AOS18 v Minister for Immigration
[2019] FCCA 327
•15 February 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AOS18 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 327 |
| Catchwords: MIGRATION – Protection Visa Application – review of decision of Immigration Assessment Authority – whether the IAA failed to properly address the requirements of s.36(2)(a) of the Migration Act 1958 (Cth) – whether rejection of alleged motivation for prior acts of violence against the applicant relied upon for conclusion of an absence of any real risk of future harm – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5J, 36(2), 46A(2), 476(1) |
| Cases cited: Abebe v The Commonwealth (1999) 197 CLR 510 |
| Applicant: | AOS18 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | PEG 77 of 2018 |
| Judgment of: | Judge Kendall |
| Hearing date: | 26 October 2018 |
| Date of Last Submission: | 26 October 2018 |
| Delivered at: | Perth |
| Delivered on: | 15 February 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr R. Saul-Jahnke |
| Solicitors for the Applicant: | Estrin Saul Lawyers |
| Counsel for the First Respondent: | Ms M. Jackson |
| The Second Respondent submitting appearance, save as to costs |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The Applicant’s application for judicial review is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 77 of 2018
| AOS18 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Background
The Applicant in these proceedings is a young Bangladeshi male. On 11 April 2013, he arrived in Australia via Christmas Island as an unauthorised maritime arrival.
On 8 September 2016, the Applicant was notified that the Minister for Home Affairs (the “Minister”) had exercised his power under s.46A(2) of the Migration Act 1958 (Cth) (the “Act”) to allow the Applicant to lodge an application for either a Temporary Protection (subclass 785) visa (“TPV”) or a Safe Haven Enterprise (subclass 790) visa (“SHEV”).
On 21 February 2017, the Applicant lodged a valid SHEV application.
The Applicant provided a statutory declaration with his SHEV application in which he claimed that that he feared harm by the Bangladeshi police. The Applicant claimed that his parents and siblings were supporters of the Bangladesh Nationalist Party (“BNP”) and that his father was a member of the BNP. The Applicant also indicated that he had endured physical and emotional harm at the hands of members of a rival political party, the Awami League (“AL”) and that he also fears harm as a Sunni Muslim.
The Applicant's representative also provided a written submission dated 6 June 2017 (CB 148-162) which addressed whether the Applicant could relocate within Bangladesh.
On 11 August 2017, a Ministerial delegate refused to grant the Applicant the SHEV.
On 16 August 2017, the delegate referred that decision to the Immigration Assessment Authority (the “IAA”) for a review of the decision.
On 11 January 2018, the IAA affirmed the delegate's decision.
The Applicant now seeks a review of the IAA’s decision in this Court.
This proceeding is brought pursuant to s.476(1) of the Act. To obtain assistance from this Court, the Applicant must show jurisdictional error on the part of the IAA.
By his amended application dated 12 October 2018, the Applicant alleges jurisdictional error on the part of the IAA as follows:
1.The Assessor failed to properly consider all of my claims. The Immigration Assessment Authority (IAA) erred by:
a.failing to consider an integer of the Applicant’s claims for protection by not considering whether the physical harm, threats and extortion suffered by the applicant in Bangladesh for a non-Convention reasons gave rise to complementary protection obligations under s.36(2)(aa) of the Migration Act 1958 (Cth) (Act); and / or in the alternative
b.requiring the Applicant to show a Convention-nexus to the risk of significant harm he faced in order to fall within complementary protection criteria under s.36(2)(aa) of the Act.
The Applicant's written submissions develop this error by reference to instances of past harm that were accepted by the IAA when it assessed the Applicant’s Convention claims.
In effect, the Applicant contends that, having accepted that the Applicant had been threatened by AL activists and/or members on at least two occasions and physically attacked by them on at least three occasions, it was incumbent on the IAA to consider whether these events gave rise to Complimentary protections under s.36(2)(aa) of the Act. The Applicant contends that the IAA did not do so (either at all or in a way that is legally sound) and that this constitutes jurisdictional error.
Although the Minister’s written submissions were not entirely clear, it appears that the Minister now contends that, given the IAA’s findings in relation to the Applicant’s Convention claims (and, in particular, its findings that the attacks in question were not politically motivated), the IAA was not required to articulate any separate findings in relation to these events when assessing the Complementary protection criteria. This, it is contended, is because the entirety of the Applicant’s claims rested on a factual substratum which was not accepted (i.e. that the Applicant was harmed because of his political ties). Therefore, having rejected the motivation for the claimed attacks, any future risk of harm fell away. As such, it seems to be contended, the IAA was entitled to rely on its earlier reasoning without expressly reiterating its reasons in relation to the Applicant’s Complementary protection claims.
The Court had before it a Court Book (“CB”), detailed written submissions from the Applicant dated 12 October 2018 and written submissions from the Minister dated 19 October 2018. The Court thanks Mr Saul-Jahnke (for the Applicant) and Ms Jackson (for the Minister) for their considerable assistance in relation to this matter.
The IAA’s Decision
The Court notes the Minister’s written summary of the IAA’s decision in the Minister’s written submissions at paragraphs 8 to 12. The Applicant’s written submissions did not provide a detailed summary of the IAA’s decision but the factual summary provided by the Minister was not disputed at the hearing of this matter. The Court has cross checked all references and, where relevant to the matters at hand, adopts the summary provided by the Minister (other than as expanded upon below).
At [4] in its written reasons, the IAA summarised the Applicant’s claims as follows:
·The applicant is a Sunni Muslim of Bengali ethnicity and a citizen of Bangladesh who was born in Golaperchar village, Daudkandi upazila in Camilla district, Bangladesh. His parents and three younger siblings continue to reside in Golaperchar.
·The applicant's parents and siblings are all supporters of the BNP and his father is a member. Around 2006 during the time of the caretaker government the applicant became interested in politics. He supported the work of the BNP and decided to become involved. He participated in rallies and public meetings of the local BNP which took place in his village, nearby villages and the city of Daudkandi which is about 5 minutes from his village.
·Sometime in 2007 he decided to become a BNP member. He continued attending meetings and rallies and began recruiting other participants. In mid-2008 he was elected general secretary of the Golaperchar branch of the Jubo Dal, the youth wing of BNP.
·After the AL came to power in 2009 the applicant began to experience problems from local AL leaders who wanted the applicant to join the AL. In mid-2009 he was leaving a BNP meeting when he was stopped by the local AL leader of his village and about 25 other people, who punched him a few times and slapped him after he refused to join the AL or pay protection money to them. They also threatened to kill him at any time.
