Akb16 v Minister for Immigration
[2018] FCCA 1308
•25 May 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AKB16 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1308 |
| Catchwords: MIGRATION – Application for review of Administrative Appeals Tribunal decision – whether the Tribunal’s decision was illogical or unreasonable – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 476 |
| Cases cited: SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71; (2013) 212 FCR 235 SZTSC v Minister for Immigration and Border Protection [2017] FCA 1032 |
| Applicant: | AKB16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 389 of 2016 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 27 November 2017 |
| Date of Last Submission: | 27 November 2017 |
| Delivered at: | Sydney |
| Delivered on: | 25 May 2018 |
REPRESENTATION
| Solicitors for the Applicant: | Mr C Hearn of Hearn Legal |
| Counsel for the Respondents: | Ms K Pham |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application made on 23 February 2016 and amended on 27 November 2017 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $6,000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 389 of 2016
| AKB16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 23 February 2016, seeking review of the decision of the Administrative Appeals Tribunal (“the Tribunal”) which, on 28 January 2016, affirmed the decision of the Minister’s delegate (“the delegate”) to refuse a protection visa to the applicant.
In evidence before the Court is a bundle of relevant documents filed by the Minister and tendered by the applicant (“the Court Book” – “CB”, “AE1”), the affidavit of the applicant made on 15 June 2016 attaching a transcript (“T”) of the hearing before the Tribunal, and the affidavit of Mairi Petersen made on 24 November 2017.
Background
The applicant claimed to be a citizen of Bangladesh (CB 22). He first arrived in Australia on 27 May 1996 as the holder of a tourist visa (CB 211.3). He applied for the protection visa (the subject of the current application to the Court) which was received by the Minister’s department on 3 October 2012 (CB 1 to CB 37). The application was initially determined to be invalid by an officer of the Minister’s department as the applicant had previously been refused a protection visa on 9 April 1997 (CB 38 to CB 39). However, following the subsequent decision of the Full Federal Court in SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71; (2013) 212 FCR 235 the applicant’s application could be considered under s.36(2)(aa) of the Act.
The applicant claimed to fear harm on the basis of his Hindu religion. As mentioned above, the applicant claimed to be a citizen of Bangladesh which is an “Islamic state where minorities face significance (sic) harm”. The applicant claimed that “country information” indicates that “Islamic fundamentalism and Taliban influence” were growing in Bangladesh, and that people of Hindu religion face “harassment, discrimination and degrading treatment at the hands of Islamic fundamentalists”. Further, he claimed to not be able to avail himself of adequate state protection as the “Islamic fundamentalists have influence among [the] authorities”, and that he cannot safely relocate within Bangladesh because Islamic fundamentalists are present throughout Bangladesh (see question 43 at CB 27).
Regarding the applicant’s claims to fear harm, his protection visa application indicated that there would be a “detailed statement to follow” (see questions 42 at CB 27 to 48 at CB 30). The applicant’s representative sent further documents to the Minister’s department on 21 October 2013 and 24 June 2014 (CB 43 to CB 46 and CB 47 to CB 70). Further correspondence of 24 June 2014 from the applicant’s representative to the Minister’s department indicated that the applicant would not be providing a further written statement to the Minister’s department in support of his application (CB 71.5).
The applicant attended an interview with the delegate on 8 July 2014 (CB 213.8). The applicant’s representative sent further document to the Minister’s department following the interview on 9 July 2014 and 22 July 2014 (CB 96 to CB 184 and CB 185 to CB 199). The documents sent on 9 July 2014 contained a further claim to what was initially set out in his protection visa application, that the applicant feared harm on the basis of an imputed political opinion ([14] at CB 271).
The correspondence of 22 July 2014 included a Statutory Declaration of the applicant’s dated 16 July 2014, stating that he was a citizen of Bangladesh born on 20 January 1955, but moved to India in 1991 as a result of “persecution as Hindu’s (sic)” in Bangladesh. He claimed to have subsequently used an “Indian broker” to obtain an Indian passport as he had no official Bangladeshi identity documents (CB 192 to CB 194).
The delegate refused the application for the visa on 18 August 2014, and the applicant was notified by letter of the same date (CB 200 to CB 217). The delegate found that the applicant was not a citizen of Bangladesh as he had claimed, but was a citizen of India (CB 210.8). The delegate therefore found that his claims to protection were not credible (CB 214.7).
