FEDERAL COURT OF AUSTRALIA

SZNKO v Minister for Immigration and Citizenship [2013] FCA 123

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs to be taxed, if not agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

overview

1    The appellant has appealed against the decision of the Federal Magistrates Court refusing judicial review of a decision of the Refugee Review Tribunal (Tribunal) which refused his application for a Protection (Class XA) Visa made under the Migration Act 1958 (Cth) (Act) on the ground that the appellant was a refugee.

2    By the appellant’s amended notice of appeal in this Court, the appellant contended that the primary judge erred, first, in not finding that a finding by the Tribunal, in effect, that he had acted fraudulently in supplying a non-genuine document with his application, was illogical, irrational, capricious and/or unreasonable; and, secondly, by not finding that the Tribunal was required to consider his claims to fear persecution or harm in Bangladesh on a cumulative basis.

3    For the reasons that follow, the Court is not satisfied that the primary judge erred on either of the grounds contended for.

protection visa application

4    By application for a Protection (Class XA) Visa made under the Act the appellant submitted a claim to be a refugee.

5    At the time of making the application in 2008, the appellant had recently arrived in Australia to attend the World Youth Day and disclosed he was in his late 30’s and was a citizen of Bangladesh who spoke both Bengali and English.

6    The appellant stated he was born into a Roman Catholic family in Bangladesh and that his father had worked in a foreign western embassy for many years before he went to Iraq in the late 1970’s where he was employed by a private company. Later his father worked in Kuwait where he was involved in church activities.

7    The appellant also stated that his mother was religious and involved in church activities.

8    The appellant explained that he too was brought up in a formal religious setting in the Roman Catholic church.

9    The appellant explained how in the early 1980’s when he was still in primary school he experienced challenges and what might be described as some degree of intimidation from persons who were Muslim, which group he stated “now and then kidnapped Christian girls from our village and raped them”.

10    The appellant said that he had an aunt, also Roman Catholic, who in order to deal with this intimidation married a Muslim man and converted to the Muslim religion.

11    The appellant went on to describe in some detail periodic violence from the mid-1980’s onwards towards relatives and friends who were Catholic from people who were not. The adversaries in each case according to the appellant were Muslim men.

12    The appellant stated that when he was at high school he had a teacher who was the local Bangladesh Nationalist Party (BNP) president and who asked him to “join in BNP”. He stated that he indicated to the teacher that they did not have student politics in the school. Later on the teacher took him with him to join meetings and “from that time I got interested in politics and started participating different rallies meetings”. At this stage the appellant was about 14 or 15 years of age.

13    According to the appellant he was encouraged by this teacher, as a Christian boy, to tell people in his community to join the BNP and he stated that he “approached many Christian and they join in BNP politics”.

14    When he was about 19 and finished high school, the appellant stated that he “joined in BNP” and then met student political leaders and with them “I joined many rallies, meetings and demonstration against ruling government dictator”.

15    The appellant further stated that at that time, however, the Awami League held power at the college where he attended classes. He stated that an Awami League leader asked him why he was with BNP, especially as he was a Christian and “they don’t do any politics”. He was encouraged to join in the Awami League. He was warned that if he did not heed that warning then he would be shot. The appellant stated that the was advised by a BNP leader not to be scared.

16    The appellant went on to state that following further demonstrations he was again advised or heard that if any Christian students joined in or did any political activities then they would be killed by the Awami League leader.

17    He stated then that in the early 1990’s – this was about three years after the Awami League threats were made – he joined an association called Basthe Shekha as a “field officer”. He said an incident then occurred that resulted in village arbitration, as a result of which his head was shaved as a punishment.

18    He also said this NGO, as he called the association in his application, was one which endeavoured to assist poor students to continue their education. He said that when members of the local village Madrasa, the Muslim religious teaching centre, saw what he was doing in distributing materials to poor students, he was warned to keep away or he would be killed. Soon after he received a letter with that warning as well. By reason of his fear, he then left his village for a period. Not so long after that, the appellant said he went to Kuwait to work.

19    In the late 1990’s the appellant said he returned to Bangladesh and married in his village church. He stated that after a few months he went to Kuwait again for work but then received mail from his family, stating that “Muslim people wanted to kill me they attacked to our home and threatened my wife that not to keep in touch with me”. He understood that his wife then left to live with her parents. As a result he returned to Bangladesh and tried to bring back his wife from his father in law’s but she “denied backing”. Later, however, he resumed living with his wife.

20    Soon after this he said a man, who he named, and who he said was connected with the Awami League “cadre and terrorist group”, came searching for him “several times” and made threats against him.

21    As a result, the appellant said that he left his job in early 2000 and took another, but then soon after decided to leave Bangladesh to go to India, which he did. He stayed with a relative in India. However, soon after he returned to Bangladesh.

22    He said that he then, a few years later, decided again to go to Kuwait where his father was working, but he “didn’t get peace always got information from my country” that the man who had last threatened him was going near to his home and mistreating his wife and looting his home and destroying the crops in the field.

23    The appellant further stated that his father had tried to move the whole family at various times to Kuwait without success.

24    The appellant stated that by reason of news coming from Bangladesh he again felt “compelled” to return to Bangladesh to “save my family”.

25    He said he returned to Bangladesh in 2006. He said the “terrorist group” followed him and “tried to shoot me”. The appellant says he went to the police for shelter but they did not take any real action. Later he joined the Bangladesh Christian Association and appealed for them to help, but “we didn’t get any concrete solution”.

26    The appellant said that in 2008 he went with other members of the Bangladesh Christian Association to protest and demand a fair trial for a “rape and killing case”. He says that when he was in that town the “terrorist group were looked for me to kill”. He says that in Bangladesh he always spent his time in fear and his wife and children’s lives were “in risk”.

27    After that the appellant says that friends in the Bangladesh Christian Association told him about a program which would enable him to apply for a visa to come to Australia for the World Youth Day in 2008.

28    The appellant was apparently successful in obtaining a visa for that purpose. Having arrived in Australia in 2008, he applied for the protection visa.

29    In his application the appellant finally stated that:

I would like to request Australian Government to allow me to stay in Australia so that I can save my life, because in Bangladesh my life is in risk. Muslim Fundamentalists and terrorist groups will kill me if I go back to Bangladesh. As I do such social activities and preaching activities of religion so I was getting threading [sic] to be killed from various Muslims and various Fundamentalists associations. At present there is no permanent govt. in Bangladesh. Even there is any government but no effective protection from the police or other authorities.