·In December 2009 the applicant was again stopped by the same AL leader and four others when he was leaving his father's shop. Once again the applicant refused to join AL, or pay money and was slapped and threatened. They attacked the shop and took all the money from the till. The applicant stopped participating in BNP activities for some time as his father was also threatened by AL after he spoke to the AL leader's father about what had happened to the applicant.
·In September 2010 when he was returning home from helping his father in the shop the applicant was attacked in the street by the same AL people who wounded his arm with an axe and stabbed him in the thigh. He was hospitalised after the incident and interviewed by the police but they did not take action as the AL was in power.
·The applicant remained at home for 3-4 months occasionally working at the shop, before he went to live with his uncle in Dhaka in February 2011. Shortly after he went to Dhaka the same AL people vandalised his father's shop and burnt it down. His father did not report it to the police as he was afraid of the repercussions.
·About two weeks after the shop was burnt down the AL came to the applicant's house and spoke to the applicant's mother asking the applicant's whereabouts. They said that if the applicant returned to his village and joined the AL everything would be fine.
·In June 2012 the applicant saw someone in Dhaka who was from the AL in his home village. He was frightened that the Golaperchar AL leader would send local AL people to find him in Dhaka and decided to return to his family in his home village. He remained in his home almost the whole time but fled to Chittagong in September 2012 after he was seen by a local AL member when returning from the local shop in Golaperchar with his family. In February 2013 the applicant left Bangladesh.
·In June 2013 his brother was stopped and threatened by local AL members wanting to know the applicant's whereabouts and threatening to kill the applicant. His brother was taken to the police station where he was arrested, and sentenced to three years imprisonment on a false political charge, for being a BNP supporter and his association with the applicant.
·Later in 2013 AL members came to the family home and attacked his parents, wanting to know the applicant's whereabouts. They hit his family members and his mother was hospitalised with a broken ankle. In 2015 the local AL leader and his supporters occupied some of his father's farm land which they used to play soccer. In January 2017 when his father went to the land to attempt to sell it, the local AL leader demanded a ransom to stop occupying the land. They told his father they knew the applicant was in Australia now and would kill the applicant if he returned to Bangladesh.
·The applicant fears being harmed or mistreated by the local AL leader and his supporters. He also fears being harmed by the Bangladeshi police on the instructions of the local AL leader or his supporters due to his BNP support and his activities in politics. He fears being harmed or mistreated as a Sunni Muslim.
The IAA examined the evidence before it regarding the Applicant's involvement with the BNP (see [6]-[14]) and found that the Applicant had been a BNP supporter and had attended public rallies (meetings particularly in the lead up to the 2008 elections): [10], [13], [27].
The IAA also accepted that the Applicant's support for the BNP may have been known in his village: [13].
Despite this, the IAA had concerns about the Applicant's claimed membership in the BNP and his level of involvement with the youth branch of the BNP.
These concerns were based on the following findings:
a)The Applicant demonstrated a minimal understanding of the BNP ideology which belied his claimed level of membership in the party: [10].
b)There were numerous inconsistencies and implausibilities in the evidence before the IAA. These included inconsistencies about when the Applicant became involved with the BNP, when he became a member and how he was able to become a member before he turned 18: [10]-[13].
Given its concerns, the IAA found that the Applicant had embellished his status and involvement with the BNP. The IAA did not accept that the Applicant was an ongoing BNP member or that he was general secretary or that his involvement in organising and attending activities was as he had claimed: [13], [26].
The IAA accepted that the Applicant's father was a BNP supporter or member but determined that there was no evidence to indicate that the Applicant's father had any active involvement with the BNP: [14], [26].
The IAA also accepted that the Applicant had been threatened by AL activists and/or members on at least two occasions and physically attacked by them on at least three occasions. Despite this, the IAA did not accept that such threats or attacks had any Convention-nexus as required by s.5J(1)(b) of the Act.
In this regard, the Court notes the IAA’s findings at [17] to [19] as follows:
17.The applicant claims that in mid-2009 as he was returning from a big BNP meeting he did not notice he was followed by the village AL leader and 25 AL supporters, who stopped him and told him to join AL. When he refused they asked him for money but he did not have any money so they slapped him and punched him a number of times, saying there was still time to join AL otherwise he would be killed. I accept that the applicant may have attended a large BNP meeting in his village and may have been seen leaving the meeting as were other supporters and members. I also accept that the local AL activists may have approached and threatened the applicant, attempted to extort money from him and hit him when it was evident he had no money. However I consider it implausible that the applicant would be unaware that he was being followed by over 25 people after leaving a large meeting. Nor do I accept the applicant's explanation that he was approached by the AL on this occasion because he was known to be a persuasive BNP recruiter whose skills would be of benefit to the AL if the applicant joined them. I do not accept that the applicant was ever the village general secretary of the Jubal Dal/BNP, and given his occasional attendance at rallies in the lead up to the 2008 elections as well as his limited involvement after the elections, the lack of interest in the applicant in the six months after the elections and country information indicating that supporters or members of political parties were not at risk of being arrested or living in fear of violence on a day-to-day basis due to their political affiliations,2 I am also not satisfied that the applicant was of ongoing interest to the local AL or had a profile other than as a BNP supporter who was seen leaving a large meeting. I am satisfied that although the applicant was threatened it was an opportunistic attempt by AL supporters to intimidate him. I also note that the applicant did not indicate that he encountered any issues prior to this incident although he claims to have been politically active since 2005. Nor did he indicate that he experienced any further issues until December 2009 some six months after this incident.
18.The applicant claims that his father ran a general store which sold groceries and his father was a BNP member/supporter. The attack on the applicant in December 2009 when leaving his father's shop was included in the statutory declaration but was not mentioned at the SHEV interview by the applicant, although he was invited to provide further details at the interview of other incidents which happened to him and had indicated there were three incidents. The applicant claimed that he was leaving his father's shop when he was stopped by the local AL leader who told him to join AL and pay money. He was slapped and threatened and the AL attacked the shop and took all the money from the till. The applicant's father spoke to the family of the local AL leader about the incident, and the following day the local AL leader confronted his father at the shop and threatened to harm him and the applicant. The applicant claims to have stopped participating in any BNP activities after the incident, to have attended the shop occasionally and remained at home so the local AL would not find him alone in public. I accept that AL members may have targeted his father's business for extortion which is supported by country information indicating there is low level violence associated with extortion of BNP business owners by AL in rural areas. I also accept that the applicant who was at the shop on this occasion was hit and money was taken from the shop till. However, I consider the main target was his father who was a BNP member/supporter and the shop owner, rather than the applicant who happened to be at the shop at the time and was not the business owner, although he was a BNP supporter.