The applicant applied for review to the Tribunal on 26 August 2014 (CB 218 to CB 219). The applicant was invited to, and attended a hearing before the Tribunal on 1 July 2015 (CB 220 to CB 224 and CB 234 to CB 237). Ms Mairie Petersen, a “support person” of the applicant, also attended the hearing and gave evidence. The applicant’s representative provided country information and written submissions to the Tribunal following the hearing on 23 July 2015, 13 August 2015 and 14 August 2015 (CB 245 to CB 262).
The Tribunal affirmed the delegate’s decision on 28 January 2016 and the applicant was notified by letter of the same date sent to his authorised representative (CB 265 to CB 281). The Tribunal was satisfied that the applicant was a citizen of Bangladesh ([25] at CB 274 to [32] at CB 275). Further, the Tribunal found that the applicant had applied for a Bangladeshi passport in 2010, but that that application was “still being processed” ([35](g) at CB 276). Therefore, contrary to the applicant’s representative’s submission (made in the alternative), the applicant was not a “stateless person” (see [21] at CB 272 and [32] at CB 275).
The Tribunal set out a number of factual findings in relation to the applicant’s claims at [35](a) – (g) (at CB 276) of its decision record. This included a finding that the applicant had returned to Bangladesh in 2010 ([35](f) at CB 276).
Further, at the Tribunal hearing, Ms Petersen submitted that the applicant was 60 years old, he had suffered a heart attack and therefore would be unable to obtain employment in Bangladesh. As a result, Ms Petersen submitted that the applicant “would be deprived of life due to lack of employment and starvation”, and also would not be able to access medical facilities. Ms Petersen submitted that “these matters … fell within the definition of significant harm”. Further, that with no family and no home in Bangladesh, this would lead to the applicant’s “death” and would come within the meaning of “arbitrary deprivation of life” as defined in the Act ([24] at CB 274).
The Tribunal did not accept these claims. The Tribunal did not consider the applicant’s age or health an impediment to him finding employment in Bangladesh as he had been employed while in Australia “almost continuously”. There was no reason to find that the applicant could not work in similar positions on return to Bangladesh. The Tribunal did not accept that the applicant “would be deprived of his life” or that he would be unable to access medical facilities as claimed. Further the claims were “generalised” and did not come within the definition of “significant harm” contained in the Act ([36] at CB 276).
The Tribunal considered that the applicant’s oral evidence was consistent with his written claims ([35] at CB 276). However, the Tribunal noted that the country information provided in the applicant’s representative’s correspondence of 9 July 2014 pre-dated other country information before the Tribunal, in some parts, “by over ten years”. For this reason, the Tribunal placed “great weight” on the more recent country information ([50] at CB 280).
The more recent country information did not mention that Hindus face harm in Bangladesh as a result of any imputed political opinion arising from their faith, or because of the recent rise in extremism ([47] at CB 279). Further, recent country information indicated that the Hindu community in Bangladesh “do not live in fear of societal violence on a day-to-day basis” due to the practice of their faith ([50] at CB 280).
The Tribunal did not accept that the applicant faced a real risk of harm on return to Bangladesh for the reasons that he claimed and affirmed the delegate’s decision on the basis that he did not meet the criterion in s.36(2)(aa) for the grant of the visa ([52] – [54] at CB 281).
Before the Court
The parties first appeared before a Registrar of the Court on 7 April 2016. On that date, orders were made by consent, which, amongst other things, gave the applicant the opportunity to file any amended application and further evidence by way of affidavit. As mentioned above, the applicant filed an affidavit made by him on 15 June 2016 attaching a transcript of the Tribunal hearing. I note the affidavit was filed outside the time stipulated by the Court’s orders. [However, no objection to the reading of the affidavit was taken by the Minister and the affidavit is in evidence before the Court.]
The parties next appeared before a Registrar of the Court on 25 August 2016 and orders were made giving the parties the opportunity to file written submissions before the hearing, which was set down for 27 November 2017. The applicant did not file written submissions in the time stipulated by the order. The Minister filed written submissions on 20 November 2017.
On 23 November 2017 a solicitor filed a Notice of Appearance on behalf of the applicant. The following day, three days before the hearing, the applicant filed an amended application, the affidavit of Ms Petersen and written submissions (“the applicant’s first written submissions”). The applicant filed a second set of written submissions at the final hearing (“the applicant’s second written submissions”).