30    The appellant provided a range of documentary information in support of his application, including various documents designed to corroborate his involvement in various organisations. They included:

    A document from the BNP certifying that he came from a “respectable Christian family” and “is a very well organizer & hard-working actives member of our party”. This letter was signed by the president of the local branch of the BNP, apparently being the same teacher who had encouraged the appellant’s participation in BNP activities when he was at high school.

    A letter confirming that he was “an active member of the Bangladesh Nationalist Youth Party” or BNYP.

    A letter confirming his membership of the Bangladesh Christian Association “since a long time”.

    A document on the letterhead of an organisation called the Tumilia Union Council. This particular letter, which is the subject of closer examination later, may be referred to as the UC letter. This certified that he was known personally to the author of the letter and that, amongst other things:

He used to preach the Christian religion among the various young generations for long days. For this he falls into the livered eye of forbidden religious organisation JMB in Bangladesh. It is jungi (Terror) organisation who kill men by crackers and are also engaged in demoralizing activities killing themselves at the behind of the administration.

31    The appellant’s application for a protection visa was considered by a delegate of the Minister under the Act. He was invited to and attended an interview in October 2008. By letter dated 24 November 2008 the appellant was advised by the Minister’s delegate that his protection visa application had been refused. The decision record accompanying the letter advising the refusal noted the salient matters, along the lines outlined above, noted material before the decision-maker about the circumstances in Bangladesh, particularly in relation to minorities, noted that the appellant feared harm on account of “his Catholic religion and his political activity” and made a number of findings to the following effect:

    That the appellant was a citizen of Bangladesh.

    That the appellant did not have effective protection in a third country, either under the common law or s 36(3) of the Act.

    That the appellant did not come within Art 33(2) of the 1951 Convention relating to the Status of Refugees and the 1967 Protocol relating to the Status of Refugees (Refugees Convention or Convention) further to its application relative to s 91U of the Act.

    That the harm feared by the appellant would involve serious harm and systematic and discriminatory conduct as outlined in Div 3, subdiv AL of the Act.

    That the appellant does not have a genuine fear of harm and that there is not a real chance of him suffering persecution for a Convention reason in the reasonably foreseeable future. Therefore, the appellant’s fear of persecution as defined under the Refugees Convention was not well founded.

    As a result the appellant was not a person to whom Australia has protection obligations for the grant of a protection visa.

32    In broader terms, the delegate accepted that the appellant was born and raised in a Roman Catholic family and that he belongs to the Christian religion.

33    The delegate further stated that even if one accepted the appellant might have faced some difficulties due to his religion from some Muslim extremists, the agents of harm were not shown to be the authorities in Bangladesh and that there was no indication that the Bangladeshi government pursued a policy of persecutory discrimination against minority Christians.

34    The delegate further observed, by reference to country information, that notwithstanding the adverse country information that religious minorities experienced discrimination and sometimes violence from the Muslim majority in Bangladesh, there was no evidence before the delegate that the authorities in Bangladesh were complicit in these acts.

35    The delegate considered that whilst no State can ensure the complete safety of all of its citizens against all forms of harm or mistreatment, it should be found that in the reasonably foreseeable future the appellant would not be differentially treated by the authorities in Bangladesh, and would continue to have the same level of protection as all other citizens.

36    The delegate was also satisfied that the appellant’s fears related to a localised threat and that relocation within Bangladesh would enable him to avoid any risk of harm. That particular finding appeared to have regard to the fact that the feared harm likely to be perpetrated would emanate from a particular individual.

37    On the basis of this assessment, the delegate was not satisfied that there was a real chance that the appellant would face persecution due to his religion and/or political opinion or any other Convention related reason on his return to Bangladesh in the reasonably foreseeable future.

38    The delegate also dealt with the further issue of the appellant having resided overseas in Kuwait for nearly 10 years of the last 15 years, during which period he returned to Bangladesh for two years twice.

39    After regarding relevant country information the delegate noted that the governments of the countries the appellant had worked in claimed to provide protection against refoulement, that is, the forced return of persons to a country where there is reason to believe they feared persecution. The delegate considered the fact that the appellant resided in Kuwait for nearly seven years in total and said that he had many friends working with him during that time, as well as the fact that the appellant lived in India for three years. The delegate did not accept the appellant’s reasons for not applying for a refugee status in either of those countries and from that concluded also that the appellant did not have fear of persecution at any time.

40    No issue was taken with the authenticity of any of the documents supplied with the application, including the UC letter.

review applications in the refugee review tribunal

41    The appellant then sought review of the delegate’s decision pursuant to the Act in the Tribunal. On 4 March 2009, the Tribunal affirmed the delegate’s decision.

42    The appellant then sought judicial review of the Tribunal’s decision in the Federal Magistrates Court. The Court dismissed the application.

43    Upon further appeal to the Federal Court, however, the decision was set aside and remitted to the Tribunal to be determined according to law. Flick J found that the previously constituted Tribunal had not given to the appellant orally “clear particulars” of information, being a letter provided by another applicant for a protection visa that the Tribunal considered would be the reason or a part of a reason for affirming the decision under review, as a result of which the appellant was not provided with a meaningful opportunity to comment or respond.

44    What had occurred at the first Tribunal hearing was that the Tribunal had in its possession a letter in the exact same terms as the UC letter that the appellant had lodged with his protection visa application, save that the letter in the Tribunal’s possession was on the letterhead of a different union council (the Pubail Union Council) and pertained to another person’s refugee application. When challenged about the UC letter that he had provided with his protection visa application, in light of a similar letter in another person’s protection visa application, the appellant was unable to provide the Tribunal with any information that the Tribunal considered helpful, although the appellant insisted that the content of the UC letter was correct nonetheless. As a matter of procedure, Flick J found the process by which the appellant had been required to respond to the issue of the similarity of the letters and their authenticity, to be deficient as described above.

45    The appellant’s review application to the Tribunal was then considered by a second, differently constituted Tribunal. On further review, the Tribunal had due regard to all materials that had been initially lodged with the protection visa application as well as materials provided to the first Tribunal. It also noted evidence and comment given at the hearing before the first Tribunal, as well as written information given after that hearing. It also noted what was said at the hearing before the second Tribunal on 23 June 2010, where the appellant recounted his circumstances and was asked questions by the Tribunal.