19.The applicant also claims to have been attacked by the AL in September 2010 when he was returning home from his father's shop and during the SHEV interview he showed the delegate a scar on his arm which he claimed was acquired during the attack; and he also subsequently provided photos of the scars from this attack. He claims to have been hospitalised for 11 days before returning home where he stayed for 3-4 months and only occasionally worked in his father's shop before he went to live in Dhaka in February 2011. I accept that the applicant may have suffered an injury to his arm and leg, but given the applicant's lack of involvement in any BNP activities since 2009, his lack of profile and country information indicating that supporters or members of political parties were not at risk on a day-to-day basis due to their political affiliations, I do not accept that the applicant was attacked by the AL due to his political affiliation, his former political activities or for any other reason.
The IAA was not satisfied that the Applicant's father's shop was deliberately destroyed by the AL because of his or his father's support of the BNP or that the AL came to the family home in 2011 asking for the Applicant. The IAA found that the Applicant had not been involved in any BNP activities since 2009. The IAA found the Applicant's reasons for returning to his home village in June 2012 implausible given that if the Applicant was of any interest to the local AL he would be more easily located in his home village: [22] and [27].
The IAA was also not satisfied that the Applicant's brother was subjected to a false charge. This assessment was based on the lack of evidence of the conviction and the IAA’s earlier findings about the Applicant's political involvement.
The IAA also did not accept evidence in relation to an alleged subsequent attack on the Applicant's parents or an injury to the Applicant’s mother as this was not mentioned at the SHEV interview.
The IAA also did not accept that the AL took over the Applicant’s father's land or threatened to kill the Applicant if he returned because the Applicant had ceased involvement with the BNP in 2009: [23]-[25], [27].
The IAA then summarised its credibility concerns regarding the Applicant's involvement with the BNP and any harm from the AL: [26]-[27].
Based on its findings about the Applicant's low profile, the fact that he had ceased involvement with the BNP in 2009 and country information, the IAA was not satisfied that there was a real chance of harm: [30]-[33], [39].
Further, noting that 90% of the Bangladeshi population are Sunni Muslims, the IAA determined that it was not satisfied that the Applicant faced a real chance of harm based on his religion: [36].
Further, the IAA was not satisfied that the Applicant would be targeted for being a failed asylum seeker. It noted that there were 5 million Bangladeshis working overseas and that support and resettlement programs were available to returnees. Further, the IAA determined that if the Applicant was socially ostracized, this did not constitute serious harm: [38]-[39].
On the basis of these findings, the IAA affirmed the delegate's decision under review in relation to the Applicant’s Convention claims.
The IAA then assessed whether any Complementary protections were owed to the Applicant. The IAA wrote:
42. Under s.36(2A), a person will suffer 'significant harm' if:
·the person will be arbitrarily deprived of his or her life
·the death penalty will be carried out on the person
·the person will be subjected to torture
·the person will be subjected to cruel or inhuman treatment or punishment, or
·the person will be subjected to degrading treatment or punishment.
43.The applicant claims that he will be socially ostracised as a failed asylum seeker on return to Bangladesh. As noted earlier in the decision, I do not accept there is a real chance of the applicant being ostracised for this reason or that this constitutes serious harm. On the evidence I am not satisfied that being socially ostracised would result in the applicant being arbitrarily deprived of his life, or would constitute the death penalty, or torture. Nor am I satisfied that such ostracism amounts to cruel or inhuman treatment or punishment or degrading treatment or punishment. I do not accept that such treatment constitutes significant harm as defined in s.36(2A) of the Act. I have also found that there is not a real chance that the applicant would face other forms of harm in Bangladesh as a failed/returning asylum seeker and as the 'real risk' test imposes the same standard as the 'real chance' test, I am also not satisfied that there is a real risk of the applicant suffering such harm on the return to Bangladesh.
44.I have otherwise found that the applicant does not face a real chance of any harm on return to Bangladesh due to his former political involvement, his previous or future support of the BNP, his father's BNP support, as a Sunni Muslim or due to his illegal departure. In MIAC v SZQRB (2013) 210 FCR 505, the Full Federal Court held that the 'real risk' test imposes the same standard as the 'real chance' test applicable to the assessment of 'well-founded fear'. Therefore for the reasons stated above I am not satisfied the applicant faces a real risk of significant harm.
Proceedings in this Court
As noted above, in his Application for judicial review, the Applicant relies on one ground of review, as follows:
1.The Assessor failed to properly consider all of my claims. The Immigration Assessment Authority (IAA) erred by:
a.failing to consider an integer of the Applicant’s claims for protection by not considering whether the physical harm, threats and extortion suffered by the applicant in Bangladesh for a non-Convention reasons gave rise to complementary protection obligations under s.36(2)(aa) of the Migration Act 1958 (Cth) (Act); and / or in the alternative
b.requiring the Applicant to show a Convention-nexus to the risk of significant harm he faced in order to fall within complementary protection criteria under s.36(2)(aa) of the Act.
It is evident from the very useful oral submissions presented by Mr Saul-Jahnke for the Applicant that at the core of the Applicant’s ground of review is the contention that, given the IAA’s findings in relation to the evidence of physical harm inflicted on the Applicant in Bangladesh (on three occasions), the IAA failed to comply with its obligations under the Act because it did not specifically address these acts of violence in determining whether the Applicant risked future harm as per the requirements of s.36(2)(aa) of the Act.
The Applicant’s Submissions
In relation to his sole ground of review, the Applicant submitted, relevantly, as follows:
a)In the Applicant’s SHEV application, the Applicant explained that the reasons he fled Bangladesh included having been threatened by AL goons on at least two occasions and physically attacked by them on at least three occasions (CB 88 [10]-[11], CB 89 [14]).
b)Further, the Applicant claimed that if forced to return to Bangladesh, he would be subjected to:
i)significant harm including, but not limited to:
a.intimidation and harassment;
b.physical violence;
c.deprivation of liberty; cruel, degrading and inhuman treatment or punishment; and/or
d.death (CB 91 at [26]).
c)Further, at interview, the Applicant explained that one of the reasons he feared this significant harm was because he had been previously threatened with such harm (Affidavit of Ali Khan dated 12 October 2018, page 20 [25]):
Delegate: Can you tell me what do you think will happen to you if you were to return to Bangladesh?
