Case: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Outcome: cited
On 28 December 2007, the appellant filed a notice of appeal before this Court in which the appellant relies upon ten grounds of appeal. Leaving aside para 1 of the notice of appeal which recites that the appeal is from the whole of the judgment of Federal Magistrate Nicholls, the grounds are these: 1. The Federal Magistrates Court "failed to find error of law, jurisdictional error, or [a denial of] procedural fairness and [a right to] relief under s 39B of the Judiciary Act 1903 ". 2. Federal Magistrate Nicholls "dismissed the case without considering the legal and factual errors contained in the decision of the [Tribunal]". 3. Federal Magistrate Nicholls made "a legal, factual and jurisdictional error in not applying the principles laid down by the Full Court of the Federal Court in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437". 4. Federal Magistrate Nicholls failed to "take consideration that the Tribunal decision was unjust and was made without taking into account the full gravity of my circumstances and consequences of the claim". 5. The Tribunal emphasised "some irrelevant question at the oral evidence [the hearing] and ignored my political background that put my life in risk. In doing so the Tribunal may be said to have ignored relevant material, relied upon irrelevant material and/or made findings which were erroneous or mistaken". 6. The appellant was denied "procedural fairness" in the same way that procedural fairness was denied in Muin v Refugee Review Tribunal [2002] HCA 30 ; (2002) 190 ALR 601. 7. Federal Magistrate Nicholls did not consider the appellant's amended application for relief. 8. The Tribunal, in reaching its decision, did not take into account "certain relevant considerations or 'integers' central to the applicant's claim" and thus failed to carry out its statutory review function. The matters the Tribunal did not consider were the "immense and intimidating pressure from family members because of [the appellant's] homosexuality" and the appellant's claim that "his family members [would] kill him if he returns to Bangladesh". 9. The Tribunal applied the wrong test by "requiring independent evidence of the fact [asserted by the appellant]" before the Tribunal would accept the claim made by the appellant and thus placed "[a] high onus of proof on the applicant and [failed] to give the applicant the benefit of the doubt"; and the Tribunal applied the wrong test by failing to "look at the claim as a whole to determine whether the claim so considered [amounted] to persecution". 13 In Randhawa , the Full Court of the Federal Court (Black CJ, Beaumont and Whitlam JJ) considered Article 1A(2) of the United Nations Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees, the term "refugee" and the meaning and application of the phrase, a person who "owing to well-founded fear of being persecuted ... is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country". The Court concluded that although the Convention definition of refugee does not refer to parts or regions of a country, that circumstance does not provide any warrant for construing the definition so that it would give refugee status to those who although having a well-founded fear of persecution in their home region, could nevertheless avail themselves of the real protection of their country of nationality elsewhere within that country (see: p 440G to p 441A). In this case, the question before the Tribunal was whether it could be satisfied that the appellant held a well-founded fear of persecution for a Convention reason having regard to the appellant's identified claims of persecution derived from his contended sexual orientation. That sexual orientation was said to be demonstrated by reference to the examples of the relationships he claimed to have had with identified participants in the nominated countries. Those relationships and that sexual orientation was then said to have resulted in consequences for him within his family and to give rise to concerns as to how he would be treated by Bangladeshi authorities, particularly the police, having regard to the appellant's contentions that gay men are subjected to ill treatment by Bangladeshi police. 14 The central matter was the assessment by the Tribunal of all the evidence before it and whether it could be satisfied that the evidence was plausible, accurate and truthful. The Tribunal concluded that it was not satisfied of those matters. No question arose as to whether the appellant might be able to safely relocate elsewhere within his home country as a means of avoiding a demonstrated well-founded fear of persecution or harm. The Tribunal was simply not satisfied that the appellant held a well-founded fear of persecution for a Convention reason, as contended. 15 By ground 4, the appellant says that Federal Magistrate Nicholls failed to recognise that the Tribunal's decision was unjust and made without the Tribunal taking account of the "full gravity" of the appellant's circumstances. The reference to the decision of the Tribunal being unjust is not supported by any elaboration. If the ground is intended to be an analogue for a contention that the Tribunal was not entitled to rely upon the inconsistencies isolated in the Tribunal's reasons, the conclusions reached by the Tribunal were open to it arising out of its evaluation of the material and the weight that it elected to place upon the particular matters identified in its reasons. As to the question of the "full gravity" of the appellant's circumstances, it is plain from the detailed analysis undertaken by the Tribunal and the conclusions recorded in its reasons for decision that each of the factual claims made by the appellant were considered and weighed in the balance having regard to all the material put before it. That material included the protection visa application, the statutory declaration in support of the application, material submitted in writing by the appellant's advisers, the oral evidence and material specifically in response to the s 424A letter from the Tribunal to the appellant. If the contention really is that the Tribunal did not conclude that the appellant held a well-founded fear of persecution as claimed, the contention is a complaint about the merits. In effect, the appellant asks, why did the Tribunal not accept my claim to a well-founded fear of persecution?