At the hearing before the Court the applicant was represented by a solicitor who advised he had only recently received instructions in the matter. The Minister was represented by counsel.
The Application to the Court
The applicant sought leave to proceed on the amended application. The grounds of the originating application were not pressed. The Minister did not oppose the leave, and leave was granted. The sole ground of the amended application is in the following terms:
“GROUND ONE:
The Administrative Appeals Tribunal (AAT) has made a decision so illogical or unreasonable that no reasonable decision maker would have made it.
Particulars
1. The AAT held at paragraph 22(f) of the decision that the Applicant had ‘returned to Bangladesh in, he thinks, July 2010’, that ‘he was trying to recover his property but was not successful at the time’ and that he ‘he (sic) did not receive any threats or suffer harm on that visit’.
2. Scrutiny of the transcript decision demonstrates that this exchange did not occur.
3. Logan J held in SZRHL v Minister for Immigration and Citizenship [2013] FCA 1093 at [34] that the adjectives ‘ignorant’, ‘arbitrary’ and ‘perverse’ aptly apply to a process of reasoning which damns a man’s credibility by reference, materially, to a false factual premise.”
At the final hearing, the applicant’s solicitor advised that regard should be had to his second written submissions, as the first written submissions were an earlier draft.
The applicant directed attention to [22](f) (at CB 273) and [35](f) (at CB 276) of the Tribunal’s decision record as follows:
“[22] At the hearing the applicant told the Tribunal the following relevant matters:
…
(f) he returned to Bangladesh in, he thinks, July 2010. He was trying to recover his property but was not successful at the time. He did not return to his local village. That he did not receive any threats or suffer harm on that visit;
…
[35] … broadly speaking I consider that the applicant gave oral evidence consistent with his written claims of harm based on being a Hindu in Bangladesh, and make the following findings:
…
(f) the applicant returned to Bangladesh in about July 2010. He did not return to his local village. He did not receive any threats or suffer harm on that visit.”
Further, the applicant directed attention to T32 line 24 to line 28:
“Interpreter: I got the book – means passport – in 92 and after that I went to Bangladesh with an intention to see if I could sell any of my landed properties or something but when I went to Dhaka there’s no luck with selling of property. I didn’t even, you know, go to Chandpur. My Project was not successful. I came back.”
This was the applicant’s answer given through the interpreter to the question from the Tribunal member, “[s]o when did you visit Bangladesh?” (T32 line 22).
The applicant’s submission was that this was the “totality” of the relevant evidence given by the applicant to the Tribunal. There was nothing in that evidence, or any other evidence before the Tribunal, about the applicant returning to Bangladesh in 2010.
The applicant’s submission was that the “question” of the applicant’s return to Bangladesh in 2010 went to “the core of the issue” the Tribunal was considering. That issue was described before the Court as being whether the applicant “held fears”, and “whether or not there was in fact a risk of significant harm” on return (with reference to T3 line 32 to line 35).
The applicant also drew attention to [50] (at CB 280) of the Tribunal’s decision record which states:
“Based on the applicant’s own evidence, and the country information [on] which he relies, the Tribunal does not accept, and does not find, that there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Bangladesh, there is a real risk he will suffer significant harm…”
In short, the applicant’s complaint was that the Tribunal placed weight on what it said the applicant had said, about returning to Bangladesh in 2010. This was in circumstances where there was no evidence to support the proposition that the applicant ever stated he returned to Bangladesh in 2010. The Tribunal’s reliance on this was a critical part of its reasoning leading to its conclusion that he would not face harm if he returned to Bangladesh.
To make good his assertion that the Tribunal’s decision was illogical and unreasonable, the applicant referred to a number of authorities.
First, SZTSC v Minister for Immigration and Border Protection [2017] FCA 1032 (at [69]):
“I am satisfied that the Tribunal has reached a conclusion that it cannot be satisfied that the appellant has a well-founded fear of persecution as a Hazara Shia should he return to Afghanistan, on the basis of incorrect facts entirely unrelated to the ‘individual circumstances’ of the appellant in circumstances where those incorrect facts were material to the decision reached by the Tribunal (because it says those facts support its findings). Similarly, I am satisfied that on the basis of incorrect facts entirely unrelated to the individual circumstances of the appellant and material to the decision, the Tribunal has reached a conclusion that it cannot be satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the appellant being removed from Australia to Afghanistan, there is a real risk that he will suffer significant harm, and thus Australia does not owe protection obligations to the appellant.”
