ARG17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2023] FedCFamC2G 86
Federal Circuit and Family Court of Australia
(DIVISION 2)
ARG17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FedCFamC2G 86
File number(s): SYG 480 of 2017 Judgment of: JUDGE MANOUSARIDIS Date of judgment: 10 February 2023 Catchwords: MIGRATION – application for remedies under s 476 of the Migration Act 1958 (Cth) (Act) in relation to a decision of the Administrative Appeals Tribunal (Tribunal) affirming a decision not to grant a protection visa – whether the Tribunal misconstrued or misapplied the test for well-founded fear of persecution in relation one of the applicant’s claims for protection – whether given the findings the Tribunal made it acted irrationally or unreasonably or on the basis of an incorrect understanding of the law in concluding the applicant did not have a well-founded fear of persecution based on his being a business man supporting a particular party – application dismissed. Legislation: Migration Act 1958 (Cth) ss 36(2)(a), 36(2)(aa), 45AA, 476
Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth)
Migration Regulations 1994 (Cth) reg 2.08F
1951 Convention relating to the Status of Refugees and the 1967 Protocol relating to the Status of Refugees Art 1A(2)
Cases cited: BOT15 v Minister for Immigration and Border Protection [2018] FCA 654
Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
Minister for Immigration & Multicultural Affairs v Rajalingam (1999) 93 FCR 220
Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559
SZGHS v Minister for Immigration and Citizenship [2007] FCA 1572
SZTAP v Minister for Immigration and Border Protection [2015] FCAFC 175
Division: General Number of paragraphs: 45 Date of hearing: 28 October 2021 Place: Sydney Counsel for the Applicant: Mr B Mostafa, by video Solicitor for the Applicant: Varess Counsel for the First Respondent: Mr T Reilly, by video Solicitor for the First Respondent: Mills Oakley Lawyers ORDERS
SYG 480 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ARG17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE MANOUSARIDIS
DATE OF ORDER:
10 february 2023
THE COURT ORDERS THAT:
1.The name of the first respondent be changed to “Minister for Immigration, Citizenship and Multicultural Affairs”.
2.The application is dismissed.
3.The applicant pay the first respondent’s costs set in the amount of $5,400.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
introduction
Two questions arise on this application for remedies under s 476 of the Migration Act 1958 (Cth) (Act). The first is whether the second respondent (Tribunal), in affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant a Protection (Class XD) visa (Protection visa), misconstrued or misapplied the test for well-founded fear of persecution in relation to one of the applicant’s claims for protection. The second question is whether, given the findings the Tribunal made, the Tribunal acted irrationally or unreasonably, or proceeded on an incorrect understanding of the law, in not being satisfied the applicant has a well-founded fear of harm because he is a member of a particular social group, namely a business owner who supported the Bangladeshi National Party (BNP).
background
The applicant is a national of Bangladesh. He arrived in Australia by boat in May 2013.
On 14 August 2013 the applicant applied for a Protection (Class XA) visa. By operation of s 45AA of the Act and r 2.08F of the Migration Regulations 1994 (Cth), the application is taken to be, and from 16 December 2014 to have always been, a valid application for a Temporary Protections (Class XD) visa. That means that the applicant’s claims for protection were to be assessed under the Act as it applied on 16 December 2014, which is before the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) came into effect.[1]
[1] Under which, among other things, the Act itself provided for the definition of “refugee” rather than incorporating the definition provided for in Art 1A(2) of the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees
CLAIMS FOR PROTECTION
The applicant stated his claims for protection in a statutory declaration that formed part of his application for a Protection visa.[2] The applicant there claimed as follows:
[2] CB238-240, [14]-[26]
(a)The applicant and his family were supporters of the BNP. In around 1999, when in his last year of high school, the applicant joined the BNP student wing, Jatiyatabadi Chhatra Dal.
