AQA16 v Minister for Immigration

[2017] FCCA 864

FEDERAL CIRCUIT COURT OF AUSTRALIA

AQA16 & ORS v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 864

Catchwords:
MIGRATION – Review of decision by Administrative Appeals Tribunal – whether Administrative Appeals Tribunal’s decision affected by jurisdictional error – whether the Administrative Appeals Tribunal considered all claims made by the applicants – whether the decision of the Administrative Appeals Tribunal was irrational, unreasonable or illogical – no jurisdictional error – application dismissed.

Legislation:
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5, 31, 36, 65, 411, 422B, 424A, 424AA, 425, 474
Migration Regulations 1994 (Cth), reg.2.01.

Cases Cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
SZSJB v Minister for Immigration and Border Protection [2017] FCA 229
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593
Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389
SZSSC v Minister for Immigration and Border Protection [2014] FCA 863
NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695
SZSJB v Minister for Immigration and Border Protection [2017] FCA 229
Gill v Minister for Immigration and Border Protection [2017] FCAFC 51
ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16
Minister for Immigration and Border Protection v SZRKT (2013) 212 FCR 99

First Applicant: AQA16

Second Applicant: AQB16

Third Applicant: AQC16

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 658 of 2016

Judgment of: Judge Emmett

Hearing date: 26 April 2017

Date of Last Submission: 26 April 2017

Delivered at: Sydney

Delivered on: 30 May 2017

REPRESENTATION

Solicitors for the Applicant: Nigel Dobbie
(Dobbie & Devine Lawyers)

Counsel for the Respondents: Ms Reg Graycar

Solicitors for the Respondents: DLA Piper Australia

FEDERAL CIRCUIT
COURT OF AUSTRALIA AT
SYDNEY

SYG 658 of 2016

AQA16

FIRST APPLICANT

AQB16

SECOND APPLICANT

AQC16

THIRD APPLICANT

AND

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

FIRST RESPONDENT

ADMINISTRATIVE APPEALS TRIBUNAL

SECOND RESPONDENT

REASONS FOR JUDGMENT

1. This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Administrative Appeals Tribunal (“the Tribunal”) dated 26 February 2016.

2. The first named applicant is a citizen of Bangladesh and is an atheist who fears harm from religious groups in Bangladesh as a result of his non-religious beliefs (“the Applicant”).

3. The second applicant is the wife of the Applicant. She is a citizen of Bangladesh and of Christian faith, who fears harm from terrorist groups in Bangladesh. She also seeks protection on the basis of being a member of the same family unit as her husband.

4. The third applicant is the son of the Applicant and the second applicant, who is 8 years old. He was born in Australia on 9 April 2009. He seeks protection on the basis of being a member of the same family unit as his parents.

5. Prior to considering the proceeding before this Court, these Reasons provide the relevant procedural background, a summary of the legislative framework, a summary of the Applicant’s claims in support of a protection visa, a summary of the decision of a delegate of the first respondent (“the Delegate”), and a summary of the Tribunal’s review and decision.

Background

1. The Applicant and the second applicant arrived in Australia on 16 August 2007 having departed legally from Bangladesh on passports issued in their own names.

2. On 13 February 2014, the applicants lodged applications for protection (Class XA) visas with the Department of Immigration and Citizenship (“the Department”).

3. On 4 September 2014, the Delegate refused the applicants’ applications for protection visas.

4. On 18 September 2014, the applicants lodged an application for review of the Delegate’s decision with the Tribunal.

5. On 26 February 2016, the Tribunal affirmed the decision of the Delegate not to grant the applicants protection visas.

6. On 22 March 2016, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision. Neither the second named applicant nor the third named applicant made separate claims for judicial review and their applications for judicial review are wholly dependent on those of the Applicant.

Legislative framework

1. Pursuant to s.65(1)(a) of the Act, if satisfied of a number of matters, the first respondent may grant a visa. Section 65(1)(b) of the Act provides that, if the first respondent is not satisfied about those matters, then the Minister must refuse to grant the visa.

2. Section 31(1) of the Act provides that there are to be prescribed classes of visa. One class of visa is a Protection (Class XA) visa (reg.2.01 of the Migration Regulations 1994 (Cth) (“the Regulations”) and Schedule 1 to the Regulations).

