S76 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 120 (4 July 2005)

Last Updated: 5 July 2005

FEDERAL COURT OF AUSTRALIA

S76 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 120

MIGRATION – application for protection visa – whether Tribunal’s decision rejecting claim of well-founded fear of persecution was vitiated by error – applicant converting from Islam to Hinduism on marrying a Hindu – effect of fatwa pronounced by village salish – Tribunal’s alleged failure to consider effect of stay by appellate court of declaration by Bangladeshi High Court after appellant had left Bangladesh that fatwas illegal – Tribunal finding that appellant lacked a subjective fear of persecution – whether Tribunal should have considered independently the effect of appellant’s apostasy from Islam as distinct from his contracting a mixed marriage – whether Tribunal erred in finding that appellant could relocate to live among "liberal minded" people away from his ancestral village – appeal dismissed.


Judiciary Act 1903 (Cth) s 39B
Migration Act 1958 (Cth) s 501

WACO v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 171; (2003) 77 ALD 1
Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40; (1986) 162 CLR 24
Chan Yee Kim v Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379
Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611
Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; (2004) 203 ALR 112
Minister for Immigration and Multicultural Affairs; Ex parte applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59






APPLICANT S76 of 2003 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 1335 of 2004

RYAN, FINKELSTEIN and ALLSOP JJ
4 JULY 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1335 of 2004

On appeal from a Judge of the Federal Court of Australia

BETWEEN:	APPLICANT S76 of 2003 Appellant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS Respondent
JUDGES:	RYAN, FINKELSTEIN and ALLSOP JJ
DATE OF ORDER:	4 JULY 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:


1. The appeal be dismissed.
2. The appellant pay the respondent’s costs, to be taxed in default of agreement.









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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1335 of 2004

On appeal from a Judge of the Federal Court of Australia

BETWEEN:	APPLICANT S76 of 2003 Appellant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS Respondent

JUDGES:	RYAN, FINKELSTEIN and ALLSOP JJ
DATE:	4 JULY 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

THE COURT:

Introduction

1 There is before the Court an appeal from a decision of a Judge of this Court dismissing an application pursuant to s 39B of the Judiciary Act 1903 (Cth) for an order nisi seeking constitutional writs in respect of a decision pursuant to s 501 of the Migration Act 1958 (Cth) ("the Act") of the Refugee Review Tribunal ("the Tribunal") dated 6 March 2002. The Tribunal determined to affirm a decision of a delegate of the respondent Minister ("the Minister") to refuse to grant a protection visa to the appellant. The application was remitted by the High Court to this Court. At the commencement of the hearing of the remitter, the appellant filed a document headed "Amended Application Under Judiciary Act 1903 and Migration Act 1958." The grounds set out in that document were:

‘1. The Tribunal found that the applicant "could avail himself of the protection of the authorities in his own country over a fatwa as fatwas have been declared illegal by the Bangladesh High Court. (RD 214.5) The Tribunal fell into jurisdictional error in making this finding.

Particulars

a) The Tribunal ignored relevant material, being a 2001 US Department of State report, in its possession.

b) The Tribunal failed to obtain current country information in relation to a matter on which it based its decision.

c) In connection with the Tribunal’s failure to obtain current country information in relation to the matter on which it based its decision, the Tribunal failed to accord procedural fairness to the applicant and/or misconceived its obligations under s 424 of the Migration Act.

d) The Tribunal failed to consider, or properly speculate as to, whether a decision of the High Court of Bangladesh in January 2001 concerning fatwas might be overturned on appeal or not enforced.

2. The Tribunal found that the applicant did not have a "genuine fear of persecution over a fatwa". (RD 215.3) The Court should grant the applicant relief despite this finding.

3. The Tribunal found that the applicant could relocate to a larger urban centre such as Dhaka. (RD 216.4 and 217.3) The Court should grant the applicant relief despite this finding.’

Background

2 The appellant travelled to Australia on an Indian passport under a different name from the one he has used since his arrival in this country on 7 March 1997. About three weeks later, the Bangladeshi High Commissioner in Canberra issued him with a Bangladeshi passport in the name that he has thereafter used. The appellant applied for a protection visa on 2 August 1997.

3 The appellant’s application for a protection visa discloses that he was born in 1971 and that he obtained the degree of Bachelor of Arts in 1995. He worked from 1993 until August 1996 in his family’s business in Matlab. At the end of that period he occupied the position of manager. The application also discloses that he married on 15 August 1996 in Dhaka.