46    In the course of conducting that hearing, as was noted at [54] of the Tribunal’s subsequent decision record, the Tribunal asked the appellant questions about the UC letter. At [55], the Tribunal stated:

55.     When asked how he got this letter, the applicant stated that his brother sent him this letter and this is not really the JMB group, it is the … group, they are the same group. The Tribunal noted that the wording in the letter was quite unique and there is another person who has also made an Application for Protection Visa that has submitted a letter with the exact same wording. It has a different signature and was prepared on a different date in Bangladesh. When asked why there would be two identically worded documents, the applicant stated that his chairman provided him his letter and in Bangladesh there are not translation facilities widely available and he believes that both of the documents were translated from the same place.

56.    The Tribunal explained that the Court found that the previous Tribunal raised this issue, but did not do with sufficient particulars. The Tribunal noted that the intention was to send the letters to the applicant, de-identified, so that he could see the similarity and comment.

47    Subsequent to this hearing, in May 2011, the appellant was formally advised, pursuant to the Act, of the issue with the UC letter and invited to comment or respond. He was advised that:

This information is relevant to the review because it may lead the Tribunal to doubt the genuineness of the letter purportedly issued by the Tumilia Union Council as the translation of the letter is identical to another translation purportedly issued by the Pubail Union Council, signed with a different signature and prepared on a different date in Bangladesh. This may lead the Tribunal to find that false documents have been prepared and presented to assist this application.

It may also lead the Tribunal to doubt your credibility more generally; that is, whether you can be believed. If so, it would lead the Tribunal to doubt your claims as set out in the statement attached to your [protection visa application] … your statutory declaration dated 9 February 2009 and your claims as espoused in your evidence to the Tribunal, including your evidence at hearing on 23 June 2010.

48    The representatives of the appellant subsequently supplied additional documents to the Tribunal. One was on the letterhead of the Tumilia Union Council, but it did not address how the earlier letter apparently provided by the union council had come into being or why it was in the exact same terms as the Pubail Union Council letter.

49    Notwithstanding the provision of the additional documents, the Tribunal affirmed the delegate’s decision.

50    In its decision record, the Tribunal set out, in accordance with the requirements for it to do so under the Act, the claims and the evidence both before the delegate and in the Tribunal. After setting out in detail the case advanced by the appellant, the Tribunal made a number of findings (with reasons) as follows:

    That the appellant was a citizen of Bangladesh.

    In relation to the appellant’s claimed fear of serious harm should he return to Bangladesh because of his political opinion as a supporter of the BNP, and because of his religious faith as a minority Christian in a majority Muslim country, the Tribunal found there were significant inconsistencies in the appellant’s evidence, which he had either not explained or which were not credible.

    The Tribunal was also of the view that the appellant’s actions in returning to Bangladesh from Kuwait in 2006 were inconsistent with his claimed experiences in Bangladesh and his claimed fear of returning.

    The appellant’s credibility was further brought into question through the provision of the UC letter which the Tribunal considered was “non-genuine”.

    For those reasons, the Tribunal did not accept the appellant had provided a truthful account of his experiences in Bangladesh or a genuine account of his fears of returning there.

    In the Tribunal’s view, returning to Bangladesh from Kuwait in 2006 was not consistent with the appellant’s claimed fear of harm, or his claimed fear of harm if he were now to return to Bangladesh or in the reasonably foreseeable future.

    The appellant gave inconsistent evidence as to why he returned in 2006, which the Tribunal explained.

    The appellant gave inconsistent evidence about where he had lived in Bangladesh during the period 2006 to 2008.

    The appellant gave inconsistent evidence about his employment during the period of 2006 to 2008.

    The Tribunal also expressed concern about the submission of documents that were “not genuine” and the details provided in the documents that differed in the assessment of the claimed threat that the appellant and his family faced, which was further explained by the Tribunal.

    That there were inconsistencies in the appellant’s evidence as to the detention of the person who he had consistently claimed had targeted him.

    That the evidence of witnesses called on behalf of the appellant did not overcome or explain the concerns the Tribunal had with the significant inconsistencies in the appellant’s evidence, which had led the Tribunal to doubt that he had given credible evidence about his claimed circumstances in Bangladesh or his claimed fear of harm if he were to return now or in the reasonably foreseeable future.

    There is evidence that some Christians have experienced significant harm in Bangladesh in the past, but the Tribunal did not accept that the appellant has experienced harm in the past because of his religion or for any other Convention reason. This was because the Tribunal did not accept that the appellant had presented a truthful account of his fears of harm and did not accept that there was a real chance he would be affected by such violence on return to Bangladesh, because it did not accept that he had ever been involved in activities in the past that are likely to give rise to such harm. Nor did the Tribunal accept that he will be involved in activities that are likely to give rise to harm if he were to return. That was so even though the Tribunal accepted that the appellant had been active in the Church.

    There was no real chance that the appellant will suffer serious harm by reason of his Catholic faith if he were to return to Bangladesh now or in the reasonably foreseeable future. The Tribunal, in this regard, noted that while some country information indicated incidents in the past, they had “declined significantly” and the vast majority are able to practice their faith freely.

    The Tribunal did not accept that the appellant supported the BNP in the way claimed and did not accept there was any real chance of him suffering harm for that reason should he return to Bangladesh now or in the reasonably foreseeable future. In this regard, the Tribunal did not accept that the appellant had experienced harm on that basis in the past as he had not provided a truthful account of his past experiences or a truthful account of the harm he said he feared if he were to return.

51    As to the relevance of the UC letter, the Tribunal stated at [137]-[139] as follows:

137.     The Tribunal also has significant doubts about documents which the applicant has presented to support his claim. In the case of a letter purportedly issued by the Tumilia Union Council, the translation of this document is identical to another translation in respect of a document purportedly signed with a different signature and prepared on a different date in Bangladesh. As stated in the Tribunal's letter of 4 May 2011, the translation of the letter the applicant submitted is identical in wording to a copy of a translation of a letter from the Pubail Union Council on the file of another applicant for a protection visa, except for the identification of the applicant. The other document is held on Departmental case file CLF2008/124592 at folio 11. The documents are of the same length, and as discussed with the applicant at hearing, have very particular language regarding how the applicant fell under the ‘livid eye’ of the ‘forbidden religious organisation’, the JMB. He offered no explanation for how such remarkably similar documents could be prepared by different sources, other than to assert the genuineness of the document he had presented.