3. Section 36(2)(a) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia in respect of whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).

4. Article 1A(2) of the Convention relevantly defines a refugee as a person who:

   “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”

5. Section 36(2)(aa) of the Act provides that:

   “(2)  A criterion for a protection visa is that the Applicant for the visa is:

   (aa) a non-citizen in Australia (other than a citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because 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.”

6. Sections 36(2A) and 5 of the Act defines “significant harm.”

7. Under s.411(1)(c) of the Act, a decision to refuse to grant a protection visa is a decision which may be reviewed by the second respondent.

8. The requirements of the natural justice hearing rule are exhaustively stated in Division 4 of Part 7 of the Act (s.422B(1) of the Act). Division 4 Part 7 includes ss.424A and 425, which provide that:

   “424A  Information and invitation given in writing by Tribunal

   (1)  Subject to subsections (2A) and (3), the Tribunal must:

   (a) give to the Applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review.

   425  Tribunal must invite Applicant to appear

   (1) The Tribunal must invite the Applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.”

9. Section 424AA of the Act permits the Tribunal to give orally to an applicant clear particulars of any information that the Tribunal considers would be the reason or part of the reason for affirming the decision under review. The Tribunal must ensure that the applicant understands the relevance of the information and the consequences of any information being relied upon. The Tribunal must also invite the applicant to comment on or respond to the information and advise the applicant that the applicant may seek additional time to comment on or respond to the information.

10. Under s.474(2) of the Act, a decision of the second respondent is a “privative clause decision”. Under s.474(1)(a) of the Act, a privative clause decision is final and conclusive.

11. However, a purported decision of the second respondent which is affected by jurisdictional error is not a decision which is made under the Act and therefore is not a privative clause decision (see Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476).

The Applicant’s application for a protection visa

1. The Applicant provided a statement in support of his protection visa application in which he stated:

   a)That he is an atheist who was physically attacked by a group of his friends in Bangladesh as a result of his non-religious beliefs. He was told by the group that attacked him that he would be killed if he mentioned his atheist beliefs again and told not to go near the area that the attack took place. He stayed away for a few days but had to return as he worked in an office in the area.

   b)He would be killed, physically harmed or imprisoned for professing to be an atheist if he were returned to Bangladesh. The Applicant referred to a trip he made back to Bangladesh in 2012 during which he was told by members of the same group that attacked him that he should stay out of the area.

The Delegate’s decision

1. On 25 August 2014, the applicants attended an interview with the Delegate.

2. In regards to the Applicant, the Delegate did not accept that the Applicant is an atheist. The Delegate found that even if the Applicant was an atheist, he does not have the level of profile that would attract Convention related persecution in Bangladesh.

3. The Delegate did not accept that the Applicant was ever threatened or physically harmed by anyone by reason of his atheism in Bangladesh prior to his arrival in Australia. The Delegate referred to the fact that the Applicant remained in Bangladesh five weeks after the grant of his visa to Australia. The Delegate was satisfied that this delay demonstrated that the Applicant did not fear persecution in Bangladesh.

4. The Delegate also referred to the Applicant’s trip to Bangladesh on 28 November 2012 for a period of about six weeks. The Delegate was satisfied that the Applicant’s ability to stay in Bangladesh for such period of time without encountering any difficulties indicated that his claim to fear persecution by reason of his atheism is not genuine and well-founded.

5. With respect to the second applicant, the Delegate was not satisfied that she would face any Convention related persecution in Bangladesh by reason of her Christianity if she were to return there. The Delegate was satisfied that the second applicant’s six week trip to Bangladesh in November 2012 without difficulties indicated that her claim to fear persecution is not genuine and well-founded.

6. Accordingly, on 4 September 2014, the Delegate refused the applicants’ applications for protection visas on the basis that the applicants are not persons to whom Australia has protection obligations under the Convention and does not meet the alternative complementary protection criterion.

The Tribunal’s review and decision

1. On 18 September 2014, the applicants lodged an application for review of the Delegate’s decision by the Tribunal.

2. The applicants provided further documents in support of their review application including written submissions.

3. On 15 June 2015, the Tribunal wrote to the applicants informing them that the Tribunal had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the applicants to attend a hearing on 16 July 2015 to give oral evidence and present arguments.