Interpreter: He doesn’t want to go back to Bangladesh because he thinks that he will be tortured inhumanly, and he will be killed. Anything can happen to him, because he was threatened so.
d)The IAA accepted that the Applicant had been threatened by AL goons on at least two occasions and physically attacked by them on at least three occasions, but did not accept that such threats or attacks had any Convention-nexus as required by s.5J(1)(b) of the Act (referencing the IAA’s decision at paragraphs 17 to 18).
e)After having found that the abovementioned attacks, threats and acts of extortion were not politically motivated, it was incumbent on the IAA to consider whether this pattern of harm/mistreatment gave rise to protection obligations under s.36(2)(aa) of the Act.
f)In SZSFK v Minister for Immigration & Anor [2013] FCCA 7 (SZSFK), Driver J found at [92] that the Reviewer erred in rejecting certain claims under the refugee assessment (for a lack of a Convention-nexus) and then also rejecting the Applicant’s claims for complementary protection for the same reasons:
Given the manner in which the Reviewer approached his task (ie to accept the claimed apprehensions and beatings, but to reject the claim under s.36(2)(a) for reasons specific to Convention claims), it was not open for the Reviewer to simply say, as he did, that the complementary protection claim was rejected for the same reasons. It was incumbent on him to engage with the language of s.36(2)(aa) and to consider the evidence relevant to that provision.
g)In SZRLK v Minister for Immigration & Anor [2012] FMCA 1155 (SZRLK), Smith FM (as he then was) similarly found at [44] that ‘the Tribunal’s refusal to characterise any part of the past persecution of the Applicant, as coming within the protection of the Refugees Convention, left alive a very significant claim that the Applicant would face serious and significant harms which might be covered by Australia’s other international obligations, and which required careful analysis and full reasons which applied the new statutory provisions.’
h)In the present matter, the IAA’s findings under the heading ‘Complementary protection assessment’ (CB 225 [41] – 226 [45]) exhibit a strong similarity to its earlier findings under the heading ‘Refugee assessment’ (CB 222 [28] – 225 [40]).
i)The IAA’s reasons at [43] and [44] reveal that in purporting to conduct an assessment of the Applicant’s claims for protection under the complementary protection provisions, the IAA only assessed:
i)whether the Applicant would be ‘socially ostracised as a failed asylum seeker’ or otherwise face a real risk of significant harm as a ‘failed/returning asylum seeker’ (CB 226 [43]); and
ii)whether the Applicant would face significant harm ‘due to his former political involvement, his previous or future support of the BNP, his father’s BNP support, as a Sunni Muslim or due to his illegal departure’ (CB 226 [44]).
j)The flaw in the IAA’s approach is that it made no attempt to distinguish the different tests posed by s.36(2)(a) and s.36(2)(aa) of the Act. This is particularly problematic in the present case, where the IAA accepted claims of physical assault, threats and extortion, but rejected these claims on the basis that there was an absence of a Convention nexus.
k)The IAA’s complementary protection assessment made no mention of the three attacks, threats and acts of extortion. This failure alone is sufficient to distinguish the present case from CDY15 v Minister for Immigration and Border Protection [2018] FCA 175 (CDY15) where Derrington J found at [37] that there ‘is no jurisdictional error in the Tribunal applying its earlier findings (being the rejection of the appellants assertions as to why harm was inflicted upon him) for the purposes of determining whether or not he would face a real risk of harm if returned to Malaysia for the purposes of s 36(2)(aa).’ However, in CDY15, the Tribunal’s complementary protection assessment was significantly more detailed and included the following findings:
As noted above the tribunal accepts that the applicant suffered two incidents of harm in the past but has not accepted the applicant’s claims regarding the reasons or motivations for those attacks, namely that they were caused by [AB]’s gang and because of the [first appellant’s] association [XY]. There are many plausible reasons why the [appellant] could have been attacked on those two past occasions that, for whatever reason, he has chosen not to disclose. Given that the tribunal has rejected the claims he has made about the motivations behind those attacks, the tribunal does not accept on the evidence before it that there is a real chance or risk that the applicant will be the victim of similar attacks or face serious or significant harm in the reasonably foreseeable future.’
l)Derrington J noted at [36] that the above ‘paragraph contains a determination by the Tribunal for the purposes of s.36(2)(aa) to the effect that given the absence of any known motivation for the attacks in the past, there was no real chance or risk that the first appellant would be at risk in the future of serious or significant harm.’ In the present case, no such determination exists.
m)Additionally, Derrington J noted at [37] that there was no suggestion of any future harm brought about by the isolated attack against CDY15: ‘The rejection of the appellants’ assertions as to the motivations for the attacks and their assertions of the circumstances surrounding them which suggested a motivation for the attacks, had the effect that the fact of the attacks having occurred carried with it no suggestion that similar harm would be suffered in the future.’
n)However, in the present matter, the IAA accepted the Applicant had been threatened, attacked and extorted in the past. Unlike in CDY15, the threats of future harm by the perpetrators warranted at least an assessment of whether another attack may reoccur in the future.
o)The IAA’s failed to consider an integer of the Applicant’s claims for protection by not considering whether the physical harm, threats and extortion suffered by the Applicant in Bangladesh for a non-Convention reason gave rise to complementary protection obligations under s.36(2)(aa) of the Act.
p)Further or in the alternative, the IAA wrongly required the Applicant to demonstrate a Convention-nexus to the risk of significant harm he faced in order to fall within complementary protection criteria under s.36(2)(aa) of the Act.
