon the Tribunal to obtain a medical report under s 427(1)(d) of the Act: see Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43] per Gummow and Hayne JJ.

3.                  In relation to ground two, the Federal Magistrate was correct in concluding that the particulars either amounted to an attempt at impermissible merits review, or did not identify any information that the Tribunal was obligated to deal with under s 424 of the Act.  Further, the Federal Magistrate had clearly pointed to this lack of particulars in his decision, yet the appellant had not remedied this omission in his notice of appeal before this Court.

4.                  In relation to ground four, the Federal Magistrate was correct in concluding, first, that the appellant had not identified the particular matters about which he was complaining and, secondly, that in any event, the Tribunal had properly considered every aspect of the appellant’s claims and reached conclusions about them.

27                  During her oral submissions, I raised with Ms Francois some concerns I had about two aspects of the Tribunal’s decision as follows:

1.                  Whether the Tribunal may have erred insofar as it stated it gave “no weight” to certain evidence in paragraphs 146, 167 and 168 of its decision; and

2.                  Whether there was evidence to support the Tribunal’s adverse credit findings at paragraphs 151 and 173 of its decision.

As a consequence, Ms Francois sought the opportunity to make further supplementary written submissions on these issues. 

28                  In those supplementary written submissions, in relation to the “no weight” issue, Ms Francois submitted that the relevant authorities held that:

1.                  It is not irrational, nor is it an error, for a Tribunal to reject, or give no weight to, corroborative evidence without further analysis or reasons, where it has determined an appellant is fabricating a story, provided that there is cogent evidence to support such adverse findings: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex Parte Applicant S20/2002 (2003) 198 ALR 59 at [12] and [49]; WAGU v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 912 at [34] – [36]; WAJQ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1580 at [21] and see also SZDGC v Minister for Immigration and Citizenship (2008) 105 ALD 25; [2008] FCA 1638 at [23] to [24]).

2.                  The Tribunal does not have to repeat its adverse analysis of evidence given in an earlier part of its decision when it states in its “Findings and Reasons” that it has given no weight to that evidence: SZJJA v Minister for Immigration and Citizenship [2008] FCA 111 at [13].

29                  In relation to paragraph 146 and the Tribunal’s statement that it gave “no weight” to the incident in January 1996 when the residents of a dormitory for minority students were attacked and beaten, Ms Francois submitted that the Tribunal was entitled to reach this conclusion because:

1.                  This evidence was evidence given by the appellant and was not corroborative evidence;

2.                  In any event:

2.1              The incident was an isolated incident that occurred 12 years before and was therefore too remote in time and, further, it was not part of a systematic persecution over a long period of time; and

2.2              The incident was irrelevant, since there was no evidence linking the “minority students” referred to and the groups with which the appellant was involved: either the AL [or presumably the Chattra League] or Buddhists.

30                  In relation to paragraph 167 and the Tribunal’s statement that it gave “no weight” to the appellant’s claim about harm having befallen other people he knew from the Chattra League, the first respondent submitted that the Tribunal was entitled to reject this evidence because:

1.                  This evidence was evidence given by the appellant and was not corroborative evidence; and

2.                  In any event it was based on its conclusion that the appellant’s evidence in support of these claims was “very vaguely” articulated and not supported by any other evidence.

31                  In relation to paragraph 168 and the Tribunal’s statement that it gave no weight to the appellant’s claims about the BNP having filed a false case against him, the first respondent submitted that the Tribunal was entitled to reject this claim, because:

1.                  This evidence was evidence given by the appellant and was not corroborative evidence;

2.                  It gave cogent reasons for rejecting these claims as set out in paragraph 168; including that it did not accept that the appellant was an “individual foe of the BNP” as he claimed and it noted that the appellant was able to travel to and from India and Thailand, on a number of occasions after 2002, including in November 2005, without showing any concerns about being arrested on an outstanding warrant.

32                  In relation to the adverse credit findings issue, the first respondent conceded that, on the authorities, the Tribunal would have committed a jurisdictional error if it had made a finding of fact, or drawn an inference without having any supportive, probative evidence: see Minister for Immigration and Multicultural and Indigenous Affairs v VOAO & VAOP [2005] FCAFC 50 at [5].  However, the first respondent submitted that there was ample evidence to support the Tribunal’s adverse credit findings in paragraphs 151 and 173, as summarised below:

1.                  The conclusion in paragraph 151 was open on the independent country evidence before the Tribunal that there was no evidence of sustained and systemic discrimination or persecution of Buddhists in Bangladesh.  Further, the Tribunal also observed that the appellant’s family continued to live in the CHT region of Bangladesh without experiencing significant disruption in their lives, despite being Buddhists and the appellant’s father being active in the coalition of religious minorities viz the Unity Council.

