ALZ17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2023] FedCFamC2G 273
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
ALZ17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FedCFamC2G 273
File number(s): SYG 326 of 2017 Judgment of: JUDGE MANOUSARIDIS Date of judgment: 14 April 2023 Catchwords: MIGRATION – application for extension of time under s 477(2) of the Migration Act 1958 (Cth) (Act) in relation to decision of Administrative Appeals Tribunal (Tribunal) affirming decision not to grant a protection visa – order made – whether leave should be granted to permit applicant to rely on grounds 2 and 3 of draft further amended application – leave granted – whether the Tribunal failed to consider a claim – whether the Tribunal failed to consider country information – application dismissed. Legislation: Migration Act 1958 (Cth) ss 36(2)(a), 36(2)(aa), 45AA, 476, 477(1), 477(2)
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) Pt 2, Sch 2
Migration Regulations 1994 (Cth) reg 2.08F
Cases cited: BYN18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 63
MZABP v Minister for Immigration and Border Protection [2015] FCA 1391
SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284
Tuberi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1029
Division: General Number of paragraphs: 46 Date of hearing: 10 February 2022 Place: Sydney Counsel for the Applicant: Mr L Karp, by video Solicitor for the Applicant: Legal Aid NSW Counsel for the First Respondent: Mr G Johnson, by video Solicitor for the First Respondent: HWL Ebsworth Lawyers ORDERS
SYG 326 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ALZ17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE MANOUSARIDIS
DATE OF ORDER:
14 april 2023
THE COURT ORDERS THAT:
1.The name of the first respondent be changed to “Minister for Immigration, Citizenship and Multicultural Affairs”.
2.Pursuant to s 477(2) of the Migration Act 1958 (Cth) (Act) the 35 day period prescribed by s 477(1) of the Act for making an application for relief under s 476 of the Act in relation to the decision of the second respondent made on 23 December 2016 is extended up to 6 February 2017.
3.The applicant is granted leave to file a further amended application in the form of the draft annexed to the affidavit of Hannah Gray made on 26 November 2021, but omitting ground 1 of the draft.
4.By 21 April 2023 the applicant file and serve the further amended application.
5.The application is dismissed.
6.Order 5 is not to take effect until 4:00 pm on 21 April 2023.
7.Subject to order 8, the applicant pay the first respondent’s costs set in the amount of $8,371.30.
8.The parties have liberty to apply within 21 days after the day on which these orders are pronounced for an order varying or discharging order 7.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION
By an application filed on 6 February 2017 the applicant, a national of Bangladesh, applies for an order under s 477(2) of the Migration Act 1958 (Cth) (Act) to extend the 35 day period prescribed by s 477(1) of the Act for making an application to this Court for remedies under s 476 of the Act in relation to a decision made by the second respondent (Tribunal) on 23 December 2016. By that decision the Tribunal affirmed the decision made by a delegate of the first respondent (Minister) not to grant the applicant a Protection (Class XD) visa (Protection visa).
At the commencement of the hearing I suggested to counsel for the parties, and counsel agreed, that I should hear both the application for an order under s 477(2) of the Act, and the merits of the application, assuming an order under s 477(2) of the Act is made.
CLAIMS FOR PROTECTION
The applicant is a citizen of Bangladesh. He arrived by boat on 26 April 2013.[1]
[1] CB155, [11]
On 24 July 2013 the applicant lodged an application for a Protection (Class XA) visa. By operation of s 45AA of the Act and reg 2.08F of the Migration Regulations 1994 (Cth), the application is taken to be, and from 16 December 2014 to have always been, a valid application for a Temporary Protection (Class XD) visa.
The applicant stated his claims for protection in a statutory declaration (SD) that formed part of his application for a Protection visa. The applicant claimed as follows:[2]
[2] CB42-46
(a)The applicant is an ethnic Bangladeshi and a Hindu.
(b)The applicant was born in a majority Sunni Muslim village. Most of those residing in the village are Awami League supporters.
(c)Approximately six years before the applicant made his statutory declaration, the applicant’s father, who was a street vendor, was verbally and physically assaulted by other Sunni Muslim vendors because he was a Hindu. The applicant’s father was forced to stop working in the bazaar “thereafter as his life was in danger”.