The Minister’s Submissions
The Minister relevantly contended:
a)The Applicant’s claims to fear harm in Bangladesh were comprised of the same factual substratum. The Applicant’s claims for protection rested entirely on his political opinion or imputed political opinion as a BNP supporter (and his religion as a Sunni Muslim, although the IAA’s treatment of that claim is not challenged in these proceedings).
b)The Applicant did not claim that there was any other reason (aside from the BNP membership or affiliation) why he would suffer intentionally inflicted harm. For example, he did not claim that he had any individual profile which might lead him to suffer harm, or that he would be attributed with any non-Convention based characteristic which would lead any person or group in Bangladesh to intentionally harm the Applicant.
c)The Applicant’s express claims for protection arose in relation to a fear of harm from AL members on account of his political opinion.
d)The Applicant’s submissions point to 3 incidents which he claims the IAA accepted, and argues that it was therefore incumbent on the IAA to consider the risk of harm in the future. However, the Applicant’s argument overlooks the critical aspect of the IAA’s reasons regarding the motivation for the past harm, and involves a misunderstanding of the IAA’s reasons.
e)The logical starting point where an Applicant relies on their past experiences is to determine whether the events happened as claimed, and if so, whether they constituted persecution, and whether that persecution was for a Convention reason: Abebe v The Commonwealth (1999) 197 CLR 510 per Gleeson CJ and McHugh J at [82]; see also per Gummow and Hayne JJ at [192]. That assessment necessarily involves an assessment of the motivation for the past harm: SZSXE v Minister for Immigration and Border Protection (2014) 145 ALD 79; CDY15 at [25]-[27].
f)The IAA’s findings as to the motivation for the past harm are critically important. It is apparent that the IAA found the claimed past harm did not involve the requisite element of intention and systematic and discriminatory conduct as required by s.5J of the Act. In other words, the IAA never accepted that the Applicant would be persecuted within the meaning of the Act.
g)In relation to the mid 2009 incident, the IAA accepted that after a particular meeting, AL activists threatened the Applicant to extort money from him and hit him when he did not have any money. However, the IAA did not accept that the Applicant was of interest of the AL. The IAA found that the incident was an opportunistic attempt by AL supporters to intimidate the Applicant: [17].
h)In relation to the December 2009 incident, the IAA accepted that the AL may have targeted the Applicant’s father’s business for extortion and that the Applicant (who was at the shop) was hit and money was taken from the shop till: [18], [26]. The IAA found however that the target was the Applicant’s father who was the owner of the shop: [18].
i)In relation to the September 2010 incident, the IAA accepted that the Applicant may have suffered an injury to his arm and leg. However, the IAA did not accept that the Applicant was attacked by the AL due his political affiliation or for any other reason: [19].
j)In summary, none of the 3 incidents relied on by the Applicant were found to constitute persecution. They were instances of past low level harm which did not involve any motivation.
k)These attacks were opportunistic and do not constitute persecution within the meaning of s.5J of the Act because they did not involve systematic and discriminatory conduct: s.5J(4)(c) of the Act. It was therefore not part of a course of systematic conduct directed at the Applicant.
l)The December 2009 incident was not targeted at the Applicant either as an individual or as a member of a class, whilst the mid-2009 and September 2010 attacks were random, opportunistic attacks.
m)Here, the IAA clearly rejected the motivation for the past attacks: [17]-[19], [26]. It was entitled to rely on its earlier reasoning (MZYXS v Minister for Immigration and Citizenship [2013] FCA 614 at [31]) without expressly reiterating its reasons for rejecting the motivation.
Consideration
A non-citizen who does not satisfy the criteria for a protection visa is nevertheless, under s 36(2)(aa) of the Act, entitled to a protection visa if the Minister “has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm”.
Section 36(2A) of the Act provides that a non-citizen will suffer “significant harm” if:
a)the non-citizen will be arbitrarily deprived of his or her life; or
b)the death penalty will be carried out on the non-citizen; or
c)the non-citizen will be subjected to torture; or
d)the non-citizen will be subjected to cruel or inhuman treatment or punishment; or
e)the non-citizen will be subjected to degrading treatment or punishment.
In assessing whether or not an error has occurred here in relation to the IAA’s obligations when assessing any Complementary claims, the Court is guided by the overview provided by Derrington J in CDY15. Relevantly, His Honour wrote that the question to be determined in assessing whether an Applicant is entitled to any Complementary protections is:
23.…whether, as a necessary and foreseeable consequence of the applicant for a visa being removed to a receiving country, there is a “real risk” that he or she will suffer significant harm. That involves an evaluation of the harm which the applicant might suffer in the future and that assessment requires past facts and events to be evaluated for the purposes of ascertaining whether a propensity exists for the applicant to encounter harm in the future. Highly relevant to that inquiry is whether the applicant has suffered any previous infliction of harm and the circumstances in which it occurred. If it were the case that third parties inflicted harm on the applicant and had reasons and motivation for doing so and those reasons and motivations remained extant at the time when the decision is made, the decision maker might rightly assume that there exists a propensity for harm to be suffered by the applicant at the hands of those third parties in the future. Conversely, if the motivation or reasons behind the infliction of the initial harm have expired or lapsed, a decision maker might rightly consider that the prospect of the applicant suffering harm in the future from the identified third parties does not exist.
24.That is not to say that the identification of motivation for the infliction of past harm is a necessary requirement. It is possible to contemplate circumstances where the motivation for prior incidents is not known but the frequency of the infliction of harm or the circumstances are such that it is possible to reach the conclusion that there exists a real risk of the applicant suffering significant harm in the future. That said, such circumstances (outside of war zones and the like) will be unusual and it is likely that they will only occur where they generate an assumed or implicit motivation for the infliction of past harm which can be seen to continue at the time of the making of the decision. Nevertheless, in general, as a matter of logic it is the motivation behind past inflictions of harm on an applicant which make that factor relevant to a consideration of whether similar harm is likely to be inflicted in the future. In circumstances where the reason or motivation for the past infliction of harm is not known, the fact that the applicant has sustained that harm, of itself, must necessarily be of little significance in deciding whether, in the future the applicant might be at risk of similar harm. Put another way, it must be that, in all but the most exceptional cases, the existence of prior acts of harm for which no reason or motivation is known cannot lead to the conclusion that the victim of those acts of violence faces any risk of similar harm in the future.
The Federal Court’s decision in CDY15 was the subject of extensive discussion and analysis before this Court in relation to the matter at hand. It is also one of the few higher authorities directly on point which this Court can turn to for guidance.
The factual context and judicial analysis provided in CDY15 thus merits a more detailed analysis than might otherwise be provided by this Court in relation to a matter of this sort.
In CDY15, the appellants were Malaysian citizens (a husband and wife). They sought protection visas. A Ministerial delegate refused to grant the relevant visas. The appellants then applied to the Administrative Appeals Tribunal for a review of that decision. The Tribunal upheld the delegate’s decision. That decision was then upheld by the Federal Circuit Court of Australia. The Federal Circuit Court decision was then appealed to the Federal Court of Australia and upheld on appeal.