138.    By way of comment, the applicant stated that his brother obtained the document and the content is true and correct. He submitted three further statements purportedly from the Toomilia Union Parishad stating that the applicant was known the author and ‘according to his best knowledge he is a Christian (RC) religious leader. For a long time he was spreading Christian religious messages among youth groups.’ The first letter stated that for this reason the applicant came into the attention of the banned religious group GMB and may be attacked any time along with his family by the GMB. The second letter stated that the author and his union parishad were aware of the statutory declaration date 7 July 2008 but provided no explanation for the identical nature of the documents, and the Tribunal notes with some concern that there is no explanation as to why these two documents are from the Toomilia Union Parishad and not the Tumilia Union Council. In the third document, Mr Abu Bakar states that the certificates in the past are truthful and correct, although he provides no explanation for the identical wording of the two documents in question. In the Tribunal’s view the further documents submitted do not overcome its concerns about the original document.

139.     In the Tribunal’s view, the identical nature of the documents, except for the identification of the applicant by name and relationship, with no explanation, indicates that the document the applicant submitted is not genuine and as stated the further documents submitted do not overcome the Tribunal’s concerns. It does not appear possible to the Tribunal that such identical documentation could be prepared in Bangladesh from different sources, on different dates, by chance, particularly when no explanation has been offered by the applicant as to how this could have happened. In the Tribunal’s view, the preparedness of the applicant to submit documents that are not genuine raises serious doubts about his credibility.

judicial review application

52    The appellant then sought judicial review of the second Tribunal decision in the Federal Magistrates Court. The application was dismissed: SZNKO v Minister for Immigration and Citizenship (No.2) [2012] FMCA 861.

53    Four grounds of appeal were advanced before the Federal Magistrates Court, as follows:

1.     The Second Respondent made jurisdictional error by making decision which was not open to the Second Respondent in that it was irrational, arbitrary, capricious, unreasonable or clearly unjust.

Particulars

(a)     The Second Respondent required applicant to explain a comparison between a letter issued by the Tumilia Union Council concerning the applicant and a letter using similar language submitted by a different protection visa applicant. The applicant could not explain the similar documents but asserted that his document was genuine.

(b)     The Second Respondent stated that the absence of an explanation indicated that the applicant’s document was not genuine.

(c)     The Second Respondent did not explore any rational hypothesis consisted (sic) with the applicants documents being genuine.

2.     In the alternative to 1 above, the Second Respondents made jurisdictional error by effectively requiring the applicant to explain similarities between a document he submitted and another document which had no relation to him.

3.     The Second Respondent made jurisdictional error by adopting an inflexible rule or policy without regard to the merits of the case that a person who leaves a country because of a fear of persecution would not in any circumstances return to that country.

4.     The Second Respondent made jurisdictional error by failing to have regard cumulatively to the claims of the applicant on the grounds of religion and on the ground of political opinion.

54    The Federal Magistrate dealt with grounds 1 and 2 together. His Honour said, at [42], that at first blush he found some aspects of the appellant’s argument attractive. That argument was that it was unreasonable for the Tribunal to expect the appellant to provide an explanation as to why a letter he submitted was identical to another letter, from another organisation in Bangladesh, submitted in another case.

55    His Honour also noted, at [46], that no complaint or argument was put to the Court about the Tribunal’s finding that the document was “non-genuine” in itself (“with all that may infer”). His Honour noted, at [46], that what remained was that the Tribunal’s finding was a finding of fact which, other than for the elements of unreasonableness, was within jurisdiction.

56    At [47], his Honour noted that it was not open to the appellant to mount any attack on the Tribunal in light of the error identified by Flick J in the earlier decision. That is, a breach of s 424A of the Act.

57    Ultimately, his Honour, at [54], found it was open to the Tribunal to come to the conclusion that it did. The absence of an explanation for the remarkable “coincidence” (in the circumstances, the identical text of both letters) was, in his Honour’s view, a matter on which the Tribunal could rely given that the appellant himself provided one of the letters to the Tribunal.

58    In coming to that conclusion, his Honour had regard to what is required to be established before a finding will be made that a decision is irrational or illogical: SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58; (2012) 202 FCR 1 at [15] (Rares J); [84]-[85] (McKerracher J); citing SZMDS v Minister for Immigration and Citizenship [2010] HCA 16; (2010) 240 CLR 611 (SZMDS).

59    His Honour noted, at [55], that following the Tribunal’s s 424A letter raising the Tribunal’s concerns over the UC letter, the appellant himself made inquiries within the organisation that had provided the letter. Someone in that organisation in Bangladesh had purportedly authored and signed the letter. The appellant provided a further letter that simply attested to its genuineness.

60    His Honour observed, at [56], that the perceived insufficiency of that response, given that there was no attempt by that organisation (nor by the appellant) to seek to explain the similarity, brought the Tribunal’s finding within the bounds of one open to it and what was before it, even though minds may have differed.

61    As to ground 3, his Honour noted that in argument the appellant’s oral submission was that the Tribunal constructively failed to exercise jurisdiction as, in making its finding, it failed to consider why the appellant returned to Bangladesh.

62    His Honour considered, at [62], that as pleaded and explained in written submissions the ground could not be made out at a factual level. There was no “policy” inflexibly applied.

63    As to an oral submission that the Tribunal applied a “presumption” (that a person who feared persecution would not return to the country of claimed persecution) without having regard to the appellant’s explanation as to why he did so, his Honour noted that the Tribunal closely considered the evidence and made a finding of fact.

64    His Honour noted, at [69], that the appellant may disagree with the Tribunal’s view of his evidence, but that does not reveal jurisdictional error. It was simply not persuaded by the explanation given.

65    In relation to ground 4, his Honour, at [86], noted that the appellant’s sole basis for fearing persecution on political grounds if he were to return to Bangladesh was his claimed involvement with the BNP, his actions on its behalf and the claimed instances of harm that arose from that. However, the Tribunal had rejected his claim to have been a supporter of the BNP. His Honour noted that it rejected on credibility grounds his claims to past harm because of that involvement. Thus, it was not open to conclude and the Tribunal therefore found that he would not suffer serious harm in the foreseeable future if he were to return to Bangladesh based on any ground of political opinion or involvement. To the extent that in its decision record the Tribunal had stated that:

The Tribunal does not accept that the applicant supported the BNP in the way claimed.