4. On 16 July 2015, the applicants attended the Tribunal hearing and gave evidence.

5. The Tribunal noted that it had before it the Department’s file, the Delegate’s decision record and other materials available to it from a range of sources.

6. The Tribunal explored the applicants’ claims with them in some detail at the hearing and put to their concerns it had about their evidence, noting their responses. The Tribunal put to the applicants country information for comment. The Tribunal identified with particularity the country information to which it had regard.

7. In regards to the Applicant, the Tribunal accepted that he is an atheist. The Tribunal accepted that there was an incident in 2006 where a group of friends threatened to kill him as a result of his atheist remarks.

8. However, the Tribunal did not accept the Applicant’s claim that he faced a real chance of harm in Bangladesh. The Tribunal referred to the fact that the Applicant had travelled to Bangladesh in 2012 for a six week trip, and had not experienced any difficulties. The Tribunal also referred to relevant country information which does not suggest that the Applicant faces a real chance of harm in Bangladesh on account of his atheist beliefs.

9. In regards to the second applicant, the Tribunal accepted that she is a Catholic. It also accepted that her family home was attacked in 1997 and her father was attacked in 2005. Although the Tribunal accepted that the second applicant was involved in a car accident in 2007, it did not accept that she was deliberately targeted as claimed.

10. The Tribunal did not accept that the second applicant’s family continued to be threatened by terrorist groups. The Tribunal did accept that housing was built on the second applicant’s family property, but did not find that the second applicant would face a real chance of harm in Bangladesh for this reason.

11. The Tribunal did not accept that the second applicant would face a real chance of harm in Bangladesh on account of her Christianity. The Tribunal considered the available country information and found that the second applicant’s fear of persecution by reason of her Christianity was not well-founded.

12. Having considered the applicants’ claims, the Tribunal found that there was no evidence to support a finding that the applicants would suffer harm for a Convention related reason were they to return to Bangladesh, that the applicants did not have a well-founded fear of persecution in Bangladesh and for this reason the applicants were not persons to whom Australia owed protection obligations.

13. The Tribunal also considered whether the applicants met the alternative criteria for complementary protection under s.36(2)(aa) of the Act and concluded that he did not. Accordingly, the Tribunal found that there were no substantial reasons for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to the receiving country, Bangladesh, there was a real risk that the applicants would suffer significant harm.

14. Accordingly, having determined that the applicants did not satisfy the refugee criterion in s.36(2)(a) of the Act, or the alternative criterion in s.36(2)(aa) of the Act, the Tribunal affirmed the decision under review.

The proceeding before this Court

1. The Applicant was represented at the hearing by his solicitor, Mr Nigel Dobbie. 

2. By consent, Mr Dobbie was given leave to rely on the grounds of an Amended Application filed in Court. Ultimately, the only grounds relied upon by the Applicant in the Amended Application were Ground 1, Ground 4A(ii) and Ground 6. They are as follows:

   “1. The Second Respondent failed to discharge its core function to review the decision because it failed to consider a claim made by the First Applicant.

   Particulars:

   A(i) The First Applicant claimed that he was an atheist married to a Christian. The Tribunal failed to consider that claim. By failing to consider the First Applicant's claim, the Tribunal committed jurisdictional error.

   A(ii) The First Applicant claimed that he feared harm on the basis of being a 'free-thinker'. The Tribunal failed to consider that claim. By failing to consider the First Applicant's claim, the Tribunal committed jurisdictional error.

   A(iii) The First Applicant claimed that in 2012 he was threatened by the people who attacked him in 2006. The Tribunal failed to consider that claim. By failing to consider the First Applicant's claim, the Tribunal committed jurisdictional error.

   4. The decision of the Second Respondent is irrational, unreasonable or illogical

   Particulars:

   A(ii) It was illogical, or irrational, or unreasonable to find that the First Applicant was not threatened in Bangladesh in 2012, in circumstances where he claimed he met his 2006 attackers, and after he told them he lived abroad, they told him that it was better for him 'to live there', after he said that it was a threat, and that they said they were 'prepared to do anything to make Bangladesh a 'Sharia Law' country.