(d)The applicant’s family’s life was extremely hard after the applicant’s father stopped working. The applicant’s older brother helped the applicant’s family every now and then, but the money he gave was barely enough to survive on.
(e)The applicant and his family also faced several other problems. Approximately once or twice a month, the Muslims in the village would come to the applicant’s family’s residence and “force us to pay them money”. The applicant’s family feared reporting the extortion because the majority in the village were either members, supporters, or had links to the Awami League. On average the applicant and his family have been paying 5,000 to 10,000 takas per month for several years.
(f)Sometime in December 2012 the applicant was physically assaulted by one of the Muslim men (Mr B) because the applicant argued with Mr B and refused to pay him the sum of money demanded. The “men” left and threatened to harm the applicant if the money was not paid “to them”.
(g)Sometime in January 2013, while the applicant was in the village sitting beside the road, Mr B and two other Muslim males came towards the applicant and asked the applicant to give them some money. The men began to punch the applicant when he told them he did not have any money on him. The applicant retaliated by grabbing a stick and striking the head of one of the Muslim men whose head began to bleed. While the other two Muslim men attended to the injured man, the applicant escaped from the village.
(h)The applicant fled to his brother’s village, where the applicant stayed for approximately one month. The applicant then moved to another village (Village G) because he feared that Mr B and the other Muslim men would harm him. While he was staying with his brother, the applicant learnt that Mr B and the other Muslim males had come to the applicant’s residence in his village several times. The men told the applicant’s mother they would kill the applicant if he returned to his village.
(i)While the applicant was in Village G, one of the applicant’s friends encouraged the applicant to join an Islamic political party, Shibir. The applicant’s friend assured him Shibir would protect the applicant, even though he was a Hindu. While in Village G the applicant joined Shibir, and he attended a few political meetings.
(j)The applicant soon realised that Shibir was unable to provide Hindus like the applicant protection from Muslim extortionists and Awami League supporters. In late March 2013, while the applicant was at a student hostel in Village G, several members of the Awami League, together with Bangladeshi police officers, stormed the hostel premises and arrested a few senior political members of Shibir. The applicant and his friend escaped, and the applicant fled to Chittagong.
(k)The applicant eventually arrived in Darwin in April 2013 after having fled Bangladesh in early April 2013.
(l)The applicant fears that if he returns to Bangladesh he will be harmed by members of the Awami League because of his involvement with Shibir which is closely linked to Jamath-e-Islami; and that he will be seriously harmed and killed by Mr B and the other extortionists who also are Awami League supporters because the applicant had struck one of them.
TRIBUNAL’S REASONS
The Tribunal was not satisfied:[3]
(a)the applicant or his family were extorted by Mr B and other Muslim individuals in the applicant’s village who attacked the applicant when he did not pay, with the applicant hitting Mr B;
(b)the applicant fled his village for any reason;
(c)Mr B and “these individuals” were searching for the applicant, whether in his home village, the applicant’s brother’s village, or elsewhere;
(d)the applicant became involved with Shibir and had to escape a hostel when the Awami League and authorities were looking for the applicant, his friend, and others due to their involvement with Shibir; and
(e)the applicant is of adverse interest to authorities in Bangladesh because of his involvement with Shibir or any other political party.