4 The appellant’s visa application gives the following explanation for his having left Bangladesh:

‘I was compelled to leave Bangladesh because I disobeyed my religious advice and got married to a girl who was Hindu in religion, she belongs to the same district as me. We had an affair for long time. I married her according to Hindu law & custom. Consequently I was personally attacked & bashed by some of the so called religious people. My family has been taunted and jeered by local fanatics. In fact, at that stage I could not bear all these any more and was forced to leave Bangladesh.’

5 In June 1997 a delegate of the respondent refused to grant the appellant a protection visa. Following an application to the Tribunal for review of the decision of the delegate, the Tribunal affirmed the delegate’s decision on 24 May 2000. An application to this Court for judicial review of the decision of the Tribunal succeeded and the matter was remitted to the Tribunal for further consideration. On 7 February 2001 the Tribunal, differently constituted, conducted a fresh hearing and on 6 March 2002 the Tribunal made the decision the subject of this proceeding. The Tribunal’s decision was handed down on 28 March 2002. The appellant subsequently applied to the High Court for an order nisi for constitutional writs. On 25 August 2003 Heydon J ordered, amongst other things, that further proceedings be remitted to the Federal Court. On 18 August 2004, as noted above, there was before this Court an amended application dated 18 August 2004 which it is common ground was in the nature of a pleading amendment to the draft order nisi and not a fresh or separate invocation of the original jurisdiction of this Court. After the hearing on that day the primary Judge (Branson J) on 26 August 2004 published reasons in which she carefully considered and outlined the grounds on which the appellant had relied to contend that the Tribunal’s decision was vitiated by jurisdictional error, and explained in detail why she concluded that the appellant’s contentions should be rejected.

6 By a notice of objection to competency dated 21 October 2004, the Minister contended that the decision of Branson J of 26 August 2004 was interlocutory and, in the absence of leave to appeal from it, the present appeal could not be entertained. However, Counsel for the Minister indicated before the hearing of the appeal that the objection to competency was no longer pressed.

Grounds of Appeal

7 The appellant alleged that her Honour erred in three respects. The first ground of appeal is related to her Honour’s refusal to find that the Tribunal fell into jurisdictional error in finding that the appellant "could avail himself of the protection of the authorities in his own country over a fatwa as fatwas have been declared illegal by the Bangladesh High Court".

8 The second ground of appeal is related to her Honour’s finding that "the decision of the Tribunal is supported by two grounds to which the [appellant’s] complaints do not reach: that is he does not have a subjective fear of persecution in Bangladesh and that, even if he did, he could avoid persecution by relocating within Bangladesh". The appellant submitted that her Honour erred in finding that the appellant’s complaints did not reach to those two grounds.

9 The third ground of appeal is expressed in these terms in the appellant’s written notice of appeal;

‘3. The Honourable trial judge erred in considering view formed by the Tribunal on the basis of DFAT information, which is contradictory. Particularly DFAT cable DA1206 OF 11/06/96 AND cx17737).’

Submissions of the Appellant

10 Counsel for the appellant identified as critical to the application of the concept of a well-founded fear of persecution the finding at first instance that, although a fatwa had been "passed on the [appellant]", it no longer presented any reason for him to fear harm or persecution because of the declaration by the Bangladeshi High Court of January 2001 and the lack of continuing enforceability of village salishes. Reference was made in this context to WACO v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 171; (2003) 77 ALD 1 where a Full Court of this Court held, esp. at [42], that the Tribunal is under a duty, as a matter of procedural fairness, to raise clearly with an applicant "the critical issues on which his or her application might depend."

11 In a related way it was contended that the status of the ruling by the Bangladeshi High Court and the political upheaval which surrounded its release were material facts which the Tribunal was bound to take into account (cp. Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40; (1986) 162 CLR 24). The Tribunal was said to have been led to overlook those matters by its finding that there was only a remote chance of persecution either because the influence of village salishes was extremely limited or the appellant could have availed himself of the protection of the authorities after the High Court had declared fatwas to be illegal.

12 More particularly, the Tribunal was said to have been selective in noting that only five fatwas had been passed, all of them against women, and in overlooking the appellant’s conversion from Islam to Hinduism and the evidence of "strong social resistance" to Islamic apostasy. As a result, so it was said, the Tribunal had "erred in law in concluding that the [appellant’s] fear of persecution was not well-founded (cf. Chan Yee Kim v Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379)."