In summarising the appellants’ protection claims, Derrington J noted that the first appellant claimed that (in Malaysia) two of his brothers (who were members of a political party) were attacked by members of a gang as they were returning from a political party meeting. The appellants claimed that the attack was politically motivated. One of the first appellant’s brothers then killed the alleged leader of the gang. That brother was tried, convicted and was sentenced to death. The other brother involved in the attack was later killed in a car accident. The appellants alleged that this death was suspicious and caused by the gang members. The first appellant claimed that, subsequently, he was threatened, attacked and harassed by the gangsters seeking retribution for the death of their leader. It was for that reason, he claimed, that he needed a protection visa. The same grounds were relied upon for the purposes of claiming that they were entitled to a visa pursuant to the Complimentary Protection criterion in s.36(2)(aa) of the Act.
His Honour noted that, on the basis of several credibility findings, the Tribunal did not accept that the brother was attacked by a gang or that the attack was politically motivated. It concluded that the victim of his brother’s murder was not a gang member or leader and it did not accept that the victim or his alleged gang attacked his brother for political reasons or otherwise. It followed that it did not accept that the attacks on the first appellant arose from gang related violence or for political reasons.
Overall, the Tribunal accepted that the first appellant had been attacked on two occasions. It did not, however, accept the claimed motivation for those attacks. Rather, the Tribunal concluded that there may have been other reasons why the first Applicant had been attacked on a number of occasions but, if there were, the appellant did not disclose them. It followed that the Tribunal did not “accept on the evidence before it that there was a real chance or risk that the Applicant will be the victim of similar attacks or face serious or significant harm in the foreseeable future.”
Ultimately, as summarised by Derrington J, the Tribunal found that the appellants did not meet the criteria for the Visa as set out in s 36(a) and (aa) and affirmed the decision of the Delegate. The Tribunal decided (at [150]) that the appellants did not face a real chance of serious harm from members of the alleged gang because of their affiliation with the brother, arising from the brother’s role in and conviction for an alleged gangster’s death, the first appellant’s coordinating or assisting with the brother’s legal proceedings or any Convention ground. That being so, the Tribunal was not satisfied that the appellants’ fears of persecution were well-founded. Further, it was not satisfied (at [151]) “that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia, there is a real risk that either of the appellants will face significant harm” by reason of those identified circumstances.
As explained by Derrington J (at [32]), much of the first appellant’s story or narrative underpinning his claims to threats of harm were disbelieved and rejected by the Tribunal – noting, in particular, [135] to [146] of the reasons of the Tribunal where the majority of the evidence advanced by the appellants as founding the existence of a threat if they return to Malaysia is rejected. His Honour noted, in particular, that at [128] and [129] of the Tribunal’s reasons, the Tribunal found as follows:
128. … Based on its concerns and the evidence before it, the tribunal does not accept that [AB] (the murder victim) or his gang attacked [XY] (the first appellant’s brother) or his colleagues for political reasons or otherwise.
129.Given that the tribunal does not accept the applicant’s claim that [AB] was a gang leader or member, it follows that the tribunal does not accept the applicant’s claim that attacks and alleged threats were made against him and his family from a gang in revenge for the death of their leader.
His Honour explained that, under the heading “Future risk of harm”, the Tribunal then considered whether the appellants were subject to a risk of serious or significant harm in the reasonably foreseeable future or whether the first appellant had a well-founded fear of persecution. At [147] of its reasons it said:
As noted above the tribunal accepts that the applicant suffered two incidents of harm in the past but has not accepted the applicant’s claims regarding the reasons or motivations for those attacks, namely that they were caused by [AB]’s gang and because of the [first appellant’s] association [XY]. There are many plausible reasons why the [appellant] could have been attacked on those two past occasions that, for whatever reason, he has chosen not to disclose. Given that the tribunal has rejected the claims he has made about the motivations behind those attacks, the tribunal does not accept on the evidence before it that there is a real chance or risk that the applicant will be the victim of similar attacks or face serious or significant harm in the reasonably foreseeable future.
The Tribunal then concluded:
150.Having regard to the evidence before it and its finding, the tribunal does not accept that either of the applicants face a real chance of serious harm from members of [AB]’s gang for reasons of their family relationship with [XY], arising from [XY]’s role in and conviction for [AB]’s murder, the applicant’s coordinating or assisting [XY]’s legal proceedings or for any Convention ground. The tribunal is not satisfied that the applicants’ fears of persecution are well-founded.
151.The tribunal is further not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia, there is a real risk that either of the applicants will face significant harm from members of [AB]’s gang for reasons of their family relationship with [XY], arising from [XY]’s role in and conviction for [AB]’s murder, the applicant’s coordinating or assisting [XY]’s legal proceedings or for any other reason.
152.For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c). As they do not satisfy the criteria for a protection visa, they cannot granted the visa.
The Tribunal’s decision was upheld by the Federal Circuit Court. The thrust of the appellants’ case before Derrington J was that the Federal Circuit Court judge “did not appreciate that the Tribunal had erred by applying findings relating to the appellants’ claims on Convention grounds to their claims based on the Complimentary protection criterion.”
Derrington J rejected that argument. His Honour found:
21.The very significant difficulty for the appellants in this matter is that the only ground advanced by them as giving rise to any risk of significant harm if they were returned to Malaysia for their s 36(2)(aa) claim, was the assertion that the attacks on the first appellant arose by reason of the fact that his brother had killed the leader of a gang in the context of political disputation. The risk of future injury was only said to arise because other gang members would seek retribution on the first appellant. This was the same allegation which founded the Convention claim. Once the Tribunal had determined that there was no gang or political involvement in the attack by the first appellant’s brother or in the past attacks on the first appellant, the foundation of the appellants’ assertion necessarily fell away.