(b)The applicant maintained communication with the Chhatra Dal after he left school. In around 2005 the applicant joined the youth wing of the BNP, Bangladesh Jatiyatabadi Jubo Dal (Jubo Dal). The applicant regularly attended their monthly meetings.
(c)During the 2008 Bangladeshi elections the applicant and other members of Jubo Dal distributed leaflets, and went door to door to explain BNP’s policies. After the Awami League (AL) won the general election, AL supporters began to harass, extort, and physically assault BNP supporters.
(d)In 2011 AL members went to the applicant’s family’s garment shop, which the applicant was running. The applicant was known to members of the AL’s youth wing. The AL members demanded the applicant give them money to purchase cigarettes. The AL members took shirts and pants from the applicant’s shop without paying, and when they asked for money the AL members slapped the applicant. These types of incidents occurred many times in 2011. The applicant said:[3]
I saw this happen to other shop owners near me, but none of us reported these incidents to the Police as we feared that the Awami League members would retaliate against us for doing so. I had two friends who reported similar incidents to the Police, one was tortured, and the other was killed.
(e)In 2012 these types of extortions and threats gradually became more frequent and serious. In around September or October 2012, the same AL members returned to the applicant’s family’s shop. They demanded the applicant pay them 200,000 Taka, and told the applicant that, if he did not pay the money, his family would not be able to run their business. The AL members assaulted the applicant with sticks and punched him. Before the members left, they advised the applicant that they would return to collect the money. After discussing the matter with his family, the applicant was advised not to give the AL members the money, and to see what would happen.
(f)In around December 2012 the AL members returned to the applicant’s shop and demanded the money. The applicant said he had no money, as he had given them money in the past. The AL members started to beat the applicant with sticks, and attempted to hit him with knives. The applicant ran out of his shop through the back door to escape from the violence.
(g)The applicant fled and took a bus to his sister’s house, where he remained hidden for the next three months. The applicant told his parents about what had happened to him. The applicant’s father advised him that their shop had been looted, and then burned down. The members of the AL then went to the applicant’s parents and demanded that they pay the money. As it was no longer safe for him to remain in Bangladesh, the applicant made plans to leave the country.
[3] CB49, [12]
The applicant further claimed as follows:[4]
22.I fear that I will be harmed / mistreated for reasons of my political beliefs and associations. I was a supporter of the BNP, and a member of their youth wing. This became known to members of the ruling political party, the Awami League.
23.I fear I will be harmed / mistreated because of my membership of a particular social group: Individuals who have held information (the witnessing of corruption) adverse to the interests of the Awami League in Bangladesh - I have knowledge of the corruption and extortion of [sic] Awami League members in my local area. Subsequently the Awami League will harm / mistreat me.
24.I fear that I will be harmed/mistreated for reasons of my membership to a particular social group: BNP supporting business owners living under Awami League rule, making us vulnerable for extortion. My family and I experienced this first hand when we were extorted for our money.
[4] CB51-52
Before the delegate, the applicant provided further information in support of his claims, and made additional claims. The further information included a claim that in the lead up to the January 2014 election the applicant’s brother became involved in party politics for the first time, supporting the BNP; the applicant’s brother was attacked by AL cadres; the applicant’s brother went into hiding; and that about five months after he went into hiding the applicant’s brother stop contacting the applicant’s father.[5]
[5] CB246, [52]
before the tribunal
On 10 October 2016 the applicant’s representative (Representative) provided detailed submissions to the Tribunal.[6] Two of the subjects on which the Representative made submissions are relevant to the grounds on which the applicant relies. First, the Representative submitted there is a real risk the applicant will be prosecuted for having left Bangladesh illegally; and that if that were to occur the applicant’s imprisonment may result in torture, cruel or inhuman treatment or punishment or degrading treatment or punishment.[7] The Representative referred to an article published in the Sydney Morning Herald on 25 May 2015 titled “Bangladesh PM Sheikh Hasina slams starving migrants as “mentally sick””, and quoted the following passage from the article (PM Statement):[8]
Side by side with the middlemen, punishment will have to be given to those who are moving from the country in an illegal way . . . they are tainting the image of the country along with pushing their life into danger.