13 Alternatively, Counsel for the appellant contended, the Tribunal’s conclusion that the appellant did not have a well-founded fear of persecution was "unreasonable" in the sense identified by Gummow J in Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 ("Eshetu"). Support for that contention was said to be derived from the Tribunal’s having disregarded or discounted "country information" about a comparable case, and about continuing harassment of parties to mixed marriages and the evidence of a Dr Rozario that the appellant was "at serious risk of physical harm" from Islamic conservatives "who continue to exert a very significant amount of power within the formal political arena."

14 By way of corollary, Counsel for the appellant submitted that the Tribunal should have found that the Bangladeshi police are "ineffective" in enforcing laws unpalatable to the Muslim majority. The Tribunal’s finding that the appellant could look for protection to the police and those active in combating fatwas was said to be against the evidence or the weight of the evidence and unreasonable and illogical without some investigation of the status of the High Court’s declaration on fatwas, a stay of that ruling by the Appellate Court, and a report that the Government of Bangladesh had no intention to enforce the declaration.

15 The appellant also attacked the Tribunal’s finding that it would be reasonable for him, if returned to Bangladesh, to move away from his "ancestral family" to another area. In particular, the Tribunal hypothesised that the appellant "could live at ease and in safety" in Dhaka because "it was confident that among Dhaka’s population of some 10 million the [appellant] would be able to find a sufficiency of liberal-minded people among whom he could live." These conclusions were said to be so unreasonable, irrational and unsupportable by inferences available to be drawn from wedding photos to which the Tribunal had referred, as to amount to jurisdictional error of law.

16 A second limb of this third argument was that it was an implied premise of the Tribunal’s decision that the appellant could be expected to live discreetly in Dhaka or elsewhere among the liberal-minded people on whom the Tribunal’s hypothesis had been predicated. That was said to involve the jurisdictional error identified by the High Court in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; (2004) 203 ALR 112, where Gummow and Hayne JJ observed, at 131 [82];

‘Saying that an applicant for protection would live "discreetly" in the country of nationality may be an accurate general description of the way in which that person would go about his or her daily life. To say that a decision-maker "expects" that that person will live discreetly may also be accurate if it is read as a statement of what is thought likely to happen. But to say that an applicant for protection is "expected" to live discreetly is both wrong and irrelevant to the task to be undertaken by the Tribunal if it is intended as a statement of what the applicant must do. The Tribunal has no jurisdiction or power to require anyone to do anything in the country of nationality of an applicant for protection. Moreover, the use of such language will often reveal that consideration of the consequences of sexual identity has wrongly been confined to participation in sexual acts rather than that range of behaviour and activities of life which may be informed or affected by sexual identity. No less importantly, if the Tribunal makes such a requirement, it has failed to address what we have earlier identified as the fundamental question for its consideration, which is to decide whether there is a well-founded fear of persecution. It has asked the wrong question.’

17 The Tribunal was also said, under this head, to have erected a false dichotomy of the kind noted by the High Court in S395/2002 when it criticised the division of homosexual Bangladeshi males into two groups – the discreet and the non-discreet. Presumably, the dichotomy imputed to the Tribunal in the present case was between Hindu converts from Islam who flaunted or advertised their changed adherence and those who did not.

The reasoning at first instance

18 In relation to the first ground of appeal, her Honour noted the Tribunal’s finding that the appellant could avail himself of the protection of the authorities in his own country, as fatwas had been declared illegal by the Bangladeshi High Court. Further, her Honour considered that the reasons for decision of the Tribunal disclosed that its finding had been based firmly on a ruling of the Bangladeshi High Court of January 2001.

19 However, the learned primary Judge went on to find that the Tribunal had not been satisfied that the appellant’s decision to come to Australia had been based on a genuine and well-founded fear of persecution arising from a fatwa issued against him. The Tribunal’s inability to be satisfied on that issue, her Honour considered, stemmed from a number of factors independent of the ruling of the Bangladeshi High Court of January 2001. Those additional factors were said to be identified in this passage which her Honour quoted (at [23]) from the Tribunal’s reasons:

‘It is relevant to state that, independently of the reasons just stated, I am not satisfied that the applicant’s decision to come to Australia was based on a genuine and well-founded fear of persecution over a fatwa. Independent evidence shows that the influence of village salishes was extremely limited and that the number of those severely harmed by fatwas was very, very small. It was reported during the fatwa furore in Bangladesh in the mid-1990s that five fatwa sentences had been passed against women and that of those, two had died as a result of being horribly whipped (DFAT cable DA88 of 22/12/94, CX4597). Those cases, set against the Bangladeshi population of women alone at 60 million at the time, do not suggest that fatwa activity was significant or tolerated or unchecked. On the contrary, independent evidence states that fatwas generally carried "little weight" (Lesnes, Corine: Bangladeshi Women begin to Fight Back, Guardian Weekly, 23/7/95, (CX10337), that the Bangladeshi Government had "sought to clamp down on the activities of the illegal salish", and that "most Bangladeshis are not fundamentalists" (Montagnon, Peter: Survey of Bangladesh, Financial Times, 24/3/95, via Lexis/Nexis, CX15786; Treatment of Women by the Village Salish, The Economist, 22/10/04, CX3925).