[3] CB165, [52]
On the basis of these findings the Tribunal further found it was not satisfied “there is a real chance of the applicant facing serious or significant harm on return to Bangladesh as a result of [Mr B] and other Muslim males wanting to harm the applicant due to him or his family not paying money to them and/or due to past physical altercations, or due to the applicant’s political involvement”.[4]
[4] CB165, [54]
The Tribunal did not accept these claims because of “the cumulative impact of . . . six credibility concerns”,[5] which led the Tribunal to consider that the applicant has not been a truthful witness.[6] Those credibility concerns were as follows:
(a)The claims the applicant made at his entry interview on 3 May 2013 are materially different from the claims he made in the SD. In the entry interview the applicant claimed he had been attacked by the leader of the applicant’s village because he had joined Shibir; and that the last attack occurred in the middle of February. In the SD the applicant claimed he fled his village in January 2013 and decided to join Shibir when he was at his brother’s village.[7]
(b)The applicant had not been consistent about the number of physical attacks Mr B and his cohort inflicted on the applicant. In the SD the applicant referred to an assault in December 2012, and an assault in January 2013. During the hearing before the Tribunal, the applicant said he had been assaulted only in January 2013.[8]
(c)The applicant made inconsistent claims about the number of individuals who attacked the applicant in January 2013. Before the delegate the applicant said there were three individuals, and the applicant gave evidence about how these three individuals restrained and attacked the applicant. Before the Tribunal, on the other hand, the applicant said there were four to five individuals. The Tribunal noted that while it was understandable there could be confusion about the exact number of people perpetrating an attack due to “the impactful nature of the event and fear”, the applicant was very specific in the interview before the delegate that the attack was perpetrated by three individuals “with specific evidence as to details of the attack and the involvement of these three attackers”.[9]
(d)There was a lack of consistency in the applicant’s claims relating to Mr B and his Muslim cohorts searching for the applicant after the attack in January 2013. In the SD the applicant claimed Mr B and his cohorts searched for the applicant at his family’s residence after the applicant had fled to his brother’s village; whereas before the delegate and the Tribunal the applicant claimed these people also came looking for the applicant at his brother’s village, including at the applicant’s brother’s shop.[10]
(e)The applicant had given inconsistent evidence about where he stayed when he was at his brother’s village. In the SD, and before the delegate, the applicant claimed he had stayed at his brother’s house for approximately one month. Before the Tribunal, however, the applicant said he constantly had to relocate within his brother’s village because he was being looked for.[11]
(f)The applicant did not display a knowledge of Shibir that was consistent with his claimed involvement. When the Tribunal asked the applicant to tell it all he knew about Shibir, the applicant said he did not have any knowledge of the Shibir party other than that it was a Muslim party. The Tribunal noted that Shibir is the student wing of Jamaat-e-Islami, being the prominent militant Muslim political organisation in Bangladesh.[12]
[5] CB165, [52]
[6] CB166, [55]
[7] CB162, [28]-[36]
[8] CB163, [37], [38]
[9] CB164, [40]
[10] CB164, [42]-[44]
[11] CB164, [45]-[47]
[12] CB165, [48]-[51]
Also on the basis of the applicant’s not being a truthful witness, the Tribunal concluded it was not satisfied “with the applicant’s claims as to his father being harmed by Muslims in his village in the circumstances claimed”; and, for that reason, the Tribunal was not satisfied “the applicant’s father has been harmed in any way such as to indicate that the applicant faces a real chance of serious or significant harm”.[13]
[13] CB166, [55]
The Tribunal then considered whether the applicant faced a real risk of harm if he were to return to Bangladesh because of his being a Hindu. The Tribunal:
(a)noted that at the hearing the Tribunal provided a broad overview of the independent information relating to the situation facing Hindus in Bangladesh, noting there are reported instances of violence perpetrated against Hindus;[14]
(b)noted that information in the “DFAT Country Information Report – Bangladesh, 5 July 2016” (DFAT Report) referred to a number of deaths of Hindus in attacks in late 2015 and 2016;[15]
(c)acknowledged there is statistical information indicating not insubstantial numbers of attacks on Hindu individuals and properties;[16] but this had to be seen in the context that there are 13.5 million Hindus living in Bangladesh, constituting 8.5% of the population; there are no restrictions on Hindus practising their religion, and Hindus make significant contributions to Bangladeshi public life;[17]
(d)accepted that, when in Bangladesh, the applicant would reasonably regularly worship in a temple in a neighbouring town; and that the applicant continues to be a practising Hindu, and would wish to practise his religion on return to Bangladesh;[18]
(e)noted the applicant provided no evidence of any difficulties that he or his family faced in practising their religion in Bangladesh;[19]
(f)accepted the applicant’s village had only a few Hindu families;[20]
(g)accepted the applicant had provided evidence relating to recent religious tensions in Bangladesh countrywide which could have created difficulties in the applicant’s village, but the banding of Hindus in the applicant’s local area prevented problems;[21] and
(h)did not consider there are any significant or ongoing tensions faced by the Hindu community in the area where the applicant lives.[22]
[14] CB166, [57]
[15] CB166, [57]
[16] CB166, [58]
[17] CB166, [59]
[18] CB167, [63]
[19] CB167, [64]
[20] CB167, [71]
[21] CB167, [75], [77]
[22] CB167, [78]
The Tribunal concluded as follows:[23]
The Tribunal does not consider that the circumstances of the applicant and his family in the area in which they live in Bangladesh, as found by the Tribunal, demonstrate that the applicant would face a real chance of serious or significant harm on return to Bangladesh based on the practice of his religion. The Tribunal has taken into account independent and statistical information relating to harm suffered by Hindus in Bangladesh. The Tribunal finds that the risk of harm to the applicant, considering his own circumstances, is remote.