[6] CB177
[7] CB207, [98]; CB208, [107]
[8] CB207, [98]
The Representative submitted that, although neither “the article nor Sheik Hasina had defined what “punishment” will consist of, the Prime Minister’s “scathing words, and Bangladesh’s poor human rights record, along with recent country information about mistreatment in the judicial system in Bangladesh, is put to the Tribunal in support that the Applicant has a well-founded fear of persecution on his return as a failed asylum seeker”.[9] The Representative identified country information on prison conditions in Bangladesh which reported, among other things, that prison conditions in Bangladesh are “harsh and at times life threatening due to overcrowding, inadequate facilities, and lack of proper sanitation”.[10]
[9] CB207, [99]
[10] CB209, [108]
The second relevant subject on which the Representative made submissions is the failure of authorities in Bangladesh to provide protection to victims of political violence. The Representative identified country information which reported that “Bangladesh’s law-enforcement agents have a reputation for abusing authority through coercive means” and that they “are and have been the hired thugs of all the ruling regimes”.[11]
[11] CB182, [25]
According to the Tribunal’s reasons,[12] at the hearing the Tribunal discussed with the applicant country information concerning the treatment of returnees, including those who had departed Bangladesh illegally, and who are known or believed to have sought asylum abroad. The Tribunal, in its reasons for decision, said it drew on the following passages from “DFAT’s July 2016 guidance”:
5.21 Bangladesh accepts both voluntary and involuntary returnees. IOM's Assisted Voluntary Returns and Repatriation (AVRR) program provides assistance to Bangladeshi returnees in cooperation with the returning country and the Government of Bangladesh. DFAT understands that recent returnees from the United Kingdom have not been subjected to any adverse attention by the authorities or others. Although Bangladesh agreed to accept a number of Rohingya returnees during the Andaman Sea crisis in May 2015, Bangladeshi authorities have generally insisted on verifying the identity and Bangladeshi citizenship of returnees (including Rohingyas) before authorising their return.
5.22 DFAT assesses that most returnees, including asylum seekers, are not subjected to adverse attention regardless of whether they have returned voluntarily or involuntarily. Authorities may take an interest in high-profile individuals who have engaged in political activities outside Bangladesh, including people convicted of war crimes in absentia
[12] CB250, [81]
The Representative requested the Tribunal provide her with the country information the Tribunal referred to at the hearing. By an email sent on 20 October 2016, the Tribunal provided to the Representative extracts from the Department of Foreign Affairs and trade Bangladesh Country Information Report dated 5 July 2016 (DFAT Report), which included the following:[13]
3.55 Credible sources have told DFAT that the ruling party’s fronts – student or otherwise – have historically controlled all public institutions. In this vein, DFAT understands that the AL’s student wing (the Chattra League) has effectively controlled public university campuses and restricted the activities of BNP and JI student wing members since 2009. Chattra League members have reportedly prevented JCD and ICS members from sitting university examinations. AL members and activists have also reportedly extorted BNP business owners in rural areas, threatening them with violence if they fail to comply with demands for money. DFAT understands that JI members are generally subjected to greater levels of harassment and intimidation than members of the BNP. According to the International Crisis Group, the AL pressured Jatiya Party leaders into contesting general elections in 2014 to create the appearance of a competitive contest.