Given all of this, I am not satisfied that the applicant faced a real chance of harm or had found himself unable to avail himself of protection within Bangladesh in relation to a fatwa. He was well educated, he had access to independent funds which allowed him to move around and outside the country, and friends and sympathisers who came to his Hindu wedding and gave him shelter afterwards in Dhaka. With these, and aided by the police and those organisations active in combating fatwas, I consider that the applicant would have been able to avoid those who wished him harm and to find protection against them. Evidence submitted by the applicant’s supporter, Mr Akhter Hossain (p. 6), shows that people are able to escape fatwas by moving out of the area where the relevant salish operated, while staying within Bangladesh.

I am of the view that the few people who have been reported as having been harmed by fatwas were/are people who were attacked before they could take action to protect themselves or who had no access to help and no independent means. It is relevant to restate here that no country can guarantee protection to its citizens in respect of any harm. Be that as it may, the applicant has demonstrated by his own actions that he was not one of those people who exhibited a vulnerability to harm: he left his village before a fatwa was issued, he had money to re-establish himself elsewhere, and he had friends who helped him along the way. I am thus not satisfied that he lacked the means and ability to find safety within Bangladesh from the fatwa passed against him in his village.’

20 The second ground of appeal is related to her Honour’s finding that "the decision of the Tribunal is supported by two grounds to which the [appellant’s] complaints do not reach: that is he does not have a subjective fear of persecution in Bangladesh and that, even if he did, he could avoid persecution by relocating within Bangladesh".

21 Her Honour considered that the Tribunal’s finding that the appellant did not have a subjective fear of persecution when he left Bangladesh in 1997 involved a rejection by the Tribunal of the appellant’s claim that he had left Bangladesh to avoid persecution. Her Honour held that, in the context of the appellant’s failure to identify any occurrence after 1997 as a basis for his asserted well-founded fear of persecution, that finding entailed a rejection by the Tribunal of the appellant’s claim subjectively to fear persecution in Bangladesh. The reasoning below on this aspect is encapsulated in this paragraph which follows immediately after the quotation from the Tribunal’s reasons which is reproduced at [19] above;

‘24. In considering the significance of the above passage from the Tribunal’s reasons for decision, it must be borne in mind that the applicant left Bangladesh in 1997. For these reasons the Tribunal’s consideration of his capacity, before he left Bangladesh, to avoid problems arising from any fatwa was not affected by the High Court ruling of January 2001. The Tribunal was, of course, not strictly required to determine whether the applicant had a subjective fear of persecution when he left Bangladesh in 1997. However, the finding that the applicant did not have a subjective fear of persecution when he left Bangladesh involved a rejection by the Tribunal of the claim made by the applicant that he had left Bangladesh to avoid persecution. The applicant did not identify anything that occurred later than 1997 as providing a basis for his asserted well-founded fear of persecution. For this reason, the above passage properly understood involves a rejection by the Tribunal of the applicant’s claim to subjectively fear persecution in Bangladesh. In the unlikely event that the applicant had come, after the date of the Tribunal hearing, to fear persecution in Bangladesh for a reason related to the High Court ruling, it was open to him, possibly through his legal representative, to inform the Tribunal of this.’

22 The second ground to which her Honour referred was that based on the Tribunal’s determination that, even if the appellant had a well-founded fear of persecution in his home region in Bangladesh, he could have avoided it by relocating to another area. Her Honour was satisfied by the Tribunal’s reasons that it had reached its decision on this matter by reference to "information concerning the city of Dhaka, knowledge of the skills and recent experiences of the appellant and the appellant’s experiences prior to his leaving Bangladesh in 1997" and not on the ruling of the High Court of Bangladesh of January 2001.