[23] CB167, [79]
Given the findings it made, the Tribunal was not satisfied the applicant met the criteria for the grant of a Protection visa as prescribed by s 36(2)(a) and s 36(2)(aa) of the Act.
SHOULD ORDER EXTENDING TIME BE MADE?
Principles
Under s 477(2) of the Act the Court may order the extension of the 35 day period prescribed by s 477(1) of the Act if two things are satisfied.[24] First, an application for such order has been made in writing to the Court specifying why the applicant considers it is necessary in the interests of the administration of justice to make the order. Second, the Court must be satisfied it is necessary in the interests of the administration of justice to make such order.
[24] I repeat here what I said in BYN18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 63, at [16]-[20]
In SZRIQ v Federal Magistrates Court of Australia Foster J said:[25]
The courts have developed guidelines as to the factors which might ordinarily be taken into account in considering the interests of the administration of justice in this context. Commonly, those factors include:
(a) Whether there has been a reasonable and adequate explanation for the applicant’s delay;
(b) Whether there is any prejudice to the Minister;
(c) Whether the applicant’s substantive case for judicial review is sufficiently arguable to justify the extension of time.
[25] SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284, at [47]
The Federal Court has held that, on an application under s 477(2) of the Act, the Court can consider no more than whether the applicant’s case has some merit. In the words of Mortimer J in MZABP v Minister for Immigration and Border Protection, a hearing of an application for an extension of time “should not be transformed into a de facto full hearing”.[26] Further:[27]
If a judge travels beyond an examination of the grounds at what should be a reasonably impressionistic level into a fuller consideration of the arguments for and against each ground of review, then in my respectful opinion that is not a function appropriate to a discretion such as that contained in s 477(2).
[26] MZABP v Minister for Immigration and Border Protection [2015] FCA 1391, at [63] (cases cited omitted)
[27] MZABP v Minister for Immigration and Border Protection [2015] FCA 1391, at [62] (cases cited omitted)
As her Honour noted in the same judgment, the words that have been used to describe the merits a claim for judicial review should have to justify the granting of an extension of time include “is “arguable”, “reasonably arguable”, “sufficiently arguable” or has “reasonable prospects of success””;[28] and, as her Honour also stated, that assessment is to be made on “a reasonably impressionistic level”.[29]
[28] MZABP v Minister for Immigration and Border Protection [2015] FCA 1391, at [63]
[29] MZABP v Minister for Immigration and Border Protection [2015] FCA 1391, at [62]
Also relevant is the “applicable test” Steward J identified in Tuberi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs:[30]
The applicable test for determining whether to grant an extension of time was not in doubt. The Court must consider the extent of the delay, any prejudice a respondent might suffer because of the delay, the explanation for the delay, and the merits of the proposed application: see Singh v. Minister for Immigration and Border Protection [2017] FCA 150 at [19] and SZTRY v. Minister for Immigration and Border Protection [2015] FCAFC 86 at [6]. For the purposes of considering the issue of merit, the proposed grounds of review are examined at a reasonably impressionistic level: Guo v. Minister for Immigration and Border Protection [2018] FCAFC 34 at [27].
[30] Tuberi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1029, at [4]
Extent of and explanation for delay
The Tribunal made its decision on 23 December 2016, but the applicant did not file the application until 6 February 2017, being 10 days after the 35 day time limit stated in s 477(1) of the Act had expired.