[13] SCB2 (Emphasis in Applicant’s Submissions, [11])
The Representative provided post hearing submissions by letter dated 24 October 2016. In those submissions the Representative requested the Tribunal provide full access to the DFAT Report. The Representative nevertheless addressed those extracts of the DFAT Report which stated that “AL members and activists have also reportedly extorted BNP business owners in rural areas, threatening them with violence if they fail to comply with demands for money”. The Representative submitted that the threats and violence were “politically motivated extortion”.[14]
[14] CB231, [34], [35]
tribunal’s findings and reasons
The Tribunal:[15]
(a)accepted the applicant favours the BNP, and that he may have associated with some local members of the BNP’s student and youth wings;
(b)did not accept the applicant was a “senior member” or activist in the BNP, or in any associated BNP groups;
(c)accepted there was a considerable amount of country information to indicate that corruption, protection money rackets, and petty criminality are rife in Bangladesh; that this affects the general public as well as small businesses; that there “can be a political dimension to such criminality”; that prevalent in Bangladesh are AL cadres, particularly those in the student and youth wings, who engage in criminal and politically motivated violence against persons associated with the BNP and other opposition groups with evident impunity; and the DFAT Report stated that “AL members and activists have also extorted BNP business owners in rural areas”; [16]
(d)had significant concerns about the applicant’s claim “that this happened to him”;[17]
(e)disbelieved the applicant’s claims that AL cadres started to target the applicant in 2011 as a BNP-affiliated shopkeeper and influential BNP leader; that the AL cadres demanded ever-increasing sums of money; that they pressured the applicant to stop politics; that they repeatedly assaulted the applicant; that by late December 2012 the AL cadres came by again with the aim of collecting Tk 200,000 and seriously harming or killing the applicant; that the applicant narrowly escaped this attack, and that he went into hiding for three months, and that he later learned AL cadres ransacked and burned down his shop, and that AL cadres later came by and threatened of assaulted the applicant’s father;[18]
(f)accepted, “in the light of country information about corruption in Bangladesh, and AL cadres’ involvement in such activities such as the collection of protection money from BNP business owners”, that “the applicant may have had to pay some bribes”; but the Tribunal did not accept that “this began only in 2011, for political reasons”, or that “they involved any actual or threatening violence”, or that “they involved any onerous or threatening demands (in light of the applicant’s profile, and the Tribunal’s assessment . . . )”, or “that they involved any actual or threatened violence”;[19] and
(g)did not accept the applicant fled Bangladesh for fear of his safety, or that AL cadres targeted his family members in their search for their search for the applicant, or that the applicant’s brother later joined the BNP and has now disappeared.
[15] CB247, [59]
[16] CB242, [37], [38], [39]
[17] CB242, [40]
[18] CB245, [48]
[19] CB245, [49]
The applicant does not claim the Tribunal made any jurisdictional error in making these findings. It will therefore be unnecessary to set out the reasons on which the Tribunal relied in making them. It will be necessary, however, to set out the Tribunal’s consideration of two of the applicant’s claims, one being a claim based on the applicant being a failed asylum seeker who had departed Bangladesh illegally (relevant to ground 1) (Failed Asylum Seeker Claim); and the other claim being based on the applicant being a member of a particular social group, namely, “BNP supporting business owners” (BNP Business Owner Claim).