(Emphasis added).

His Honour considered, at [87], that the words “in the way claimed” did not add anything to that analysis. The factual claims made were considered and rejected by the Tribunal. There was no other basis on which the Tribunal needed to consider the claim made.

66    His Honour also agreed with an argument put by the Minister, that the Tribunal was not required to make any finding as to the “cumulative” effect of the appellant’s political and religious claims when plainly it had rejected any basis of future harm based on the claimed political opinion or affiliation.

appeal in this court

67    The appellant now appeals against the decision of the Federal Magistrates Court on two grounds:

1.    His Honour erred in concluding that a finding by the second respondent that a document was fraudulent (based upon the inability of the appellant to provide an explanation for similarities with another document unconnected to the appellant without the second respondent considering any possibilities that did not involve fraud by the appellant) was not illogical, irrationally capricious and/or unreasonable.

2.    His Honour erred by finding that the second respondent was not in the circumstances required to consider the appellant’s claims to fear persecution or harm on a cumulative basis.

Appellant’s submissions

68    As to ground 1, counsel for the appellant notes that the Tribunal considered the UC letter concerning the appellant and also another letter submitted in a different case in the Tribunal authored apparently by the Pubail Union Council. Counsel submits that the Tribunal concluded that because the content of the documents were the same, the appellant’s was “fraudulent”. As a result, the view was taken that his credibility was undermined.

69    The argument is put by counsel that because the appellant could not explain why another document was in the same terms as his it could not be genuine, but that this process of reasoning is flawed and indeed, illogical and irrational.

70    Counsel contends that the error of his Honour in the Court below was to consider that because the conclusion of a rational process might have been that the document was not genuine, the decision must stand.

71    It is contended the fundamental defect of rationality or logic is to assume or conclude that the only conclusion from a failure to provide an explanation is that the appellant had provided a fraudulent document.

72    It is further said that whether or not minds may have “differed” is not relevant where illogicality or irrationality is raised. Minds may differ about whether a decision is “unreasonable” but where there is an irrational decision-making process, there can be no difference to logical or rational minds.

73    It is further contended that if a Tribunal does not exhibit a logical and rational mind in its decision-making processes, the decision will not be saved merely because the same ultimate decision or outcome may have been reached by a rational Tribunal adopting a logical process.

74    Counsel submits that the Tribunal here concluded that because the appellant could not explain why the document about which he had no knowledge was in the same terms as his, he was not to be believed.

75    It is said that where a decision-maker concludes fraud from the failure of a person to provide an explanation over which they had no control and the Tribunal shuts its mind to any other possibility other than fraud by that person, the decision is irrational.

76    The appellant had provided a response and indeed had obtained a further response from the author of the document he had provided.

77    It is submitted that the positive finding akin to fraud was made by an illogical and irrational process.

78    As to ground 2, counsel for the appellant says the appellant made claims based on both religion and political opinion, the latter as a supporter of the BNP. It is submitted on behalf of the appellant that it is implicit in [146] of the Tribunal’s decision that the appellant had supported the BNP, but not “in the way claimed”. At least, the Tribunal did not in terms reject his claims of support for the BNP.

79    Counsel observes that the Tribunal itself noted, at [68], that it was “unusual” for a Catholic to support the BNP in Bangladesh.

80    Thus, it is contended that the issue for the Tribunal was to posit or consider the future. His Honour below concluded, at [80], that the impugned words may “posit that he supported the BNP in some other way” to what he claimed.

81    Counsel submits that once this is accepted then the Tribunal was obliged to consider whether the extent of his likely future or past involvement in the BNP considered cumulatively with his accepted religious claims gave rise to a real chance of persecution in the future.

82    Thus, the statement by his Honour at [86] that the Tribunal “rejected the applicant’s claim to have been a supporter of the BNP” is not factually correct as his Honour himself recognised, at [80]. There was still a requirement to consider whether the holding by the appellant of an unusual combination of religious belief and political opinion gave rise to a real chance of persecution.

The Minister’s submissions

83    On behalf of the Minister it is submitted that in order to succeed on ground 1, the appellant would need to identify a jurisdictional fact and that, having regard to what was said by Crennan and Bell JJ in SZMDS if a fact is not a jurisdictional fact then there is no jurisdictional error, even if the finding of fact is irrational.

84    It is submitted that the relevant jurisdictional fact is the question of the state of mind of the decision-maker: that is, the point at which the Court is concerned with illogicality or irrationality is “the point of satisfaction” pursuant to s 65 of the Act.

85    Accordingly, the question is not whether the Tribunal’s conclusion as to the genuine nature of the document or otherwise is a conclusion at which no rational or logical decision-maker could arrive, but whether “the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence”: SZMDS at [130] (Crennan and Bell JJ).

86    The Minister submits that in other words the question is: on the basis of the evidence before the Tribunal, is the Tribunal’s conclusion that the criteria for the visa were not satisfied, a conclusion at which no rational or logical decision maker could arrive?

87    On behalf of the Minister it is submitted that the conclusion made by the Tribunal that the appellant is not a person in respect of whom Australia has protection obligations was one which a rational or logical decision-maker could reach on the basis of the evidence and, accordingly, it was not illogical, irrational, unreasonable or capricious.

88    As to ground 2, counsel for the Minister notes his Honour’s analysis and finding at [85], [87] and [89] particularly as to the way the words “in the way claimed” are to be construed.

89    It is contended that his Honour was correct when he observed that, however the words are read, when regard is had to the rejection of the totality of the claims advanced on political grounds, there is no basis left on which the Tribunal could apply the relevant forward looking test as to whether the appellant had a well founded fear of harm.

90    It is submitted that while the fact that the particular combination of Catholic faith and support for the BNP might be unusual, it is not in itself sufficient to give rise to a requirement for the Tribunal to consider the “cumulative effect” of these claims. Even if it did, such a requirement could not survive when the Tribunal rejected the appellant’s claims entirely and, in relation to his religious claims, accepted only that he was a Catholic and had been active in the Church.

91    It is also submitted on behalf of the Minister that, if a cumulative finding were required, such an obligation was in any event satisfied by the general findings made towards the end of the Tribunal’s reasons for decision at [147].

ground 1 – the illogicality issue

92    To deal with the ground 1 issue concerning illogical, irrational, capricious or unreasonable decision making it is first necessary to identify the decision the Tribunal was authorised to make.