23 The third ground of appeal was that the learned primary Judge had erred in analysis of a conclusion reached by the Tribunal which had been based on contradictory DFAT information. That conclusion was expressed in this passage from p 13 of the Tribunal’s reasons;

‘I am not satisfied that [the appellant] would face any significant difficulty over his conversion and mixed marriage in settling down in a city such as Dhaka, which is rapidly becoming a "westernised city with a consequent moderation of attitudes towards marriage, de facto relationships, women’s rights, etc." (DFAT cable DA1206 of 11/06/96 and CX17737) While other people might not wish to have made such major changes in life as the [appellant] has done, independent evidence (Ibid., also CX35245) does not suggest that general society would ostracise the appellant or cause him to suffer particular hardship over his actions. Given his evidence that even in his own village some Hindus and Muslims enjoyed good relations, I am confident that among Dhaka’s population of some 10 million the applicant would be able find a sufficiency of liberal-minded people among whom he could live at ease and in safety. ...’

24 Her Honour observed in respect of that passage and the two paragraphs that immediately followed it that;

‘25. Again it is clear that the findings contained in the above passage are not based on the ruling of the High Court of Bangladesh of January 2001. They are based on information concerning the city of Dhaka, knowledge of the skills and recent experiences of the applicant and the applicant’s experiences prior to his leaving Bangladesh in 1997.’

Resolution of issues on the appeal

(i) Was there jurisdictional error in attaching weight to the declaration by the Bangladeshi High Court without regard to the stay of the declaration by the Appellate Court?

25 In our view, the Tribunal’s treatment of this issue has to be assessed in the light of the use which it made of the declaration by the Bangladeshi High Court that fatwas were illegal. Regard was not paid to that matter as something effecting a change of conditions in Bangladesh which would otherwise have exposed the appellant to a real risk of persecution. Rather, the Tribunal saw the High Court declaration as merely one indication of a relaxation of hostility to mixed marriages. That relaxation, according to the Tribunal, had been discernible since at least the time when the appellant had left Bangladesh in 1997.

26 The learned primary Judge clearly understood that to have been the reasoning process of the Tribunal because she observed at [23] of her reasons;

‘The Tribunal found that the applicant could avail himself of the protection of the authorities in his own country over a fatwa, as fatwas had been declared illegal by the High Court. The reasons for decision of the Tribunal show that this finding was firmly based on the ruling of the High Court of January 2001. However, after recording this finding, the reasons for decision of the Tribunal go on: ... ... ...’

27 Her Honour then set out the passage from the Tribunal’s reasons reproduced at [19] above and continued;

‘24. In considering the significance of the above passage from the Tribunal’s reasons for decision, it must be borne in mind that the applicant left Bangladesh in 1997. For these reasons the Tribunal’s consideration of his capacity, before he left Bangladesh, to avoid problems arising from any fatwa was not affected by the High Court ruling of January 2001. The Tribunal was, of course, not strictly required to determine whether the applicant had a subjective fear of persecution when he left Bangladesh in 1997. However, the finding that the applicant did not have a subjective fear of persecution when he left Bangladesh involved a rejection by the Tribunal of the claim made by the applicant that he had left Bangladesh to avoid persecution. The applicant did not identify anything that occurred later than 1997 as providing a basis for his asserted well-founded fear of persecution. For this reason, the above passage properly understood involves a rejection by the Tribunal of the applicant’s claim to subjectively fear persecution in Bangladesh. In the unlikely event that the applicant had come, after the date of the Tribunal hearing, to fear persecution in Bangladesh for a reason related to the High Court ruling, it was open to him, possibly through his legal representative, to inform the Tribunal of this.’

28 It is to be borne in mind in this context that the Tribunal was not required to assess the material about the High Court declaration of the illegality of fatwas and the later stay of that declaration in the same way as a court is required to weigh evidence in inter partes litigation. Here, the Tribunal was required to be satisfied that the appellant had a well-founded fear of persecution for a Convention reason.

29 In Re Minister for Immigration and Multicultural Affairs; Ex parte applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59 Gleeson CJ observed, at 61 [8]-[9];

‘[8] ... ... We are concerned with statutory provisions which operate upon the state of satisfaction, or lack of satisfaction, of an administrative decision-maker. In Avon Downs Pty Ltd v Federal Commissioner of Taxation [(1949) [1949] HCA 26; 78 CLR 353 at 360], Dixon J said:

"But it is for the commissioner, not for me, to be satisfied of the state of the voting power at the end of the year of income. His decision, it is true, is not unexaminable. If he does not address himself to the question which the sub-section formulates, if his conclusion is affected by some mistake of law, if he takes some extraneous reason into consideration or excludes from consideration some factor which should affect his determination, on any of these grounds his conclusion is liable to review. Moreover, the fact that he has not made known the reasons why he was not satisfied will not prevent the review of his decision. The conclusion he has reached may, on a full consideration of the material that was before him, be found to be capable of explanation only on the ground of some such misconception. If the result appears to be unreasonable on the supposition that he addressed himself to the right question, correctly applied the rules of law and took into account all the relevant considerations and no irrelevant considerations, then it may be a proper inference that it is a false supposition."