The applicant has deposed to facts on which he relies to explain his delay.[31] The applicant says that on 23 December 2016 the Tribunal had sent an email to the applicant’s email address attaching the Tribunal’s notification letter that the Tribunal had affirmed the delegate’s decision. The applicant does not recall seeing the email until approximately 27 or 28 January 2017. The applicant did not own a computer or laptop; the only way he could access his emails was by his phone. The applicant, however, did not use email technology to communicate with his friends or other people. The applicant, therefore, did not check his emails “very often”.
[31] Applicant’s affidavit 26.11.2021
The applicant further deposes that on opening the email from the Tribunal, he “couldn’t completely understand the contents” because his English reading skills were not very good at that time. As soon as he saw the email, the applicant contacted a lawyer who was known to the applicant through a friend. The applicant arranged to meet with the lawyer and, when they met, the lawyer told the applicant that the applicant needed to apply “to the Federal Circuit Court as soon as possible”. The applicant then arranged for the lawyer to prepare and file the application.
This does not afford a reasonable explanation for the applicant’s delay. The delay arose from the applicant’s not checking his emails, being the means by which the applicant had agreed the Tribunal could communicate with him. Given, however, the relatively small period of delay, the applicant’s failure to provide an adequate explanation for delay would have little weight if I were satisfied that there is some merit in the grounds on which the applicant relies for claiming the Tribunal made a jurisdictional error.
Apparent merits
The applicant proposes to rely on grounds 2 and 3 of the grounds contained in the draft further amended application that is annexed to the affidavit of the applicant’s solicitor made on 26 November 2021. For reasons that will appear later, I am satisfied there is some merit in proposed grounds 2 and 3 to justify an order under s 477(2) of the Act, and also to justify an order granting the applicant leave to file a further amended application that only includes proposed grounds 2 and 3.
Conclusion
Although I am not satisfied the applicant has given an adequate explanation for his delay in commencing this proceeding within the time prescribed by s 477(1) of the Act, given the applicant’s delay in filing his application is relatively slight, and that I have concluded there is some merit in proposed grounds 2 and 3, I am satisfied it is necessary in the interests of the administration of justice that the time for making the application for remedies under s 476 of the Act in relation to the Tribunal’s decision be extended up to 6 February 2017.
I will therefore make an order under s 477(2) of the Act extending the time by which the applicant may make an application for remedies under s 476 of the Act up to 6 February 2017. I will also make an order granting the applicant leave to file a further amended application in the form of the draft further amended application that is annexed to the affidavit of the applicant’s solicitor, but omitting ground 1.
GROUNDS OF APPLICATION
Ground 2
Ground 2 is as follows:
The Tribunal erred in failing to address a claim made by the applicant and that that clearly arose in the delegate’s decision, that being whether the applicant may be the victim of extortion on return to Bangladesh by persons other than [Mr B] and his followers.
Parties’ submissions
In his counsel’s written submissions the applicant submits there was a distinct claim before the Tribunal that the applicant feared extortion, and therefore harm, not only from Mr B, but also from other persons. The applicant submits that the claim was articulated or ought reasonably have been regarded by the Tribunal to have been articulated in the following passage from the delegate’s decision (italics added):[32]
It is plausible that the applicant’s father experienced some level of harm at the hands of Muslims in the local Bazaar. He may well have experienced regular altercations, and these may have escalated to the point of physical assault on occasions. However, I note that the applicant’s family continued to reside in the same Muslim majority village, and did never relocate to an area with a larger Hindu community. I further consider it plausible that the applicant’s family were subjected to some extortion threats, however I am unsatisfied that these were part of a pattern of conduct, or that these in any way impacted on his decision to leave Bangladesh. Ultimately I consider the applicant has embellished these claims in order to enhance his protection application. I do not accept the applicant’s claims of extortion, or the claim that his father was assaulted for being Hindu, to the extent that he could no longer work.
[32] CB114
The applicant submits the Tribunal did not address the possibility that the applicant and his family would be the victims of extortion at the hands “of others”.
The Minister, on the other hand, submits that it is clear from the Tribunal’s reasons that it appreciated that the applicant’s claims to fear harm from extortionists was not limited to Mr B and his followers, but extended beyond those whom the applicant claimed had accosted him in the past.