2.                  The conclusion in paragraph 173 is supported by the evidence and reasons set on in the Tribunal’s decision including the following:

2.1              The appellant cited the wrong dates for the handover by the BNP to the caretaker government in Bangladesh in the context of explaining his overseas travel;

2.2              The appellant cited the wrong dates for when the BNP came to power in Bangladesh;

2.3              The appellant gave evidence inconsistent with the independent country information about when political activity had been banned by the caretaker government in Bangladesh;

2.4              The appellant made claims about the BNP banning political activity and then later, when confronted with the fact of the continued operation of the Awami League, claimed that it was student political activity that had been banned, none of which was supported by the independent country information;

2.5              The appellant claimed to have been visited once a month for 7 years by BNP activists because he was outspoken about BNP “Ministers”, however during this time the BNP were not always in power;

2.6              The appellant gave evidence inconsistent with the independent country information about when the Awami League came to power in relation to his claims about Mr Chowdhury;

2.7              When pressed about his evidence in relation to Mr Chowdhury the appellant changed his evidence and said that Mr Chowdhury had been a Ministerial advisor but could not name which Minister he advised and then simply said “Parliament”;

2.8              The appellant, claimed to be highly political, yet he gave an entirely ignorant answer about the roles of a Minister and a Member of Parliament; and

2.9              When the Tribunal put to him that his lack of knowledge of these political matters was inconsistent with his claim to be highly involved in Bangladesh politics, the appellant said that he “had lost his memory”.

33                  Finally, Ms Francois submitted that the adverse credit findings made by the Tribunal were matters for the Tribunal “par excellence”: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (‘Durairajasingham’) (2000) 168 ALR 407 at [67] per McHugh J.

34                  The appellant’s supplementary written submissions quoted paragraphs 146 and 30 [7] of the Tribunal’s decision and then Grounds 1, 3 and 4 of the notice of appeal before this Court without stating why any of this material demonstrated any error on the part of the Federal Magistrate. However the appellant did make the following new submissions:

1.                  The Tribunal’s adverse credibility findings were purely based on the appellant’s lack of recollection and did not fall within the “poisoned well” situation described in Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at [49].

2.                  The statement at paragraph 173 of the Tribunal’s decision is evidence of a closed mind on the part of the Tribunal to the appellant’s claims and his corroborating evidence.

CONSIDERATION

The grounds of appeal

35                  As I have already observed (see [23] above), the grounds of the appeal to this Court and the particulars provided in support of them are almost identical to the grounds of judicial review before the Federal Magistrate. Having carefully reviewed his reasons for decision, I do not consider the Federal Magistrate committed any error in the way in which he dealt with the almost identical grounds and particulars before him.  It follows, that I consider that none of the grounds of appeal before me is made out. In summary, the Federal Magistrate’s reasons for disposing of the almost identical grounds and particulars before him were as follows:

Grounds 1 and 3 on appeal = Ground 2 on judicial review

1.                  Since there was no allegation made by the appellant’s solicitor that the appellant suffered from PTSD and there is no suggestion in the Tribunal’s decision record that the appellant gave any evidence before the Tribunal that he suffered from PTSD, or raised any question that may have prompted the Tribunal to consider whether it should obtain a medical report in relation to his condition, there was no occasion for the Tribunal to consider whether it should make further enquiries in this regard under s 427(1) of the Act: see [19] above.

Ground 2 on appeal = Ground 1 on judicial review

2.                  The first and second particulars of this ground involved a challenge to the Tribunal’s fact finding role and such a challenge is not open on a judicial review application before the Federal Magistrates Court or, on appeal, before this Court.  The third particular of this ground did not identify any information the Tribunal had excluded from consideration, and nor was any such information apparent from the Tribunal’s decision record. This, despite the fact that the appellant was put on notice by the Federal Magistrate’s decision of the same defect in his grounds of review before his Honour: see [17]above.

Ground 4 on appeal = Ground 3 on judicial review

3.                  The observations above in relation to ground 2 (above) apply equally to this ground. Specifically, the appellant has not identified any matters that were excluded from consideration, notwithstanding notice of the same defect in his grounds of review before the Federal Magistrate, as canvassed in his Honour’s decision: see [20] above.

36                  As to the matters raised by me and addressed in the supplementary submissions, I have concluded that Ms Francois is essentially correct in her supplementary submissions on behalf of the first respondent, for the reasons set out hereunder.

Giving “no weight” to certain evidence

37                  Each of the three incidents where the Tribunal stated it gave “no weight” to particular claims (paragraphs 146, 167 and 168 of the Tribunal’s decision) involved an assessment of evidence given by the appellant. It follows that this evidence did not fall into the category of corroborative evidence of another witness which was given “no weight” because the appellant’s credibility had already been “poisoned beyond redemption”: see Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (‘S20/2002’) (2003) 198 ALR 59 at [49].

38                  Instead, the three incidents involved situations where the tribunal gave “no weight” to the appellant’s claims or evidence for various reasons. It is apparent from the Tribunal’s decision record that the expression “no weight” was used in a different sense in relation to each of these three incidents i.e. irrelevant; do not accept; or dismiss. Further, the Tribunal gave a variety of reasons for giving each claim “no weight”, as articulated in its decision record.

39                  First, the Tribunal appears to have concluded that the 1996 dormitory attack should be given “no weight”, in the sense that it was irrelevant, because it was an isolated incident that occurred 12 years before and did not involve the appellant: paragraph 146.