[9] To describe as irrational a conclusion that a decision-maker is not satisfied of a matter of fact, or a state of affairs, because the decision-maker does not believe the person seeking to create the state of satisfaction, or to describe the process of reasoning leading to such a conclusion as illogical, on judicial review of an administrative decision, might mean no more than that, on the material before the decision-maker, the court would have reached the required state of satisfaction. Ordinarily, however, it will be necessary to go further, as in the respects mentioned by Dixon J. If, in a particular context, it is material to consider whether there has been an error of law, then it will not suffice to establish some faulty inference of fact Australian Broadcasting Tribunal v Bond [(1990) [1990] HCA 33; 170 CLR 321 at 356 per Mason CJ]. On the other hand, where there is a duty to act judicially, a power must be exercised "according to law, and not humour" [Sharp v Wakefield [1891] AC 173 at 179 per Lord Halsbury LC], and irrationality of the kind described by Deane J in Australian Broadcasting Tribunal v Bond [(1990) [1990] HCA 33; 170 CLR 321 at 367] may involve non-compliance with the duty. Furthermore, where "the true and only reasonable conclusion contradicts [a] determination" then the determination may be shown to involve legal error [Edwards (Inspector of Taxes) v Bairstow [1955] UKHL 3; [1956] AC 14 at 36 per Lord Radcliffe; Vetter v Lake Macquarie City Council [2001] HCA 12; (2001) 202 CLR 439 at 450 [25]]. It is often unhelpful to discuss, in the abstract, the legal consequences of irrationality, or illogicality, or unreasonableness of some degree. In a context such as the present, it is necessary to identify and characterise the suggested error, and relate it to the legal rubric under which a decision is challenged.’

30 In the present case the state of satisfaction attained by the Tribunal had a twofold aspect. In the first place, as her Honour pointed out, the Tribunal found that the appellant did not have a subjective fear of persecution at the time when he left Bangladesh in 1997. The next question which the Tribunal addressed was whether anything had happened since 1997 to give rise to a well-founded fear of persecution if the appellant were thereafter to return to Bangladesh. The Tribunal had regard, in answering that question, to the High Court declaration that fatwas were illegal but did not, on the face of its reasons, consider whether the effect of that declaration had been mitigated by the stay granted by the Appellate Court.

31 In our view, the process of reasoning adopted in this case by the Tribunal was not materially different from that described by Gleeson CJ and McHugh J in Eshetu (supra) where their Honours observed, at 627 [45];

‘In the present case the question was whether the Tribunal was satisfied that Mr Eshetu's fear of persecution was well-founded. The Tribunal took as its commencing point his explanation of the reasons for his fear and then subjected those reasons to investigation and scrutiny. Having done that the Tribunal expressed a lack of satisfaction. It was criticised on the ground that it gave inadequate weight to certain considerations and undue weight to others. Its ultimate decision was said to have been based upon a process of reasoning flawed in those respects. This is not a case of Wednesbury ([1948] 1 KB 223) unreasonableness, and it does not constitute a proper basis for the grant of constitutional relief under s 75(v) of the Constitution.’

32 Logically, the stay could not have made the situation which existed before the High Court declaration, any worse for those subject to fatwas, than that which had existed in 1997. It follows that, although the Appellate Court’s stay might have induced a member of this Court to reach the requisite state of satisfaction, the Tribunal’s failure to take account of it does not signify legal error in the sense identified by Gleeson CJ in the passage from Applicant S20 which we have reproduced at [29] above.

33 Even if all due regard had been paid to the stay of the High Court declaration that fatwas were illegal, the conclusion that the appellant had, at the date of the Tribunal’s decision, a fear of persecution well-founded on his marriage and conversion to Hinduism was far from the only conclusion reasonably available to the Tribunal. In this sense, the present case is indistinguishable from Eshetu where Gleeson CJ and McHugh J observed, at 629 [55] in a passage after that which we have already quoted;

‘... ... The Tribunal concentrated its attention on Mr Eshetu's explanation of his fears. Having rejected that explanation, it did not embark upon a search for some alternative explanation which he did not advance. Once again, different minds could form different views about the reasonableness of that approach. However, it involves no error of law. The ultimate question was whether the Tribunal was satisfied about something. The approach adopted by the Tribunal does not manifest a legally erroneous view as to what it was about which it needed to be satisfied. For the Tribunal to conclude that, although it was satisfied that Mr Eshetu feared persecution, an examination of the reasons he advanced as to why he held that fear failed to satisfy the Tribunal that the fear was well-founded, does not reflect any misunderstanding as to the meaning of the concept of a well-founded fear.’