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25.Mr McDermott, for the Minister, referred to the decision of Wigney J in SZSXE v Minister for Immigration and Border Protection (2014) 145 ALD 79 in support of the proposition that the motivation for past acts of violence against an applicant is relevant to the consideration of whether there exists a risk of harm in the future. There, the applicant complained that the merits reviewer failed to consider his s 36(2)(aa) claim because he conflated it with a consideration of the test for refugee status under s 36(2)(a). The merits reviewer had determined that the applicant had suffered significant harm at the hands of the Taliban in Afghanistan, but that it was a random act of brutality on their part and that they did not specifically target him for any Convention reason. Wigney J observed that the merits reviewer had set out the correct tests in their reasons and that indicated that they had turned their mind to the correct question. The reviewer had also observed that the applicant’s claim in relation to the Complimentary Protection criterion relied upon essentially the same facts as the claim for protection as a refugee. This was not, as his Honour observed, surprising or controversial as it is usual for a person in the applicant’s position to advance a body of evidence about their past persecution or mistreatment and the consequent fear and belief that they will suffer harm if returned to their country of origin (at [33]). The necessary consequence is the application of the same set of facts to separate tests. The applicant in that case submitted that the merits reviewer impermissibly took his determination when considering the refugee claim that the Taliban did not have a motivation to harm the applicant into account when considering the s 36(2)(aa) criteria. He submitted that motivation was irrelevant to that latter consideration but was relevant to the Convention ground where the reason for the persecution was relevant. His Honour found that the merits reviewer’s decision that the applicant was not targeted by the Taliban, or was not seen by them as government collaborator, meant that he would be of no significant interest to them if he returned to Afghanistan. On that basis there was no real risk that he would suffer significant harm in the future at their hands. His Honour said:
[54]The past motivation of the Taliban was plainly relevant to a consideration of whether there was any real risk of the appellant suffering serious harm from the Taliban in the future. As counsel for the minister put it, in her helpful submissions:
In a case where it is accepted that the appellant did experience harm in the past, which is the situation in this case, it was entirely appropriate for the reviewer to consider the context and circumstances of that harm (including the motivation of the perpetrators) when undertaking the prospective assessment of whether there were substantial grounds for believing that there was a real risk that the person will suffer significant harm if removed from Australia.
[55]That is undoubtedly correct. The appellant’s submission that the motivation of the Taliban was irrelevant to a consideration of the complementary protection criterion is rejected.
26.Thereafter, his Honour held that the decision maker was entitled to transpose the finding concerning the lack of motivation from the consideration of the Refugee Convention ground to the consideration of the Complimentary Protection Criterion. He was entitled to draw on the same body of evidence in considering each question.
27.The observations of Wigney J in SZSXE are plainly correct and applicable in the circumstances of the present case. Here the Tribunal applied its findings in relation to the question of whether there was any identifiable motivation for the previous attacks on the first appellant to both the Convention grounds claim and the s 36(2)(aa) claim. The findings of the Tribunal were to the effect that the appellants’ explanations for the attacks on the first appellant were untrue and not accepted. This had the result that there was no evidence as to why the appellant was attacked on the two previous occasions. That had the dual effect of denying the possible existence of a Convention ground and removing the existence of any real risk of significant harm being suffered in the future.
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37.There is no jurisdictional error in the Tribunal applying its earlier findings (being the rejection of the appellants assertions as to why harm was inflicted upon him) for the purposes of determining whether or not he would face a real risk of harm if returned to Malaysia for the purposes of s 36(2)(aa). The rejection of the appellants’ assertions as to the motivations for the attacks and their assertions of the circumstances surrounding them which suggested a motivation for the attacks, had the effect that the fact of the attacks having occurred carried with it no suggestion that similar harm would be suffered in the future.
38.The short answer to the appellants’ submission that the Tribunal was required to consider the circumstances of the attacks to the extent that they had not been rejected by the Tribunal for the purposes of its consideration under s 36(2)(aa), is that it did. All that relevantly remained of the appellants’ narrative concerning those events was the fact of the attacks having taken place. As appears from the above cited paragraphs of the Tribunal’s reasons that is what was considered and it was held not to give rise to any real risk of harm.
39.Once the Tribunal had rejected the first appellant’s evidence that he was being targeted because of the actions of his brother, it was not required to speculate as to why it was that he had been attacked on two previous occasions or whether he would be at risk of similar attacks in the future or face serious or significant harm in the future….
… Here the Tribunal made findings which removed any rationale for the attacks which were inflicted upon him and that necessarily negated the prospect of the first appellant being at risk of similar violence in the future. The best that can be said of the past attacks is that they were serious and unfortunate events, but there is nothing in their circumstances, as found by the Tribunal, which suggest that they may reoccur.
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41.It is plain that the Tribunal correctly dealt with both the Convention grounds and the Complimentary protection criterion and that it was cognisant of the legal tests to be applied in each case. At the commencement of its reasons the Tribunal made a clear and distinct reference to the separate criteria required to be satisfied by s 36(2)(aa) (see, in particular, [15] – [17]) and after considering the evidence and material in detail undertook the task of making findings in relation to the claims advanced. There was no conflation of the tests or the reasoning relevant to each. The factual foundation of each claim was the same with the result that the basis for the rejection of the Convention claim could be relied on for the rejection of the claim based on the Complimentary protection criterion.
The Court notes that counsel for the Applicant directed the Court’s attention to two Federal Circuit Court decisions that, counsel contended, stand for the proposition that the IAA will (when it addresses an Applicant’s Complementary Protection claims) fall into jurisdictional error if it does not specifically reference the factual findings it made when it assessed the Applicant’s Convention claims.
The Court does not accept that it is bound by the decisions in SZSFK and SZRLK or that these decisions are “on point” in relation to the matter currently before this Court. These decisions pre-date the Federal Court’s decision in CDY15. In SZSFK and SZRLK, their Honours did not have the benefit of the Derrington J’s overview of the jurisprudence relevant to a matter of this sort. This Court is bound by the decision in CDY15 and, for the reasons that follow, accepts that, applying that decision to the specific facts of this case, it cannot be said here that the IAA erred in its approach to 36(2)(aa) of the Act.
Applying CDY15 to the specific facts of this case, it is clear here that the Applicant made a Complementary claim to fear harm on the basis of the attacks he referenced. That much is clear from the Applicant’s SHEV application, where he states that he had been assaulted in the past and was worried that he would be attacked again.
It is worth stressing here that this particular Complementary claim does not exist in a vacuum and cannot simply be segregated from the Applicant’s Convention claims. Rather, the claim to fear harm arises within the context of a series of quite violent attacks that, on the Applicants own evidence, occurred at the hand of the AL in Bangladesh because of his political affiliations (as either a member of supporter of the BNP). The Applicant here, on the evidence, does not assert that he was attacked for any reason other than his political affiliations. This is crucial to any s.36(2)(aa) analysis.