The submission was that the Tribunal’s “incorrect fact” (that the applicant returned to Bangladesh in 2010), was material to the decision as a whole and therefore the decision was illogical and unreasonable.
Second, SZRHL v Minister for Immigration and Citizenship [2013] FCA 1093; (2013) 136 ALD 641 per Logan J (at [34]):
“As I opined by reference to earlier authority in SZLGP v Minister for Immigration and Citizenship [2009] FCA 1470; (2009) 181 FCR 113 at [37], ‘the adjectives ‘ignorant’, ‘arbitrary’ and ‘perverse’ aptly apply to a process of reasoning which damns a man’s credibility by reference, materially, to a false factual premise’. That is this case. The process of reasoning that led to the damning of the first appellant’s credibility by the Tribunal was premised upon the basis that a reference to a ‘false case’ laid against him in the courts of Bangladesh had only emerged belatedly, as opposed to when the visa application was made. That premise was not peripheral.”
The submission was that similarly, in the current case, the applicant’s credibility was “damned” by a material reference to a false premise.
Third, Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332; (2013) 139 ALD 181; (2013) 297 ALR 225
(at [68]):
“…The legal standard of unreasonableness should not be considered as limited to what is in effect an irrational, if not bizarre, decision – which is to say one that is so unreasonable that no reasonable person could have arrived at it…”
Fourth, Kruger v The Commonwealth [1997] HCA 27; (1997) 190 CLR 1; (1997) 146 ALR 126; (1997) 71 ALJR 91 (at 36):
“…when a discretionary power is statutorily conferred on a repository, the power must be exercised reasonably, for the legislature is taken to intend that the discretion be so exercised”.
[Footnotes omitted.]
Fifth, Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1; (2016) 329 ALR 491
(at [3] – [6]):
“[3] These words and phrases express a rule that is directed to the limits of the exercise of power, and, because of that function, are necessarily expressed as abstractions applying to the infinite variety of decision-making under variously expressed statutory provisions, in a wide variety of legal contexts.
[4] In Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332, the High Court made clear that legal reasonableness or an absence of legal unreasonableness was an essential element in the lawfulness of decision-making; Parliament is taken to intend that statutory power will be exercised reasonably: see Li at [26] and [29] (French CJ), [63] (Hayne, Kiefel and Bell JJ) and [88] (Gageler J).
[5] These statements of general principle in the three judgments (French CJ, and Hayne, Kiefel and Bell JJ, and Gageler J) variously drew upon and drew together a number of well-known expressions and bodies of principle including, and without repeating all citations: the Constitutional necessity for legal control of discretion (power): Shrimpton v The Commonwealth [1945] HCA 4; 69 CLR 613 at 629-630; the necessary confinement, explicit or implicit, of any statutory discretion or power by the subject matter, scope and purpose of the legislation: Water Conservation and Irrigation Commission (NSW) v Browning [1947] HCA 21; 74 CLR 492 at 505; the implied legislative intention to condition statutory discretionary power by a requirement that it be exercised reasonably: Kruger v The Commonwealth [1997] HCA 27; 190 CLR 1 at 36; Abebe v The Commonwealth [1999] HCA 14; 197 CLR 510 at 554 [116]; Shrimpton at 620; South Australian Commissioner for Prices and Consumer Affairs v Charles Moore (Aust) Limited [1977] HCA 38; 139 CLR 449 at 466; and Minister for Aboriginal Affairs v Peko Wallsend Limited [1986] HCA 40; 162 CLR 24 at 41-42; the necessity that a discretion be exercised according to the rules of reason and justice, not private opinion, according to law, and not humour, and within the limits that an honest and competent person would confine herself that is ‘legal and regular, not arbitrary, vague and fanciful’: Sharp v Wakefield [1891] AC 173 at 179; Shrimpton at 620; R v Anderson; Ex parte