93    In this regard, the Tribunal exercises the same power that the Minister had at material times to deal with the protection visa application made by the appellant. By s 36(2)(a) of the Act if the Minister “is satisfied” that Australia owes protection obligations under the Convention to the appellant then the Minister “is to grant the visa”. If “not satisfied” then the visa must be refused under s 65(1). See generally SZMDS at [1] (Gummow A-CJ and Kiefel J).

94    In making its decision the Tribunal, by s 430(1) of the Act, is obliged to prepare a written statement setting out its decision, its reasons for the decision, the findings on any material questions of fact and referring to the evidence or any other material on which those findings of fact were based. The obligation is to set out the findings on what the Tribunal considers to be material questions of fact. As Gummow A-CJ and Kiefel J observed in SZMDS, at [33], this obligation focuses upon the thought processes of the decision-maker, and may disclose jurisdictional error.

95    Gummow A-CJ and Kiefel J pointed out in SZMDS, at [34], that many of the leading authorities in the High Court in which administrative decisions have been challenged concern legislative regimes in which there was no counterpart to s 430 of the Act. Their Honours noted that there may be circumstances in which a conclusion is liable to review by the Court and it may be that the inadequacy of material before a decision-maker may support an inference that the decision-maker has applied the wrong test or was not “in reality” satisfied of requisite matters or from the absence of reasons the Court may infer the absence of any good reason.

96    Their Honours, at [35], also noted, however, that the reasons supplied under a provision such as s 430 are meant to inform and are not to be scrutinised in an over-zealous fashion.

97    Their Honours, at [40], adopted what had earlier been said by Gummow and Hayne JJ in Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 78 ALD 224 (SGLB) at [37]-[38], to the effect that the satisfaction of the Minister is a condition precedent to the discharge of the obligation to grant or refuse to grant a protection visa and so is a “jurisdictional fact” or criterion upon which the exercise of that authority is conditioned. The satisfaction of the criterion that the applicant is a non-citizen to whom Australia has the relevant protection obligations may include consideration of factual matters, but the “critical question” in such cases is whether the determination was irrational, illogical and not based on findings or inferences of fact supported by logical grounds. If the decision did display these defects, it would be no answer that the determination was reached in good faith.

98    Gummow A-CJ and Kiefel J remarked, at [40], however, that what is characterised as the “critical question” should not receive an affirmative answer that is “lightly given”.

99    Their Honours, having regard to the reasoning process adopted by the Tribunal, dismissed the Minister’s appeal and upheld the decision of the Federal Court that the Tribunal had fallen into jurisdictional error in reaching its conclusion that the first respondent was not a homosexual (and so not liable to suffer harm in Pakistan and therefore not a person to whom Australia owed protection obligations under the Convention) by an illogical or irrational process of reasoning.

100    In SZMDS, Crennan and Bell JJ noted that the main question arising on the appeal was whether illogicality, irrationality, or lack of articulation in a finding of jurisdictional fact can amount to jurisdictional error. The second question to be determined was whether the findings of fact impugned by the Federal Court were findings of jurisdictional fact.

101    Their Honours, at [96], accepted that, while the principle of limitation that judicial review is limited to jurisdictional error is settled, there is difficulty in drawing a “bright line” between jurisdictional error and error in the exercise of jurisdiction.

102    In the result, their Honours, unlike Gummow A-CJ and Kiefel J, considered the appeal should be allowed on the basis that the Tribunal’s decision was not illogical or irrational in the requisite sense.

103    Their Honours noted, at [119], that whilst the first respondent accepted that not every instance of illogicality or irrationality in reasoning would give rise to jurisdictional error, it was contended that if illogicality or irrationality occurs at the point of satisfaction (for the purposes of s 65 of the Act) then this is a jurisdictional fact and a jurisdictional error is established. Their Honours considered that that submission should be accepted and, in so saying, their Honours rejected the Minister’s counter submission that illogicality or irrationality in fact finding could not without more establish jurisdictional error, noting that it evoked a familiar distinction between errors of law and errors of fact, or between jurisdictional error and error in the exercise of jurisdiction. Their Honours emphasised that the distinction between errors of law and errors of fact is subject to an important qualification in respect of jurisdictional facts.

104    In that regard, their Honours, at [120], stated that an erroneously determined jurisdictional fact may give rise to jurisdictional error. The decision-maker might, for example, have asked the wrong question or may have mistaken or exceeded the statutory specification or prescription in relation to the relevant jurisdictional fact. Equally, entertaining a matter in the absence of a jurisdictional fact will constitute jurisdictional error.

105    Crennan and Bell JJ then went on to discuss the circumstances in which the exercise of a power, where a public officer must be “satisfied” of certain facts, might be considered to disclose jurisdictional error. Their Honours, at [123]-[124], noted the apparent relationship between the ground of unreasonableness and that of irrationality. Their Honours, at [128], observed that if, despite the “undeniable semantic overlap” between “irrationality”, “illogicality” and “unreasonableness”, “Wednesbury unreasonableness” is confined to the exercise of a discretion in circumstances where no reasons are required, then the approach articulated in SGLB by Gummow and Hayne JJ can be seen as occupying somewhat different ground.

106    Ultimately, at [130], their Honours considered that in the context of the Tribunal’s decision under the Act, illogicality or irrationality sufficient to give rise to jurisdictional error must mean that the decision to which the Tribunal came is one at which no rational or logical decision-maker could have arrived on the same evidence. Their Honours stated:

In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is ‘clearly unjust’ or ‘arbitrary’ or ‘capricious’ or ‘unreasonable’ in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.

107    Their Honours then considered, at [131], that what was involved in the case before them was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, their Honours added, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. Their Honours stated:

If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.

108    Their Honours then analysed the probative materials relating to the decision reached and concluded, at [135], that the reasons under consideration were not unintelligible and that there was no absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent’s claims – there was. The Tribunal did not believe the first respondent’s claim that he had engaged in the “practice of homosexuality” in the United Arab Emirates and accordingly it was not satisfied that he feared persecution if he returned to Pakistan. Thus, there was no illogicality or irrationality in the decision made.