In relation to the Failed Asylum Seeker Claim, the Tribunal:
(a)found there is a real chance the Bangladeshi authorities would come to know, or at least assume, the applicant departed Bangladesh illegally in early 2013, and that he would have unsuccessfully sought asylum in Australia;[20]
(b)noted the Representative’s reference to the PM Statement;[21]
(c)noted that at the hearing the Tribunal discussed with the applicant country information concerning the treatment of returnees, including those who departed Bangladesh illegally, and who are known or believed to have sought asylum abroad, and set out paragraphs 5.21 and 5.22 of the DFAT Report (which I have reproduced above);[22]
(d)referred to the Tribunal’s summary at the hearing that irrespective of any statements that the Bangladeshi Prime Minister may have made about asylum seekers, or of any official positions on illegal departures, the Tribunal is not aware of any instances where Bangladeshis returning to Bangladesh were punished because they departed illegally, or because they sought asylum abroad;[23]
(e)noted it drew on that part of the DFAT Report that referred to a significant number of Bangladeshis who continue to seek higher wages overseas, and that in 2015 approximately 12% of Bangladesh’s gross domestic product is accounted by remittances from overseas, and that “[t]hese workers include persons who hold valid visas or are subject to work contracts, visa over-stayers and illegal emigrants”;[24] and
(f)noted the Tribunal is confident that, if the Bangladeshi authorities were punishing Bangladeshis who departed illegally or who sought asylum abroad, this would generate reports in Bangladesh and abroad.[25]
[20] CB250, [79]
[21] CB250, [80]
[22] CB250, [81]
[23] CB250, [82]
[24] CB250-251, [82]
[25] CB251, [81]
The Tribunal concluded as follows:[26]
In sum, the Tribunal accepts that the applicant departed Bangladesh illegally and that the Bangladeshi authorities would become aware of his circumstances if he were to return there as a failed asylum seeker. It is not satisfied that the applicant faces a real chance of harm amounting to persecution because of the circumstances of his departure or of his return. It follows that the Tribunal is not satisfied that this gives rise to a well-founded fear of persecution on the basis of political opinion (actual or imputed), or any associated particular social group. There are no factors - such as any high profile political activities in or outside Bangladesh - that suggest the Bangladesh authorities might have an adverse interest in him at all.
[26] CB250, [84]
In relation to the BNP Business Owner Claim, the Tribunal:
(a)referred to its finding that the applicant did not suffer serious harm amounting to persecution, or anything other than some minor harassment for bribes or on political grounds in Bangladesh when he was a low-level BNP supporter and a shopkeeper;[27]
(b)accepted that on his return to Bangladesh the applicant will continue to favour the BNP;[28]
(c)found that the applicant’s “lack of ongoing contacts or engagement” leads to the conclusion that the applicant “will have [an] even [lesser] interest and profile than in the past”;[29]
(d)accepted the applicant’s shop no longer operates (although it did not accept that it had been looted and destroyed by AL cadres to punish the applicant);[30] and
(e)noted it found it difficult to engage the applicant on what his future work would be, further noting that the applicant said that “he would need some livelihood, implying that he might well open a business”, although the Tribunal also noted that “this is far from certain”.[31]
[27] CB248, [68]
[28] CB248, [69]
[29] CB248, [69]. I have added to words in bracket to reflect my finding of what the Tribunal intended to convey by “will have even interest and profile than in the past”.
[30] CB248, [69]
[31] CB248, [69]
The Tribunal concluded as follows:[32]
The Tribunal notes DFAT advice, cited above, that AL cadres extort and threaten BNP business owners in at least some rural areas. However, given the above findings about the Applicant’s own past experiences as a business owner in Arpara who favoured the BNP, his very low political profile, and the uncertainty about his future work, the Tribunal is not satisfied that he faces a real chance of serious harm amounting to persecution if, in fact, he becomes engaged in some form of business in Magura District on his return, and continues to favour or support the BNP.
It follows that the Tribunal finds that he does not have a well-founded fear of persecution for reason of a political opinion, or on his membership of an (putative) particular social group based on the attributes such as being a business owner and a supporter (or similar) of the BNP. In these circumstances, the Tribunal does not need to examine further whether there exists in Bangladesh a particular social group (or groups) as posited by the applicant's representatives.
[32] CB248-249], [70-[71]
The Tribunal, therefore, concluded that it was not satisfied the applicant has “a well-founded fear of persecution for reasons of political opinion or for any other Convention related reason, now or in the reasonably foreseeable future, if he returns to Bangladesh” and, for that reason, the Tribunal was not satisfied the applicant meets the criterion provided for by s 36(2)(a) of the Act.[33] The Tribunal also concluded it was not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Bangladesh, there is a real risk that he will suffer significant harm; and, for that reason, the Tribunal was not satisfied the applicant mets the criteria specified in s 36(2)(aa) of the Act.