   6. The Second Respondent failed to discharge its core function to review the decision because it failed to have proper regard to relevant information before it

   Particulars:

   A(i) The Tribunal failed to consider the First Applicant's claims that two teenagers were arrested because of their blogging, despite not having a profile.

   A(ii) The Tribunal failed to consider information provided by the First Applicant, being an article published by Reporters Without Borders, that showed that on 13 March 2013, a committee had been created. And which is under the control of the Prime Minister's office, and which is tasked with identifying 'blasphemous bloggers and bringing them to justice'.”

   (Emphasis in original)

3. Mr Dobbie commenced his oral submissions by stating that the Applicant claims to be free-thinking and an atheist who proselytizes face-to-face. Mr Dobbie stated that the Applicant claimed to fear harm by reasons of being an atheist, a free-thinker, and a member of a Facebook group.

4. Mr Dobbie then took the Court through a bundle of relevant documents identified as “Court Book” filed on 26 April 2017, which was marked Exhibit 1A.

Ground 1

1. Ground 1 asserts that the Tribunal failed to consider the Applicant’s claims to fear harm because he was an atheist married to a Christian; a free-thinker; and, that in 2012 he was threatened by people who attacked him in 2006.

2. In relation to the Applicant’s claim in Ground 1A(i) to fear harm as an atheist married to a Christian, a fair reading of the Tribunal’s decision record makes clear that the Tribunal well understood that the Applicant’s wife was a Christian whereas the Applicant was an atheist. The Tribunal expressly stated that the Applicant “claims a fear of harm because he is married to the second applicant.”

3. With the exception of the claim of harm based on religion (or his lack of religious views), the Tribunal understood his other claims were made on a cumulative basis. The Tribunal accepted that the Applicant is an atheist. The Tribunal considered the Applicant’s claims separately to those of his wife, the second applicant. In its conclusion of its consideration of the claims, the Tribunal stated as follows:

   “The Tribunal has considered the first applicant's other cumulative claims. The Tribunal does not accept that the first applicant will face a real chance of harm in Bangladesh on the expression of his political opinions (either by reason of being an atheist or otherwise). As noted below, the Tribunal does not accept that the second applicant will face a real chance of harm in Bangladesh on account of her Christianity. Therefore, the Tribunal does not accept that the first applicant will face a real chance of harm in Bangladesh for that reason.”

   (Emphasis added).

4. Mr Dobbie submitted that by referring to “that reason”, the Tribunal was confining its consideration to the Applicant simply being married to a Christian and not with the added feature of the Applicant’s atheism.

5. A fair reading of the Tribunal’s decision record does not support such a contention. Whilst I accept Mr Dobbie’s submission that the Tribunal might have said “for those reasons” or referred expressly to his atheism and marriage to a Christian as a combined reason for a fear of harm, when read fairly, without an eye focused on error, the nub of the original claims of the Applicant and his wife were that the Applicant feared harm because he was an atheist and his wife feared harm because she was a practising Christian. The Applicant made a clearly articulated claim to fear harm because he was married to a Christian.

1. However, the Applicant did not make a clearly articulated and separate claim to fear harm because he was an atheist married to a Christian. Nevertheless, in my view, the Tribunal was aware of the Applicant’s cumulative claims to fear harm as well as his distinct claim to be an “atheist”. The Tribunal rejected all claims made by the Applicant.

2. In my view, the Court should not draw the inference that the Tribunal failed to consider such a claim where the reasons of the Tribunal are otherwise comprehensive and the clearly expressed fears of the Applicant were identified and considered.

3. I accept the first respondent’s submissions that a separate claim to fear harm by reason of the Applicant’s marriage to a Christian when he was an atheist was not a claim squarely raised. Nor does it appear to have been the subject of “substantial clearly articulated argument”, as disclosed in the Tribunal’s decision record (see SZSJB v Minister for Immigration and Border Protection [2017] FCA 229 per Perry J; Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 per Full Court of Federal Court; Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 per Gummow and Callinan JJ; SZSSC v Minister for Immigration and Border Protection [2014] FCA 863 per Griffiths J).