Ipec-Air Pty Ltd [1965] HCA 27; 113 CLR 177 at 189; Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; 198 ALR 59 at 62 [9]; the illegitimacy of the exercise of a discretion in reaching a conclusion that no reasonable person could ever come to: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 229, or where no sensible decision-maker acting with due appreciation of his or her responsibilities would so decide: Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 at 1064; the requirement that the satisfaction or opinion of a decision-maker about the existence of a matter, in particular a jurisdictional fact, be reasonably formed: Council of the Municipality of Bankstown v Fripp [1919] HCA 41; 26 CLR 385 at 403; R v Connell; Ex parte Hetton Bellbird Collieries Ltd [1944] HCA 42; 69 CLR 407 at 430; Buck v Bavone [1976] HCA 24; 135 CLR 110 at 118 - 119, (though not referred to in Li, Starke J in Boucaut Bay Company Limited (in liq) v The Commonwealth [1927] HCA 59; 40 CLR 98 at 101, approved by Windeyer J in Commissioner of Taxation of the Commonwealth of Australia v Brian Hatch Timber Co (Sales) Pty Ltd [1972] HCA 73; 128 CLR 28 at 57, said that reasonableness here meant not dishonestly, capriciously or arbitrarily and upon a rational ground for the belief); the settled principles of appellate review of judicial discretion in House v The King [1936] HCA 40; 55 CLR 499, and the guidance found therein in the analogy with judicial review of administrative action: Minister for Aboriginal Affairs v Peko-Wallsend Limited 162 CLR 24 at 42; the principle that it is open to infer legal error if the result of the decision appears unreasonable assuming the correct question was addressed and the law was followed in the making of the decision: Avon Downs Proprietary Limited v Federal Commissioner of Taxation [1949] HCA 26; 78 CLR 353 at 360; the principle concerned with unreasonableness in the exercise of delegated law making power – if such laws were partial and unequal or manifestly unjust, or by operation they involved oppressive or gratuitous interference with rights that could not be reasonably justified: Kruse v Johnson [1898] 2 QB 91 at 99-100; and the fact that the conditioning of a power to be exercised reasonably has an analogy with the conditioning of the power with the obligation to afford procedural fairness: Gageler J in Li at [92].
[6] Each of the judgments in Li sought to give explanatory content to the concept of legal unreasonableness. As was discussed in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; 231 FCR 437, the judgments in Li identified two different contexts in which the concept of legal unreasonableness was employed: a conclusion after the identification of jurisdictional error for a recognised species of error, and an ‘outcome focused’ conclusion without any specific jurisdictional error being identified: Singh at [44].”
The Minister conceded that the Tribunal made an incorrect factual finding as asserted by the applicant.
The issue then becomes whether this “incorrect factual finding” was material to the Tribunal’s decision, or “infected” the Tribunal’s reasoning such as to render its decision illogical or unreasonable in the way explained by the relevant authorities.
This directs attention to the applicant’s claims to fear harm, and the Tribunal’s reasoning and the findings that informed its decision.
For current purposes, it is relevant to note the applicant’s own expression of why he feared harm if he were to return to Bangladesh. With reference to that question in his protection visa application (see question 45 (at CB 28) and as it relates to question 43 (at CB 27) the applicant stated (CB 27.7):
“I am a Hindu from Bangladesh. Bangladesh is an Islamic state where minorities face significance (sic) harm. I fear that I will face a real risk of harm including torture, inhuman and degrading treatment because of my religious belief. Recent country information from Bangladesh indicates that Islamic fundamentalism and Taliban influence are fast growing in Bangladesh. The reports further indicate that Hindus continue to face harassment, discrimination and degrading treatment at the hands of Islamic fundamentalists. I fear I will not get adequate state protection in Bangladesh because Islamic fundamentalists have influence among authorities. In addition, I cannot safely relocate to other parts of Bangladesh, because Islamic fundamentalists have presence throughout Bangladesh. I fear I will be deprived of right to practice my religion.”
In essence, the applicant feared harm because he said he was a Hindu, a religious minority in a predominantly Muslim country, which contained Islamic fundamentalists.
That remained the nature of the applicant’s claim as it was presented before the Tribunal. The Tribunal found that his oral evidence was “consistent with his written claims of harm based on being a Hindu in Bangladesh” ([35] at CB 276). There was nothing from the applicant before the Court to take issue with this finding.
In this context, the Tribunal made a number of findings of fact at [35](a) - (g) (at CB 276) which included the impugned finding at [35](f).
It is to be remembered that the Tribunal’s consideration was focused on the criterion at s.36(2)(aa) of the Act (SZGIZ and see [5] – [6] at CB 269).