Determination
It is the case that the applicant’s claims based on fear of harm from extortionists was not limited to fear of harm from Mr B and his followers. That is apparent from the SD itself, where the applicant claimed that approximately once or twice a month, the Muslims in the village would come to the applicant’s family’s residence and “force us to pay them money”. The Tribunal was aware of these claims because it set them out in its reasons.
It is also the case that the following passage from the Tribunal’s reasons (italics added) is open to being construed as being restricted to the applicant’s claim that he feared harm from Mr B and his followers, but not from other Muslims who would seek to extort money from the applicant and his family:[33]
The cumulative impact of these six credibility concerns are significantly damaging to the applicant’s credibility. They cause the Tribunal to not be satisfied that the applicant or his family were extorted by [Mr B] and other Muslim individuals in his village who attacked the applicant when he did not pay, with the applicant hitting [Mr B].
[33] CB165, [52]
The Tribunal’s finding contained in the italicised portion of this passage is directed to Muslims whom the applicant claims had attacked him, which means it is directed to Mr B and his followers. But this passage must be read with the following passage from the Tribunal’s reasons (italics added):[34]
Given those findings, the Tribunal is not satisfied that there is a real chance of the applicant facing serious or significant harm on return to Bangladesh as a result of [Mr B] and other Muslim males wanting to harm the applicant due to him or his family not paying money to them and/or due to past physical altercations, or due to the applicant's political involvement.
[34] CB165, [54]
Unlike the passage I have set out in paragraph 30 of these reasons, the “other Muslim males” to which the Tribunal refers in the passage I have set out in paragraph 31 is not restricted to Muslim males who had assaulted the applicant; it extends to all Muslim males, including Muslim males wanting to harm the applicant due to the applicant or his family not paying money to them “and/or” due to past physical altercations. This class of Muslim males extends beyond Mr B’s followers. The Tribunal’s finding in relation to this class of Muslim males, therefore, responds to, and therefore indicates the Tribunal considered, the claims the applicant made in the SD that the applicant feared harm from all Muslim extortionists.
For these reasons, ground 2 fails.
Ground 3
Ground 3 is as follows:
The Tribunal failed to lawfully consider whether the applicant faced a well-founded fear of persecution on return to Bangladesh pursuant to s. 5J of the Migration Act.
Particulars
(a) Despite finding, on the applicant’s evidence, that the banding together of Hindus in his village had prevented recent “problems” caused by religious tensions, the Tribunal failed to consider information in a DFAT Country Report of 5 July 2016, parts of which were extracted in its decision, to the effect that a significant recent increase in Islamist militancy has heightened the risk of sectarian and generalised violence against members of religious minority groups.
Parties’ submissions
In his counsel’s written submissions, the applicant submits that, although the Tribunal cited a considerable amount of country information that showed there had been attacks on Hindus in the past that had resulted in the destruction of homes, livelihoods, and temples, as well as assaults and murders, it had before it country information, which the Tribunal did not consider, in the sense of actively engaging with that information to determine whether the applicant faced in the reasonably foreseeable future a real or significant risk of harm because he is a Hindu. The information the applicant submits the Tribunal did not consider is that contained in paragraphs 2.27 to 2.32 of the DFAT Report, which appear under the heading “Security Situation”. The applicant particularly submits the Tribunal did not consider the statement contained in paragraph 2.32 of the DFAT Report, which is to the effect that the threat to minorities from organised Islamic militants was increasing.
In his oral address, counsel for the applicant acknowledged the Tribunal did set out a section from the DFAT Report that dealt with the position of Hindus in Bangladesh which included the statement that “Islamic militants periodically attack members of the Hindu community and Hindu religious sites, and these have increased considerably in recent times”; and counsel further acknowledged that this statement refers to a trend. Counsel, however, submitted that the information contained in paragraph 2.32 of the DFAT Report is different from that to which the Tribunal referred in its reasons. Paragraph 2.32 of the DFAT Report is as follows:
The change in focus and militants’ claims of allegiance to extra-regional terrorist groups highlight a new anti-Western dimension to Islamist militancy in Bangladesh. DFAT assesses that these developments have heightened the risk of sectarian and generalised violence against members of religious minority groups and others perceived to threaten conservative Islamist interests (see ‘Religion’ and ‘State Protection’, below).