4. In NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695 (NAVK) at [15] (affirmed on appeal in NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 124) Allsop J stated as follows:

   “Whatever adverb or adverbial phrase is used to describe the apparentness of the unarticulated claim, it must, it seems to me, either in fact be appreciated by the Tribunal or, if it is not, arise sufficiently from the material as to require a reasonably competent Tribunal in the circumstances to appreciate its existence. A practical and common sense approach to everyday decision-making requires the unarticulated claim to arise tolerably clearly from the material itself, since the statutory task of the Tribunal is to assess the claims by reference to all the material, not to undertake an independent analytical exercise of the material for the discovery of potential claims which might be made, but which have not been, and then subjecting them to further analysis to assess their legitimacy.”

5. The Applicant’s statement in support of his protection visa application stated as follows:

   “Now I am not only who they will harm but my family too. Being my family Christian they would target them too. They might not even spare my 5 years old son. That is why I am asking protection from you. There is a high risk and possibility that I might me killed or harmed or jailed in Bangladesh and that is what happening to other people who are in Bangladesh and as I was attacked before I believe same kind of attack can occur anytime anywhere in my country.

6. In any event, the Tribunal rejected that the second applicant, being the Applicant’s wife, would face harm in Bangladesh because of her Christianity.

7. Having rejected those claims, even if a claim to fear harm as an atheist married to a Christian is said to have been squarely raised by the Applicant, the findings in respect of such a claim are subsumed in the Tribunal’s findings of greater generality, making it therefore unnecessary to consider such a claim separately (see Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 [47]; SZSJB v Minister for Immigration and Border Protection [2017] FCA 229 at [27]).

8. However, in light of the Tribunal’s acknowledgement of the cumulative claims made by the Applicant, I am satisfied that the Tribunal did consider whether the Applicant was at risk of harm as an atheist married to a Christian.

9. In relation to the assertion in Ground 1A(ii) that the Tribunal failed to consider the Applicant’s claim to be a free-thinker, the Tribunal specifically accepted that the Applicant was “likely to state opinions, political, areligious, or otherwise, which have the capacity to antagonise the society in which he mixed in Bangladesh.” What the Applicant meant by being a “free-thinker” is not further defined or explained by the Applicant. In the circumstances, if being a “free-thinker” could found a claim either on the basis of religion or political opinion, both those claims were considered by the Tribunal and rejected.

10. Those findings were open to the Tribunal on the evidence and materials before it and for the reasons it gave.

11. In relation to the assertion in Ground 1A(iii), the Applicant submits that the Tribunal failed to consider whether the Applicant was at risk by his attackers who he stated were “prepared to do anything to make Bangladesh a Sharia law country.”

12. This claim was said to arise by the Applicant in a statement provided by him in support of his protection visa where, inter alia, he stated as follows:

    “After 5 long years, when I went back to Bangladesh in 2012, I have seen that how things are becoming more and more dangerous. Half my stay was on Islamic parties strike and I also met with my attackers when I went back. These people are very active Islamic people now. When I met them they asked me where I have been all these years, I answered them that I live abroad and they said it is better for me to live there. It was a threat indeed. Now they are more powerful, working with the local mosque. They also told me that they are prepared to do anything to make Bangladesh a Sharia law country.”

    (Errors in original)

13. The context of the 2012 incident was the Applicant’s claim that in 2006 he was talking with a group of friends who asked him why he did not believe in a religion. The Applicant said he told them “all the religions are created by men and no god ever gave mankind any religion”. The Applicant claimed his friends then started hitting him, punching him and kicking him and told him that they would kill him and told him that he was not to go near their area again. The Applicant went on to say that he stayed in the village for a few more days and later moved, although he continued to receive threats from the “friends” over the telephone.

14. The Tribunal considered the Applicant’s claim that on 28 November 2012 the applicants left Australia and returned to Bangladesh where they remained for a period of 6 weeks. During that period the Applicant claimed to have met the “friends”. The Applicant claimed that the “friends” had said to him at that time that it was better for him to live away from Bangladesh and that he understood that to be a threat. However, the Tribunal found that the Applicant was not threatened or harmed in any way during that trip.