The Tribunal found that the applicant had travelled to Australia as the holder of an Indian passport ([22](d) at CB 273 and see CB 23). However, the Tribunal found that ([30] at CB 275):
“…the receiving country for the purposes of the applicant’s complementary protection claims is Bangladesh”.
This was reasonably open to the Tribunal on what was before it. However, the applicant does not seek to impugn this finding in the current proceedings.
In this light, the Tribunal understood the characterisation of the applicant’s claims as ultimately put to it, to be that he feared he would suffer significant harm for reason of his religion (as part of the Hindu minority in a Muslim country), and the imputation of a political opinion being that he held political opinions (because of his Hindu background) against the state religion of Bangladesh, and against Bangladesh’s political instrumentalities ([44] at CB 277).
The Tribunal had regard to a Department of Foreign Affairs and Trade (“DFAT”) country report for Bangladesh dated 20 October 2014. The parts that the Tribunal considered relevant, that is, those dealing with “[r]eligion”, “Hindus”, societal violence (in Bangladesh) against Hindus, and political rivalry in Bangladesh are at [45] (at CB 278) to [46] (at CB 279).
In light of this country information, the Tribunal stated that ([47] at CB 279):
“It is to be noted that there is no mention in the [DFAT] Report that Hindus by reason of their religion face harm in Bangladesh because of (imputed) political opinion arising from their faith (holding political opinions against the parties passively or actively promoting Islam as the state religion of Bangladesh), or because of the recent rise of IS and Islamic extremism”.
The Tribunal also had regard to country information provided by the applicant’s representatives in submissions of July 2014 (at [48] at CB 280).
The Tribunal understood the applicant’s representative’s submissions to rely on this country information, and to assert the following
([49](a) – (c) at CB 280):
“(a) Islamic fundamentalism and extremism is growing in Bangladesh
(b) Islamic fundamentalists have well connected networks with the international Taliban, have considerable presence in Bangladesh and want to establish Sharia law there;
(c) Islamic fundamentalist groups have significant influence among the major political parties in Bangladesh and therefore, there is a real chance that they have influence among the authorities.”
As set out above, the applicant’s ground focuses on the Tribunal’s finding at [50] (at CB 280) of its decision record. The entire paragraph is in the following terms:
“Based on the applicant’s own evidence, and the country information [on] which he relies, the Tribunal does not accept, and does not find, that there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Bangladesh, there is a real risk he will suffer significant harm because of his religion, because of political opinion that may be attributed to him because of that religion, or because of the recent rise of Islamic fundamentalism in Bangladesh. All of the information relied on in the submissions of 9 July 2014 predates the DFAT Country Report (in some instances by over ten years), the recency of which 1 place great weight. In that respect, l note that the DFAT Report states at 3.29 that DFAT assesses that Bangladesh is generally able to provide adequate protection to the Hindu community from societal harassment or violence, and that failures to do so are not a sign of systemic or deliberate neglect but rather of a lack of resources and capacity. The Hindu community is generally able to practise their faith without interference and do not live in fear of societal violence on a day-today basis.”
The Tribunal also considered written submissions made on behalf of the applicant on 13 August 2015 (at [51] at CB 280). While the Tribunal found that there was some material that supported the proposition that Islamic fundamentalism was growing in Bangladesh, there was nothing in the applicant’s submissions to “link that factor with any harm that may be faced by the applicant” ([51] at CB 280).
The Tribunal therefore concluded that the applicant did not satisfy s.36(2)(aa) of the Act (having regard to s.36(2A) of the Act) for the grant of the protection visa.
The applicant’s ground contends that the Tribunal fell into jurisdictional error because its incorrect factual finding at [22](f) (at CB 273) of its decision record, was material to its reasoning and conclusion, such as to render the decision illogical or unreasonable.
What appears at [22](f) (at CB 273) is part of the Tribunal’s report of what occurred at the Tribunal hearing. The actual finding made by the Tribunal is at [35](f) (at CB 276). However, it is relevantly similar. The reference to 2010 is identical.
On the evidence before the Court, the applicant did give evidence that he returned to Bangladesh in 1992 (T32 line 24). In any event, there was no evidence from the applicant, or otherwise, to say he returned in 2010. Other evidence before the Court now would indicate that this was in August 1994 (CB 79 and CB 208.4).
At the Tribunal hearing, the applicant’s evidence was that he obtained the passport “in 92 and after that [he] went to Bangladesh” (T32 line 24 to line 25). The reason the applicant gave for this, was to see if he could sell any of his properties. His evidence was that although he was unsure, he stayed in Bangladesh seven or ten days (T32 line 39).