The three attacks in question were not disputed by the IAA. However, the reason for those attacks was disputed by the IAA when it assessed the Applicant’s s.36(2)(a) Convention claims, as follows:
a)at [17], the IAA “accept[ed] that local AL activists may have approached and threatened the applicant, attempted to extort money from him and hit him when it was evident he had no money” but found that this attack was not directed at the Applicant because he was a “persuasive BNP recruiter”; rather, the attack was simply “opportunistic”;
b)at [18], the IAA accepted that “AL members may have targeted his father’s business for extortion” (supported by country information indicating there is low level violence associated with extortion of BNP business owners by AL in rural areas). The IAA also accepted that “the applicant who was at the shop on this occasion was hit and money was taken from the shop till.” However, the IAA found that this attack was not politically motivated against the Applicant; rather, it was an attack directed at the owner of the shop (i.e. the Applicant’s father); and
c)at [19], the IAA “accept[ed] that the applicant may have suffered an injury to his arm and leg”. However, when considering the perpetrators’ motivations for the attack, the IAA found that the attack was an act of violence without any political or other motivation, stating: “I do not accept that the applicant was attacked by the AL due to his political affiliation, his former political activities or for any other reason.”
In this context, it is also worth noting that the IAA was not satisfied that the Applicant's father's shop was deliberately destroyed by AL because of his or his father's support of the BNP.
Here, it is clear that the IAA accepted that the Applicant was attacked. However, the IAA rejected the Applicant’s claims as to the motivations for the attacks and his evidence surrounding the attacks and why they occurred – evidence which, the IAA found, suggested no political motivation for the attacks.
The question that follows is whether the IAA was then required to specifically address these attacks under its assessment of s.36(2)(aa).
To again highlight the IAA’s findings in this regard, after outlining the relevant legislative requirements, the IAA then referenced its earlier findings in relation to the Applicant’s Conventions claims that he would be socially ostracised as a failed asylum seeker on return to Bangladesh. Noting that it did not accept there is a real chance of the Applicant being ostracised for this reason or that this constitutes serious harm, the IAA concluded that on the evidence it was not satisfied that being socially ostracised would result in the Applicant being arbitrarily deprived of his life, or would constitute the death penalty, or torture. Nor was the IAA satisfied that such ostracism amounts to cruel or inhuman treatment or punishment or degrading treatment or punishment. The IAA also noted that it had found that there was not a real chance that the Applicant would face other forms of harm in Bangladesh as a failed/returning asylum seeker and as the 'real risk' test imposes the same standard as the 'real chance' test, it was also not satisfied that there is a real risk of the Applicant suffering such harm on the return to Bangladesh.
No specific reference is then made of the violence experienced by the Applicant and accepted as acts of violence by the IAA at paragraphs 17 to 19. Rather, the IAA concluded:
44.I have otherwise found that the applicant does not face a real chance of any harm on return to Bangladesh due to his former political involvement, his previous or future support of the BNP, his father's BNP support, as a Sunni Muslim or due to his illegal departure. In MIAC v SZQRB (2013) 210 FCR 505, the Full Federal Court held that the 'real risk' test imposes the same standard as the 'real chance' test applicable to the assessment of 'well-founded fear'. Therefore for the reasons stated above I am not satisfied the applicant faces a real risk of significant harm.
The question here is: is this enough? Within the context of this matter, the Court finds that it is. The Court does not accept that the IAA was required to specifically reference the particular incidents noted above in relation to its assessment of s.36(2)(aa).
To paraphrase Derrington J, the difficulty the Applicant faces here is that the facts and evidence that underpin his claim about a risk of significant harm if he is returned to Bangladesh are clearly linked to his own evidence and concerns about the harm that might arise because of his political leanings. The allegations and concerns raised in relation to his Complementary claims are the same as those which ground his Convention claims.
Here, once the IAA had determined that any harms that arose in the past were not, in any way, politically motivated – but rather, random in nature – the foundation of the Applicant’s claims as a whole necessarily fell away.
In these circumstances, there is no jurisdictional error in the IAA applying its earlier Convention findings (being the rejection of the Applicant’s evidence as to why he was assaulted) for the purposes of determining whether or not he would face a real risk of harm if returned to Bangladesh for the purposes of s 36(2)(aa) of the Act.
Here, as in CDY15, the rejection of the Applicant’s evidence as to the motivations for the violence he experienced (which he says suggested a political motivation for the attacks), had the effect that the fact of the attacks having occurred carried with it no suggestion, on the evidence before the IAA, that similar harm would be suffered in the future.
Here, the IAA relied on its findings made pursuant to 36(2)(aa) of the Act when it wrote:
I have otherwise found that the applicant does not face a real chance of any harm on return to Bangladesh due to his former political involvement, his previous or future support of the BNP, his father's BNP support, as a Sunni Muslim or due to his illegal departure.
This is sufficient. The Applicant’s claims about the acts of violence inflicted on him all relate to his specific claims and his own evidence about his political affiliations. Here, the IAA determined that the violence in question was not politically motivated. It references that conclusion in its 36(2)(aa) analysis. The fact that the IAA does not specifically reference the attacks in question does not, in the circumstances of this case, point to jurisdictional error.
Although the Complementary analysis provided by the Tribunal in CDY15 is more substantive and detailed, the Court does not accept that the IAA is required to specifically reference each factual finding made in its analysis of an Applicant’s Convention claims. To oblige the IAA to do so risks requiring the IAA to undertake separate determinations of fact in relation to each ground as advanced. To again reference Derrington J in CDY15 (at [42]):
The Tribunal is entitled to make factual findings on the basis of the evidence provided to it by the applicant and what other evidence is available. If such findings of fact are relevant to the application of two or more statutory tests, the Tribunal is entitled to rely upon the finding in relation to each. To require the Tribunal or other decision maker to undertake a wholly nugatory task of considering the material a second time would be irrational. … [I]t is not surprising in cases of this nature that a finding of fact by the Tribunal may well diminish the factual foundation of two or more distinct claims.
Here, the factual basis for the Applicant’s Convention and Complementary claims is the same. All the evidence points to harm on the basis of a political affiliation. In circumstances where that occurs, the basis of the IAA’s rejection of the Convention claims (i.e. that no political violence was evident) can be relied on for the rejection of the Applicant’s claim for Complementary protection. The IAA makes specific reference here to its Convention findings, noting that it found no political motive for any harm infected in the past. That finding clearly captures any Complementary claims that rely, as they do here, on the same factual context for proof of harm in the future.
In this factual context, the approach taken by the IAA is jurisdictionally sound.
Conclusion
For the reasons outlined above, the Court finds that there is no jurisdictional error demonstrated by the Applicant’s sole ground of review.
Accordingly, the Applicant’s application for judicial review is dismissed.
I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Associate:
Date: 15 February 2019
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