15. Mr Dobbie submits that the Applicant’s claim that the “friends” told him that they were prepared to do anything to make Bangladesh a Sharia law country squarely raises a claim to fear harm from those “friends”.

16. Again, I do not accept that such a claim was squarely raised. There is no other mention in the long and comprehensive claims made by the Applicant about any further elaboration of fear about the adherence of the “friends” to Sharia law in Bangladesh beyond the bare assertion in his statement.

17. Further, the Tribunal found that based on the Applicant’s own evidence, the Applicant had chosen to return to Bangladesh in 2012 and met again with the “friends”, but was not harmed during that time.

18. Again, even if such a claim was squarely raised requiring further consideration, which I do not accept, the Tribunal’s findings of greater generality that the Applicant was not threatened or harmed in any way in 2012 was a finding of greater generality that subsumed any claim that may have been made by the Applicant to fear harm arising from what the “friends” may have said in relation to their adherence to making Bangladesh a Sharia law country.

19. Accordingly, Ground 1 is not made out.

Ground 4A(ii)

1. Ground 4A(ii) contends that it was illogical, irrational or unreasonable for the Tribunal to find that the Applicant was not threatened in Bangladesh in 2012.

2. In support, Mr Dobbie submitted that where the Applicant had claimed to have met his attackers in 2012, told them he lived abroad and that they had responded that it was better for him to live abroad and they were prepared to do anything to make Bangladesh a Sharia law country, it was illogical, irrational or unreasonable for the Tribunal to find that Applicant was not threatened in Bangladesh in 2012.

3. The Applicant’s claim to have been threatened by “friends” in 2012 arose from what he said the “friends” said to him at that time as follows:

   “When I met them they asked me where I have been all these years, I answered them that I live abroad and they said it is better for me to live there. It was a threat indeed. Now they are more powerful, working with the local mosque. They also told me that they are prepared to do anything to make Bangladesh a Sharia Law country.”

4. In relation to that meeting with the “friends”, the Applicant told the Tribunal that he was not harmed by them at that time. The Tribunal accepted that the “friends” suggested that the Applicant leave Bangladesh but considered that this of itself could not be considered as a threat to the Applicant’s safety.

5. The Tribunal’s failure to specifically mention that the “friends” also told him that they were prepared to do anything to make Bangladesh a Sharia law country does not amount to a failure to consider a squarely raised and articulated claim by the Applicant that he feared harm in Bangladesh by reason of that statement. Neither at the hearing nor in the written submissions did the Applicant clearly articulate that he was threatened in Bangladesh in 2012 by reason of the intention of the “friends” to make Bangladesh a Sharia law country.

6. Mr Dobbie referred the Court to Gill v Minister for Immigration and Border Protection [2017] FCAFC 51 where the Full Court of the Federal Court of Australia referred to ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 where Griffiths, Perry and Bromwich JJ stated as follows:

   “As Robertson J stated in SZRKT at [122] it is not always a jurisdictional error for the Tribunal in reviewing the rejection of a protection visa claim to ignore relevant material, including corroborative evidence. Rather, as his Honour observed at [112] by reference to the Full Court's decision in VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 117 at [77], whether the Tribunal is obliged to consider a document will depend on the circumstances of the case and the nature of the document. With specific reference to the situation where corroborative evidence is ignored, his Honour added that other relevant factors include:

   (a) the cogency of the evidentiary material; and

   (b) the place of that material in the assessment of the review applicant's claims.”

7. In my view, the Tribunal’s finding that the Applicant was not threatened by the “friends” was a finding that was open to it on the evidence and materials before it and was not one that no reasonable Tribunal could make on the evidence before it (see Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 per Crennan and Bell JJ).

8. Accordingly, Ground 4A(ii) is not made out.

Ground 6

1. Ground 6 asserts that the Tribunal failed to consider the Applicant’s claim that two teenagers were arrested because of their blogging activities despite not having a profile; and that the Tribunal failed to consider information given to it by the Applicant that a committee had been created under the control of the Prime Minister’s office which was tasked with identifying blasphemous bloggers and bringing them to justice.