I also note the following (T32 line 42 to T33 line 2):
“[Tribunal Member]: Did you suffer any harm or threats or was there anything that you need to tell me about that visit?
Interpreter: I was in Dhaka. I didn’t even go to Chandpur. So there was no unhappy incident.”
For current purposes, given the evidence above, the Tribunal’s impugned finding was incorrect to the extent of the year of the applicant’s return to Bangladesh. It was reasonably open to the Tribunal, given the applicant’s own evidence, to find that he did not receive any threats or suffer harm on his visit to Bangladesh, whenever that had occurred.
Before the Court, the applicant’s submission was that the Tribunal’s factual error affected the Tribunal’s assessment of the applicant’s credibility.
That submission must be rejected. The Tribunal did not make any material adverse finding as to the applicant’s credibility.
As noted above, the Tribunal found that the applicant had given oral evidence consistent with his written claims ([35] at CB 276). On any plain, let alone a fair reading of the Tribunal’s analysis and findings, the Tribunal’s decision (its conclusion) arose from its assessment of the applicant’s claim to fear harm, in light of country information before it, which included country information given to the Tribunal by the applicant.
The applicant also argued before the Court that the Tribunal took into account that factual error (at [35](f) at CB 276) in the entirety of its analysis.
That argument was as follows. At [34] (at CB 275) of its decision record (under the heading of “Findings”), the Tribunal stated that it “must first make findings of fact on the claims made”.
At [35] (at CB 276) the Tribunal set out what those findings of fact were said to be. This included the incorrect finding at [35](f) (at CB 276).
The applicant’s argument was that the Tribunal then engaged in the process of determining whether there was a real risk of significant harm. In this subsequent analysis, the Tribunal “relied” on the findings of fact that it had previously set out. That included the finding that the applicant had returned to Bangladesh in 2010.
Tribunal decisions are meant to be read fairly. As the High Court made clear in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 136 ALR 481 (at [30]), they are not meant to be read “with an eye keenly attuned to the perception of error”.
Notwithstanding that the Tribunal made a factual error at [35](f) (at CB 276), there is nothing in the subsequent analysis, to indicate, let alone demonstrate, that this factual error was relied on by the Tribunal, or somehow otherwise infected, or affected, its analysis.
The applicant’s argument before the Court overlooks, or chooses to ignore, one very important factor.
As the Minister’s counsel before the Court correctly submitted, the applicant’s claims to fear harm were made at a particular level of generality.
The applicant’s claim to fear harm on return to Bangladesh was said to emanate from Islamic fundamentalists because he was a Hindu in a majority Muslim country and as a result, would be perceived to hold anti-Muslim (and anti-State) opinions.
His evidence by way of country information in support of this assertion, was concerned with persecution by Islamic fundamentalists of the Hindu minority, the volatile political situation, and the influence of Islamic fundamentalists amongst political parties in Bangladesh.
The applicant had claimed to have left Bangladesh in 1991 because of an “assault” on him and his brother, by people he assumed to be Muslims. The applicant was not harmed as a result of this assault.
There was nothing from the applicant in his claims to say that on return he would be targeted by Muslims, or anyone else for that matter, because of anything personal, other than he was a Hindu (a minority in a predominantly Muslim country which had Islamic fundamentalists).
In finding that he would not suffer significant harm on return, the Tribunal dealt with the applicant’s claim to fear harm as it was made. Before the Court, the applicant made no submission, nor was his ground to the effect that the Tribunal misunderstood or failed to deal with his claim.
Whether the applicant returned to Bangladesh in 2010, or for that matter, in 1992 or in 1994 (as appears to have been otherwise suggested), did not, on a fair reading, play any part in the Tribunal’s decision. That is, its conclusion as to why it was not satisfied that the applicant’s claims gave rise to the likelihood of significant harm in the reasonably foreseeable future if he were to return.
The factual premise underlying the applicant’s ground was that the factual error affected, and was “part of”, the Tribunal’s analysis as to why the applicant would not suffer significant harm. This premise is not made out.
Conclusion
The applicant’s ground is not made out. It is appropriate to refuse the application as amended. I will make the appropriate order.
I certify that the preceding seventy-nine (79) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Date: 25 May 2018
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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