34 It follows that this first ground of appeal must fail.

(ii) Did the appellant’s complaints not reach the findings that he lacked a subjective fear of persecution and that, in any event, he could avoid persecution by relocating within Bangladesh?

35 The passage in the learned primary Judge’s reasons where the point was made that the appellant’s complaints "do not reach" the findings as to subjective fear of persecution and his ability to relocate was expressed as follows;

‘26. As the grounds upon which the applicant seeks the issue of constitutional writs reach to only one of the three independent bases upon which the Tribunal concluded that the applicant is not a person to whom Australia owes protection obligations under the Convention, it is strictly unnecessary to give consideration to those grounds. The decision of the Tribunal is supported by two grounds to which the applicant’s complaints do not reach; that is, that he does not have a subjective fear of persecution in Bangladesh and that, even if he did, he could avoid the persecution by relocating within Bangladesh. However, I consider it appropriate to record some brief observations concerning the grounds of relief relied upon.’

36 Her Honour’s observation in that passage is borne out by an examination of the "grounds" of the application which are set out at [1] of these reasons and which came before her Honour on 18 August 2004 in the manner described at [5] above. It can be seen that pars 2 and 3 of those grounds, unlike par 1, do not articulate any additional complaint about the Tribunal’s reasoning. Nor do they impute to the Tribunal a separate, or alternative, jurisdictional error. Rather, they invoke the exercise of the Court’s discretion to set aside the Tribunal’s decision for the error identified in par 1 "despite" the findings identified in each of pars 2 and 3 which seems to imply that those findings are capable of supporting the Tribunal’s decision independently of the finding about the availability of protection from the authorities in Bangladesh which is impugned in par 1 of the "grounds".

37 It follows that the learned primary Judge was correct in holding that the findings identified in pars 1 and 2 of the "grounds" of appeal independently supported the Tribunal’s decision that Australia did not owe protection obligations to the appellant. Because of the invitation in pars 2 and 3 of the appellant’s application to grant him relief "despite" those findings, the learned primary Judge was also correct, with respect, in observing that the appellant’s complaints "do not reach" the grounds adverted to in pars 2 and 3. Accordingly, the second ground of appeal to this Full Court must fail.

(iii) Was there error in analysing the Tribunal’s conclusion as to the effect of the appellant’s conversion to Hinduism and his mixed marriage?

38 The ground of appeal quoted at [9] of these reasons seems to impute to the learned primary Judge an erroneous understanding of two DFAT cables which are said to be contradictory. However, the passage which her Honour quoted, when analysing the relevant part of the Tribunal’s reasons, is that reproduced at [23] above. That passage, far from indicating that there were two contradictory DFAT cables, suggests that the cable DA1206 of 11 June 1996 and the document labelled "CX17737" were one and the same. That seems to be confirmed by the description of item 3 in the statement of evidence before the delegate of the Minister appearing at pp 275 and 279 of the Appeal Book, although the delegate ascribes the date "11/7/96" to what is listed as "CX17737 – DFAT cable from Dhaka DA1206."

39 It is unsurprising, therefore, that, neither in his written submissions nor in his oral development of them on the hearing of the appeal, did Counsel for the appellant refer to any failure by her Honour to appreciate some inconsistency between the two pieces of DFAT information. Rather, Mr Azzi contended that the learned primary Judge had not recognised the full effect of the Tribunal’s failure to assess, in the light of the appellant’s renunciation of Islam, his ability to relocate within Bangladesh.

40 It was the appellant’s apostasy from Islam, Mr Azzi contended, which marked out the appellant from other Muslim partners in mixed marriages. The Tribunal, so it was argued, failed to give proper weight to that distinction when it made a finding that Bangladeshi society does not tolerate persecution of those who step outside their traditional communities. The Tribunal, on this argument, equated contracting a mixed marriage with stepping outside one’s traditional community. By so doing, it was said, the Tribunal had failed to consider as an independent ground of subjection to a fatwa the much more extreme step of apostasy from Islam.