[33] CB251, [86]. At the time the applicant applied for the Protection visa, the Act applied the definition of “refugee” given in of Art 1A(2) of the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees.
ground 1
The applicant relies on grounds 1 and 3 of the further amended application filed on 20 April 2021. Ground 1 is as follows:
The Tribunal misconstrued or misapplied the test for well-founded fear of persecution in respect of the applicant’s claim that he would be persecuted for reason of being a member of a particular social group of failed asylum seeker who illegally departed Bangladesh, if he returned to Bangladesh, and as a result fell into jurisdictional error.
Particulars
a.In determining whether the applicant had a well-founded fear of persecution, the Tribunal was obliged to consider what may happen to the applicant in the reasonably foreseeable future.
b.In its decision at [80], the Tribunal referred to and acknowledged the statement by the Prime Minister of Bangladesh in May 2015 that failed asylum seekers who illegally fled Bangladesh would be punished.
c.The Tribunal noted at [80] that the Prime Minister is “calling” for the punishment of Bangladeshis who illegally migrated, when her statement was in fact that “punishment will have to be given”.
d.The Tribunal found at [82] that the evidence before the Tribunal did not suggest that any failed asylum seeker returnees to Bangladesh had been punished by the Bangladeshi authorities.
e.The Tribunal gave no other reasons relevant to a finding that the Prime Minister’s comments did not give rise to a real chance the applicant would not face persecution.
f.As a result of (a) to (e) above, the Tribunal failed to apply the “real chance” test, because it did not consider the likelihood of harm in light of the Prime Minister’s comments going forward, but instead only considered the likelihood of harm in the past and without reference to or in consideration of the recent comments of the Prime Minister.
Parties’ submissions
The applicant submits the Tribunal focussed on past events, namely, on whether Bangladeshis who had departed illegally or sought asylum abroad had been subjected to punishment on their return. This reasoning, the applicant submits, treats the fact that there was an absence of evidence of such punishment as conclusive of whether the applicant faces a real chance of harm if he were to return to Bangladesh. In short, the applicant submits the Tribunal “failed to apply a forward looking test, as it was required to do when determining whether the applicant faced a real chance of serious harm on account of his membership of the relevant particular social group”.[34]
[34] Applicant’s Submissions, [15]
The applicant relies, “[b]y way of illustration of error made by the Tribunal”,[35] on the judgment of Allsop J (as his Honour then was) in SZGHS v Minister for Immigration and Citizenship,[36] and on the judgment of Markovic J in BOT15 v Minister for Immigration and Border Protection.[37] The applicant submits that the PM Statement was “necessarily, forward looking”;[38] it was a statement by the head of Bangladesh’s government that was directly applicable to the applicant, and provided a firm basis on which the applicant would have a well-founded fear of being persecuted. The applicant further submits that the Tribunal’s “only answer to this claim was to say that it appeared that no such persecution had happened yet”.[39] In proceeding in this way the Tribunal failed to undertake the “speculation” that is required when considering a forward looking claim. The applicant’s reliance on “speculation” is based on the following passage from the judgment of Markovic J in BOT15:[40]
I accept the Minister’s submission that it is permissible for the Tribunal to speculate about the future based on past events and present circumstances. But the vice in the Tribunal’s decision is that it did not, in my opinion, undertake any such speculation.
[35] Applicant’s Submissions, [16]
[36] SZGHS v Minister for Immigration and Citizenship [2007] FCA 1572
[37] BOT15 v Minister for Immigration and Border Protection [2018] FCA 654
[38] Applicant’s Submissions, [22]
[39] Applicant’s Submissions, [22]
[40] BOT15 v Minister for Immigration and Border Protection [2018] FCA 654, at [58]
The Minister, on the other hand, submits that the Tribunal considered what had occurred in the past in Bangladesh to illegal departees and failed asylum seekers to inform itself as to what might occur to the applicant in the future; and by doing so the Tribunal was aware, and took into account the PM Statement. The Minister submits the Tribunal “considered the actual situation in Bangladesh outweighed the import of [the PM statement] when considering what might occur to the applicant”.[41]
[41] First respondent’s Written Submissions, [27]
Determination
The basis of the applicant’s contention that the Tribunal failed to apply a forward looking approach when determining the Failed Asylum Seeker Claim, is that the Tribunal only had regard to the absence of evidence of any failed asylum seeker who had departed Bangladesh illegally (illegal emigrant) having suffered any harm; and the DFAT Report. That by itself, however, is incapable of supporting the applicant’s claim that the Tribunal failed to apply a forward looking test; and that is because, at least in many cases, a decision maker’s assessment of the future depends on making findings about facts that exist as at, or which had occurred by, the time the decision is made. To demonstrate that this is so requires me to restate some basic principles.