40                  Secondly, in relation to the appellant’s claims about the harm that had befallen other students he knew who were active in the Chattra League, the Tribunal appears to have given that claim “no weight”, in the sense that it did not accept the claim, because it did not consider the appellant was a reliable witness and because it thought his evidence in support of that claim was vague and unsupported: paragraph 167.

41                  Finally, the Tribunal gave “no weight”, in the sense that it dismissed, the appellant’s claim that the BNP had filed a false case against him because it did not accept that he was “an individual foe” of the BNP and, perhaps more significantly, based upon his own evidence that he had travelled in and out of Bangladesh over the next few years without ever being stopped or arrested by the authorities on these false charges: paragraph 168.

42                  It is apparent that the Tribunal rejected, or dismissed, all of these three claims. In the first case, it rejected the claim essentially because it found it was irrelevant. It rejected the other two claims essentially because it did not believe the appellant, either because it thought his claims were vague and unsupported, or because it thought they were contradicted by the effect of other evidence he gave.

43                  Ordinarily, the weight to be given to evidence is a part of the Tribunal’s fact finding role and that is a matter for the Tribunal: see Abebe v Commonwealth (1999) 197 CLR 510 at [197] per Kirby J and SFGB v Minister for Immigration & Multicultural & Indigenous Affairs (‘SFGB’) (2003) 77 ALD 402; [2003] FCAFC 231 at [20]. Furthermore, it has been emphasised often that credibility is a question for the Tribunal: see, for example, Durairajasingham  at [67] where McHugh J referred to it as “par excellence” a matter for the Tribunal.

44                  Taking into account these matters, I consider that the Tribunal’s treatment of these three claims fell within its fact finding role and, therefore, did not involve any jurisdictional error.

Whether there is evidence to support certain findings

45                  On this issue, the first respondent has conceded that the Tribunal will commit a jurisdictional error where it has made a finding of fact, or has drawn an inference, that is critical to its ultimate conclusion, without any supporting probative evidence. Ms Francois referred me to Minister for Immigration and Multicultural and Indigenous Affairs v VOAO & VOAP [2005] FCAFC 50 at [5] where the first respondent has previously made a similar concession.

46                  This concession is generally consistent with the principles stated by the Full Court that:“[i]f 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 then this may well constitute a jurisdictional error …[or]….[i]f the decision of the Tribunal was ‘Wednesbury’ unreasonable or if the material on which the Tribunal relied was so inadequate that the only inference was that the Tribunal applied the wrong test or was not, in reality, satisfied in respect of the correct test, then there would also be jurisdictional error” see SFGB at [19] referring to S20/2002 at 62, 67, 76, 90 and 91.

47                  The first respondent has also conceded that the Tribunal’s adverse credibility findings at paragraphs [151] and [173] of its decision are critical to its ultimate conclusion. The question then is: whether the Tribunal’s findings at paragraphs [151] and [173] are supported by any probative evidence?

48                  In my view the first thing to be noted about each of these paragraphs is that they clearly provide a concluding summary of the overall effect of the various conclusions reached in the paragraphs immediately preceding them, about the issues to which they relate. Thus it is necessary to turn to those immediately preceding paragraphs to determine what it was that the Tribunal relied on to reach these concluding summaries.

49                  Paragraph [151], sums up the Tribunal’s various conclusions about the appellant’s claims to suffer persecution in Bangladesh for reasons of his religion. The conclusions the Tribunal reached on this aspect of the appellant’s claims and what it was that the Tribunal relied on to reach them, are summarised by myself at [9] above and in Ms Francois’ supplementary submissions at [32 -1] above.

50                  Paragraph [173] is more general in its terms than paragraph [151]. It sums up the Tribunal’s adverse conclusions about the appellant’s credibility based upon its assessment of all the evidence before it. Those conclusions and the evidence relied upon are summarised by myself at [12] above and in Ms Francois’ supplementary submissions at [32 -2] above.

51                  When all this material is considered, I consider it is quite apparent that the Tribunal reached a firm view, for the numerous reasons that it stated in its decision record, based on the evidence and material it referred to, that the appellant was not a credible witness. Since the conclusion in paragraph [173] relates to credibility, I have kept in mind the observations of McHugh J. that credibility is a question for the Tribunal “par excellence”: see Durairajasingham at [67]. I have also taken into account the observations (albeit directed to the rejection of corroborating evidence) in S20/2002 at [11]–[12] per Gleeson CJ, and at [49] per McHugh and Gummow JJ.

52                  So, in summary, I consider that when the whole of the Tribunal’s decision is considered in context, including the Tribunal’s lengthy and detailed consideration of the appellant’s claims and evidence and the three statutory declarations placed before it, it is apparent, in my view, that the Tribunal has clearly identified the evidence and the reasoning process it relied upon to reach its summary conclusions in both paragraphs [151] and [173]. I do not, therefore, consider the Tribunal has committed any jurisdictional error in making these findings.

CONCLUSION

53                  For these reasons, I do not consider that the Federal Magistrate made any error in his review of the Tribunal’s decision and it follows that this appeal must be dismissed.

Associate:

Dated:         22 April 2009