2. The information referred to by the Applicant about the bloggers was in the context of country information. That country information was a Department of Foreign Affairs and Trade (“DFAT”) report for Bangladesh, dated 20 August 2014, which stated that instances of violence against atheists were isolated and directed at higher profile individuals; and, that atheists otherwise are generally able to live free from discrimination and violence on a day-to-day basis in Bangladesh. Further, atheists have a low risk of being arrested or being detained by authorities under the Bangladesh Information and Communication Technology Act.

3. The Applicant then said that he could be jailed up to 14 years if found guilty of insulting religion and that it is a charge without bail. That was a reference to the Bangladesh Information and Communication Technology Act which the Applicant claimed was introduced in 2006 but amended in 2013 “so as to harass, arrest and take away the legal rights of atheists.”

4. The Tribunal noted that this country information was discussed with the Applicant at the hearing and the Applicant was given further time to make any further submissions or to file any further country information which the Applicant wished the Tribunal to take into consideration.

5. The Applicant made further submissions and provided further information to the Tribunal post-hearing to the effect that the DFAT report was incorrect in that it stated atheists have a low risk of being arrested or being detained by state authorities. The Applicant referred to three atheists who were murdered in public places. However, the Tribunal noted that each of those three persons was a blogger who advocated free expression and “irrational religious beliefs and rallied against religious fundamentalism.” All three discussed and promoted secular themes.

6. The Tribunal found that the Applicant did not claim that in his Facebook activities, or other activities, that he promoted secularism in the same manner as the murdered bloggers. The Tribunal accepted that the Applicant may express his doubts to his friends about the existence of a god.

7. The Applicant never articulated or squarely raised a claim to be a blogger. In any event, the Tribunal distinguished the Applicant’s standard activities from those of the murdered bloggers in findings referred to above that were open to the Tribunal on the evidence and materials before it.

8. In relation to the two teenagers the applicant claimed to have been arrested, in a post-hearing statement the Applicant stated as follows:

   “I have already provided information about Government’s oppression on Atheist population using ICT Act 2013 where even two teenagers been arrested and detained then sent to the Jail by Magistrate when they had just a week to go for the H.S.C. exam. Are they prominent Bloggers? Did they make people dishonest posting their view online? Nobody even knew them before they were arrested; I have already provided the report on this.”

9. In support of that claim, the Applicant provided a copy of a report in relation to their arrest “teenage bloggers arrested for blasphemous Facebook post”.

10. It is well established that a failure to refer to a particular piece of evidence does not generally constitute jurisdictional error. To amount to jurisdictional error the evidence must be of sufficient cogency and centrality to the claims under consideration.

11. While the Applicant claimed to have an online presence by reason of his membership of a Facebook group, Mr Dobbie conceded that engaging in Facebook activity is not the same as being a blogger.

12. The Tribunal specifically referred to the Applicant’s Facebook activities and, as stated above, noted that they did not involve the promotion of secularism in the same way as the murdered bloggers. In the circumstances, the Applicant’s evidence of the arrest of the teenage bloggers was not evidence of sufficient centrality such that the Tribunal’s failure to mention that particular piece of evidence amounted to jurisdictional error (see Minister for Immigration and Border Protection v SZRKT [2013] FCA 317; (2013) 212 FCR 99).

13. Similarly, the information provided by the Applicant of the article showing that a committee had been created under the control of the Prime Minister’s office tasked with identifying blasphemous bloggers and bringing them to justice was not information that the Tribunal failed to consider. As stated above, the Applicant did not claim to be a blogger, and therefore the Tribunal did not find that he was one.

14. Accordingly, Ground 6 is not made out.

Conclusion

1. A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims being made by the Applicant; explored those claims with the Applicant and the second applicant at a hearing; and, had regard to all material provided in support. The Tribunal put to the Applicant matters of concern it had about his evidence and noted his responses. The Tribunal identified independent country information to which it had regard and which it discussed with the Applicant.

2. The Tribunal then made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for the reasons it gave. A fair reading of the Tribunal’s decision record makes clear that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law.

3. In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.

4. The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no power to interfere.

5. The proceeding before this Court should be dismissed with costs.

I certify that the preceding ninety-eight (98) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Date: 30 May 2017