109    Heydon J, at [86], came to a similar conclusion to that of Crennan and Bell JJ in this regard.

110    Having regard to the approach taken by Gummow and Hayne JJ in SGLB and Gummow A-CJ and Kiefel J in SZMDS, the “critical question” is whether the determination made by the Minister was irrational, illogical and not based on findings or inferences of fact supported by logical grounds – even if good faith has been demonstrated.

111    On the approach taken by Crennan and Bell JJ in SZMDS, illogicality or irrationality sufficient to give rise to jurisdictional error means that the decision to which the Tribunal came is one at which no rational or logical decision-maker could arrive on the same evidence. Not every lapse in logic will give rise to jurisdictional error. The correct approach is to ask whether it was open to the Tribunal to engage in the process of reasoning in which it did engage and to make the findings it did on the material before it.

112    There is much in common on these two broadly stated approaches. Each posits that jurisdictional error may be discerned, depending on the reasoning process, in relation to the state of satisfaction achieved for the purposes of s 65 of the Act.

113    The difficulty for the appellant in the appeal now before the Court is that when one analyses the process of reasoning that the Tribunal engaged in and the materials before the Tribunal, the particular findings made in respect of the provision by the appellant of the UC letter do not appear to be critical to the Tribunal’s decision, in relation to the state of satisfaction required under s 65, and indeed the Tribunal may be taken primarily to have arrived at the decision it made by reference to a number of other findings that it made concerning the credibility of the appellant and not just that concerning the significance of the appellant’s provision of the UC letter. Additionally, the finding made concerning the significance of the appellant having submitted the non-genuine UC letter may not be considered irrational or illogical.

114    The appellant’s case on appeal on this ground focuses on the last sentence of [139] of the Tribunal’s decision record, where it was stated:

In the Tribunal’s view, the preparedness of the applicant to submit documents that are not genuine raises serious doubts about his credibility.

That statement was said on behalf of the appellant to indicate that the Tribunal considered the appellant to have engaged in fraudulent conduct in submitting the non-genuine UC letter and that that finding undermined the appellant’s credibility generally in the eyes of the Tribunal and so, in effect, coloured the whole approach of the Tribunal to all the other evidence given by the appellant to the Tribunal. In my view, however, that primary submission is not made out by a reasonable perusal of what the Tribunal did and said in its decision record.

115    Starting at [124] of the decision record, the Tribunal noted there were “significant inconsistencies” in the appellant’s evidence which he had either not explained or where his explanations were not credible. The Tribunal there also expressed the view that the appellant’s actions in returning to Bangladesh from Kuwait in 2006 were inconsistent with his claimed experiences in Bangladesh and his claimed fear of returning. It was then added that the appellant’s credibility was further brought into question through the provision of the non-genuine UC document. It was for these various reasons that the Tribunal, at [124], first said that it did not accept that the appellant had provided a “truthful account” of his experiences in Bangladesh or a genuine account of his fears of returning there.

116    At [125]-[136] the Tribunal identified a range of evidence it considered inconsistent.

117    It was then at [137] that the Tribunal again noted that it had significant doubts about documents which the appellant had presented to support his claim and made particular reference to the UC letter. The Tribunal stated, at [137], that the appellant had offered no explanation for how such remarkably similar documents as the UC letter and the other Pubail Union Council letter could be prepared by different sources, other than to assert the genuineness of the document he had presented.

118    At [138] the Tribunal noted that, by way of comment, the applicant had stated that his brother obtained the document and the content was true and correct. The Tribunal there further noted that the appellant had submitted three additional statements after being put on notice about the Tribunal’s concerns. The Tribunal noted that two of these letters were not from the Tumilia Union Council but from members of another organisation known as the Toomilia Union Parishad. The Tribunal noted that in the third document, from the Tumilia Union Council, the author stated that the certificates in the past were truthful and correct. However, the Tribunal further noted that the author provided no explanation for the identical wording of the two documents in question. Thus, the Tribunal expressed the view that the further documents submitted, did not overcome the Tribunal’s concerns about the original document.

119    It was in those circumstances that the Tribunal, at [139], expressed the view that the identical nature of the UC letter and the Pubail Union Council letter, except for the identification of the relevant applicant by name and relationship, with no explanation, indicated that the document the appellant had submitted was not genuine and that the further documents did not overcome the Tribunal’s concerns.

120    The Tribunal then went on, at [139], to state that it did not appear possible to the Tribunal that such identical documentation could be prepared in Bangladesh from different sources, on different dates, by chance, particularly when no explanation has been offered by the appellant as to how this could have happened.

121    The Tribunal then expressed the view, set out above, that the appellant’s preparedness to submit documents that were not genuine raised serious doubts about his credibility.

122    While it may reasonably be contended that the mere fact that the appellant lodged the non-genuine UC letter does not logically lead to the conclusion that the appellant appreciated its non-genuine status when he submitted it with his protection visa application (because there might be good explanations that relieve the appellant of any appreciation of the fact), so that his credibility should be doubted, it was not this fact alone upon which the Tribunal relied when it ultimately doubted the appellant’s credibility as a consequence of its lodgement by him. The Tribunal additionally relied on the fact that it put the appellant on notice over its concerns about the letter, including that its lodgement could raise questions about his credibility, and that in providing further materials relating to the UC letter he did not adequately respond to the points raised about the identical nature of the translation of the UC letter and the Pubail Union Council letter, and simply continued to insist that the contents were true and correct.

123    In my view, it was reasonably open to the Tribunal, having regard to this collection of facts, to make the finding that it did that there were reasons to doubt the credibility of the appellant from his conduct in lodging the non-genuine UC letter. It should be noted, as his Honour did in the Court below, that there is no challenge in the proceeding to the finding that the UC letter was “non-genuine”.

124    Reasonably, the appellant was called upon to say something more than he did to throw off a suspicion that he must have been aware of its non-genuine status when he lodged the UC letter with his initial protection visa application.

125    In all of these circumstances, the two points noted at the outset of the discussion of ground 1 need to be emphasised. First, that the Tribunal reached its state of satisfaction under s 65 by reason of a number of findings it made about the inconsistencies in the appellant’s evidence that led it to doubt his credibility. The finding it made about the questions raised as to the appellant’s credibility from his lodgement of the non-genuine UC letter were but one of the relevant credibility findings. There is no basis in all of these circumstances to find, as the appellant submits the Court should, that the ultimate decision of the Tribunal was founded on its finding at the last sentence of [139] of the Tribunal’s decision record.