41 In a related way, Mr Azzi sought to impute to the Tribunal the imposition on the appellant of a requirement to live discreetly in Dhaka among the "sufficiency of liberal-mined people" postulated in the passage reproduced at [23] above. That was said to erect a "false dichotomy" of the kind criticised by the High Court in S395/2002 v Minister for Immigration and Multicultural Affairs (supra); see esp per Gummow and Hayne JJ at 133-134.

42 It seems clear that this third question of the appellant’s ability to relocate was never addressed, either before the Tribunal or at first instance in this Court, as an issue separate from whether the appellant had a well-founded fear of persecution wherever he might be in Bangladesh. Thus, the Tribunal, at p 6 of its reasons, summarised in these paragraphs the contentions and evidence directed to the point;

‘The applicant claimed that because Bangladesh was overwhelmingly Muslim he would not be safe anywhere because of his conversion to Hinduism and marriage to a Hindu girl. Even in a big city like Dhaka, he said, Muslims were in power: so one could imagine what would happen to him in a small village.

.........

A submission given to the Tribunal was a statement by a Mr C who recounted the story of a Muslim woman who had married a Hindu and had been disowned by her family and had had to leave the district in order to live peacefully somewhere else. Mr C stated that a salish could well have been convened to consider the case of a person such as the applicant who had renounced his Muslim faith and married a Hindu, and that the applicant would have been thrown out of his village.’

43 Accordingly, the Tribunal accepted, for the purposes of its decision, that "a fatwa had been passed on the applicant by his village salish" but went on to find that the influence of village salishes is extremely limited and that the applicant could readily avoid any detrimental consequences of the fatwa by living outside his village. The latter finding was explained in these terms, at p 11 of the Tribunal’s decision;

‘Given all of this, I am not satisfied that the applicant faced a real chance of harm or had found himself unable to avail himself of protection within Bangladesh in relation to a fatwa. He was well educated, he had access to independent funds which allowed him to move around and outside the country, and friends and sympathisers who came to his Hindu wedding and gave him shelter afterwards in Dhaka. With these, and aided by the police and those organisations active in combating fatwas, I consider that the applicant would have been able to avoid those who wished him harm and to find protection against them. Evidence submitted by the applicant’s supporter, Mr C, shows that people are able to escape fatwas by moving out of the area where the relevant salish operated, while staying within Bangladesh.’

44 That passage and the one reproduced at [23] above make clear that the Tribunal did not impliedly impose on the appellant a requirement to live "discreetly" either as a partner in a mixed marriage or as an apostate from Islam. Rather, they indicate, in part, the Tribunal’s reasons for concluding that it was not satisfied that the appellant, on the basis of either of those characteristics, had a well-founded fear of persecution if he were to return to Bangladesh.

45 Counsel for the appellant frankly conceded that the argument based on an alleged false dichotomy between "discreet" and "non-discreet" apostasy had not been put at first instance in this Court. However, he emphasised that the learned primary Judge had been fully acquainted with the appellant’s contention that, wherever he might go in Bangladesh, including Dhaka, he would be at risk of persecution.

46 That acknowledgement seems to us to point up the fact that, at each stage of this litigation up to the hearing of this appeal, the effects of the appellant’s mixed marriage and apostasy and his ability to live outside his ancestral village community have been rolled up with, and addressed exclusively to, the question of whether, when he left Bangladesh, the appellant had a well-founded fear of persecution. Accordingly, we consider that the learned primary Judge was entirely correct when she pointed out in the passage quoted at [35] above that the appellant’s complaints "do not reach" the second of the two further grounds supporting the Tribunal’s decision namely that, even if the appellant had a subjective fear of persecution, he could avoid the persecution by relocating within Bangladesh. As we have already indicated at [33] above, no jurisdictional error is discernible in the Tribunal’s conclusion that it was not satisfied that the appellant had a well-founded fear of persecution if he were returned to Bangladesh. To an extent, as already explained, the relocation point was involved in that conclusion. For it to be available as a separate ground of attack on the Tribunal’s decision requires an assumption, which we cannot make, that the Tribunal erred in declining to attribute at all to the appellant a well-founded fear of persecution. Accordingly, this third ground of attack on the judgment below must fail.

Conclusion

47 None of the three limbs of the appellant’s attack on the orders below, either as articulated in the notice of appeal or as presented in oral or written submissions, has been made out. It therefore follows that the appeal must be dismissed with costs.

I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Court.

Associate:

Dated: 30 June 2005

Counsel for the Appellant:	Mr J Azzi appeared pro bono
Counsel for the Respondent:	Mr G R Kennett
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	2 March 2005
Date of Judgment:	4 July 2005