Counsel further submitted that this passage refers to the heightened risk of sectarian and generalised violence in the future and, for that reason goes directly to the future danger to minority groups.
The Minister, on the other hand, in his written submissions, submits the Tribunal took into account the DFAT Report; and that it is apparent that it was from the DFAT Report that the Tribunal obtained the information and statistics of the deaths of, and attacks on Hindus, that it sets out in its reasons. The Minister further submits that the Tribunal did not simply refer and set out this information; the Tribunal considered the information by reference to the particular circumstances of the applicant, and made its ultimate finding of risk of harm by reference to the applicant’s particular circumstances.
Determination
Ground 3 appears to be based on the assumption that the information contained in paragraph 2.32 of the DFAT Report is distinct from, or at least could only reasonably be viewed as distinct from, the information contained in paragraphs 3.20 to 3.26 of the DFAT Report, which the Tribunal reproduced in paragraph 19 of its reasons.[35] That assumption, however, is incorrect.
[35] CB157-158, [19]
Paragraph 2.32 of the DFAT Report is the concluding paragraph of a section headed “Security Situation”; it is a section that deals with the security situation in Bangladesh as a whole. The last sentence of paragraph 2.32 refers the reader to later sections of the DFAT Report, in particular, to the sections headed “Religion” and “State Protection”, which contain DFAT’s assessment of “these developments”, namely, the “change in focus and militants’ claims of allegiance to extra-regional terrorist groups”, in relation to particular minorities, one of which are Hindus. In other words, the section from the DFAT Report on Hindus (which appears in the section headed “Religion”), which the Tribunal reproduced in paragraph 19 of its reasons, is the section that contains, or at the very least, it was reasonably open to the Tribunal to consider it contained, DFAT’s assessment of the matters identified in paragraph 2.32 of the DFAT Report to the extent those matters related to Hindus.
There is no question the Tribunal had regard to the information from the DFAT Report the Tribunal reproduced in paragraph 19 of its reasons; and it is open to infer, and I find, the Tribunal was aware of paragraphs 2.27 to 2.32 of the DFAT Report and that it proceeded on the basis that the information it set out in paragraph 19 of its reasons constituted DFAT’s assessment of the matters it identified in paragraph 2.32 of the DFAT Report, as they related to Hindus. The Tribunal, therefore, did consider paragraphs 2.27 to 2.32 of the DFAT Report to the extent they applied to Hindus when the Tribunal considered the information it set out in paragraph 19 of its reasons. Even if the Tribunal did not so proceed, however, I am satisfied that the only reasonable construction of paragraph 2.32 of the DFAT Report is that it refers the reader to later sections of the DFAT Report in which DFAT assesses the “risk of sectarian and generalised violence against members of religious minority groups”, which includes Hindus; and that the portion of the DFAT Report the Tribunal set out in paragraph 19 of its reasons constituted DFAT’s assessment of the “risk of sectarian and generalised violence against members of religious minority groups” in relation to Hindus.
I am also satisfied the Tribunal actively engaged with the information from the DFAT Report the Tribunal set out in its reasons, and to which it otherwise referred. As the Minister submits, the Tribunal did not simply refer and set out this information; the Tribunal considered the information by reference to the particular circumstances of the applicant, and made its ultimate finding of risk of harm by reference to the applicant’s particular circumstances.
For these reasons, ground 3 fails.
DISPOSITION AND COSTS
In addition to making an order under s 477(2) of the Act, and granting the applicant leave to file a further amended application, I propose to order that:
(a)by 21 April 2023 the applicant file and serve a further amended application omitting proposed ground 1; and
(b)the application be dismissed on the basis that the order not take effect until 21 April 2023.
There is no apparent reason why costs should not follow the event. I will therefore order that the applicant pay the Minister’s costs set in the amount of $8,371.30, being the amount provided for in Part 2 of Schedule 2 to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth). I will, however, grant the parties liberty to apply within 21 days after the day I pronounce my orders for an order to discharge or vary the order for costs I propose to make.
Finally, I will order that the Minister’s name be changed to its current description.
I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis. Associate:
Dated: 14 April 2023
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