126    Secondly, the finding actually made in that regard by the Tribunal was one, as his Honour found in the Court below, that was reasonably open to different minds – to use the expression adopted by Crennan and Bell JJ in SZMDS. The lodgement of the non-genuine letter was something that the Tribunal considered called for some additional explanation by the appellant as to his knowledge of its status. In the result, the Tribunal was not satisfied with the response given by the appellant. That it should then have concluded that his response raised questions about his credibility in lodging the non-genuine letter was reasonably open to the Tribunal, and his Honour in the Court below did not err in so finding.

127    For these reasons, ground 1 must fail.

ground 2 – the cumulative effect claim

128    The Tribunal was faced with a protection visa application that relied upon the appellant’s fear of harm arising from both his Catholic faith and also his support for the BNP.

129    The Tribunal, ultimately, at [146], rejected that claim but expressed its finding in a way that has attracted the challenge in ground 2 of this appeal, namely:

The Tribunal does not accept that the applicant supported the BNP in the way claimed and does not accept that there is a real chance of the applicant suffering serious harm for this reason should he now return to Bangladesh now or in the reasonably foreseeable future. As stated, the Tribunal does not accept that he has experienced harm on this basis in the past, as he has not provided a truthful account of his past experiences or a truthful account of the harm he fears if he were to return.

(Emphasis added.)

130    The appellant submits that the emphasised words, “in the way claimed” reasonably implies that the Tribunal accepted that the appellant had supported the BNP in other ways and that, taking this into account and having observed that it was unusual for Catholics to support the BNP, the Tribunal should then have considered whether the status of the appellant as a Catholic who supported the BNP gave rise to a real chance of serious harm, should he return to Bangladesh now or in the reasonably foreseeable future. In my view, the analysis made on behalf of the appellant to construct a particular category of “Catholic who supports the BNP” is both artificial but more particularly not arising on the claims and evidence in this case.

131    The findings made by the Tribunal, and confirmed by his Honour in the Court below, accepted (having regard to the questions put in the Tribunal to the appellant, noted at [68] and following of the decision record) that it would be unusual for a Catholic to support the BNP in Bangladesh. However, such a comment, which was made by way of preface to questions put to the appellant about his engagement with the BNP, does not constitute a finding by the Tribunal to that effect.

132    The appellant had by his application and the way he put his case in the Tribunal made clear the basis upon which he said he supported the BNP. There was the question of an involvement as a student with a teacher at high school, although at that point it is not clear that he was a member of the BNP or the BNYP. The documentary materials supplied suggested that he had been involved with both the BNP and the BNYP. That involvement was claimed to be by way of participation in rallies and the like.

133    The Tribunal dealt with the claims made that the appellant had been targeted by a particular individual at [142] and had found that while there may have been an incident in 1985 or 1995 in the appellant’s local area involving a terrorist group, it did not accept that this had led to any ongoing interest in him or his family which he claimed.

134    The ultimate finding, at [146], that the Tribunal did not accept that the appellant supported the BNP “in the way claimed” was, in my view, as submitted on behalf of the Minister, nothing more than a stylistic flourish. Construed in the context of the discussion that precedes paragraph [146], there is no reason to construe the words used as indicating anything more than that the Tribunal did not accept there was any relevant involvement in BNP which was likely to lead to a real chance of the appellant suffering serious harm should he now return to Bangladesh.

135    In circumstances where the Tribunal rejected the appellant’s refugee claims based on his religious affiliation and also rejected his claims based on past involvement with BNP, the suggestion that there remained any facts upon which the Tribunal was obliged to consider some other “cumulative” basis to his claim for refugee status is simply not made out.

136    This is not a case like that of Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 75 ALD 630 where it was clearly a significant element of the appellant’s application before the Tribunal that the marriage of his son to a Muslim woman would have repercussions for him and his wife upon their return to Iran and that he was contending that those repercussions would amount to persecution for a Convention reason. There the Court (French, Sackville and Hely JJ) held that, while the Tribunal recounted the appellant’s claims on the issue early in its reasons, it failed to consider the evidence and the contention that led to the inescapable conclusion that it failed to address the issue at all. In the case now before the Court it is difficult to see how the claims made, the evidence led and the findings recorded by the Tribunal left for consideration a putative claim that the appellant might be persecuted for a Convention reason should he return to Bangladesh because of the combination of facts that he was a Catholic and had supported the BNP.

137    Nor is it a case like Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244 where the Full Court (Spender, Merkel and Allsop JJ) allowed an appeal on the basis that a claim made was not considered. Merkel J, at [7], accepted that the Tribunal may deal separately with each element of a claim made but emphasised that does not relieve it of the task of addressing cumulatively all of the essential elements of the claim raised by the material or the evidence. Thus, his Honour, at [8], held that on a fair reading of the Tribunal’s reasons it did not address or deal with all of the essential elements of the appellant’s claim in that case because, as explained by Allsop J, it did not address or deal with the claim insofar as it was based on the appellant’s association in public with “friends”, who included senior members of the Karen National Liberation Army (KNLA). His Honour, at [11], thus held that the Tribunal did not address or deal with the appellant’s claim in so far as it was based on an imputed political opinion derived from his involvement in a broader range of anti-government activities in Australia and his association in public with senior members of groups that opposed the government, including the KNLA.

138    Allsop J (with whom Spender J agreed), at [42], considered that the participation in the Karen community and the political groups could be said to have been dealt with by the Tribunal but the friendships with people in organisations such as the KNLA were not. His Honour said that this was not merely one aspect of evidence not being touched, not a failure to find a relevant fact. Rather, the Tribunal failed to address and deal with how the claim was put, at least in part. The Tribunal did not deal with the aspect of the appellant’s sur place claim based on political opinion. It was not a failure merely to attend to evidence, even probative evidence, and by such route commit a factual error. It was a failure to deal with one part of the claim for asylum on the basis of his imputed political opinion.

139    That is not to say that in some appropriate case, a person’s membership of a religious group and their demonstrated support for some political philosophy might not, when taken together, reasonably raise a question whether Australia owed them protection obligations under the Convention. But on the facts of this case, that question simply did not arise and was not required to be considered by the Tribunal. His Honour was therefore not in error in so concluding.

140    For these reasons the ground 2 must be dismissed.

conclusion and order

141    For the reasons given above, the appeal should be dismissed with costs.

Associate:

Dated:    25 February 2013