First, there is the criterion the applicant was required to meet under s 36(2)(a) of the Act as it stood at 16 December 2014,[42] namely, that he is “a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol”. For an applicant to meet that criterion the decision maker (in this case the Tribunal) has to be satisfied that the applicant is a refugee as defined in Article 1A(2) of the Convention referred to in s 36(2)(a). That is, the Tribunal has to be satisfied the applicant is a person who:
owing to 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, is 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.
[42] That is before the coming into effect of the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth)
Second, whether a person falls within this definition depends on a decision-maker assessing what will occur in the future. That requires the Tribunal to assess whether the applicant faces a real chance of being persecuted,[43] recognising, however, that the expression “real chance of being persecuted” should be seen as a clarification of, not a synonym for, the expression “well-founded fear of being persecuted”.[44]
[43] Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
[44] Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559, at page 572
Third, when assessing the probabilities of something occurring in the future, the Tribunal ordinarily must make findings about whether all or part of the applicant’s account of past events should be accepted.[45] That is so because:[46]
In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events.
[45] Minister for Immigration & Multicultural Affairs v Rajalingam (1999) 93 FCR 220, at page 231 ([34]) (Sackville J)
[46] Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559, at page 575
Fourth, “speculation”, in the sense of “conjecture or surmise”, has no role to play in deciding whether a person has a real chance of being persecuted; a fear is “well-founded” “when there is a real substantial basis for it”.[47] This point was made by the High Court in Minister for Immigration and Ethnic Affairs v Guo & Anor:[48]
Conjecture or surmise has no part to play in determining whether a fear is well-founded. A fear is “well-founded” when there is a real substantial basis for it. As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.
[47] Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559, at page 572
[48] Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559, at page 572
The Tribunal in the case before me was aware that it was required to determine whether the applicant faced the prospect of harm when he returns to Bangladesh, now or in the reasonably foreseeable future; and the Tribunal addressed and determined that question in relation to all of the applicant’s claims, including the Failed Asylum Seeker Claim. That the Tribunal addressed that question in relation to the Failed Asylum Seeker Claim is apparent in paragraph 85 of the Tribunal’s reasons for decision, where the Tribunal concluded that it did not accept that “if the applicant returns to Bangladesh now or in the foreseeable future there is a real chance he will face serious harm for reason of”, among other things, the applicant’s “illegal departure from Bangladesh, or for having sought asylum in Australia”.[49]
[49] CB251, [85]
Further, it cannot be said that the Tribunal’s conclusion is merely conclusory in relation to any of the claims, including the Failed Asylum Seeker Claim. When the Tribunal considered the Failed Asylum Seeker Claim, it referred to, and I find the Tribunal considered, information that was relevant to whether the applicant faced a real chance of serious harm, now or in the reasonably foreseeable future, if he were to return to Bangladesh because he is a failed asylum seeker and an illegal emigrant. The Tribunal referred to the following items of information.
(a)First, there is the assessment contained in the DFAT Report that most returnees, including asylum seekers, are not subject to adverse attention, regardless of whether they have returned voluntarily or involuntarily. Relevant to the weight that it was reasonably open to the Tribunal to give to this assessment is the assessment’s being contained in a report dated 5 July 2016, being just over one year after Prime Minister Sheikh Hasina was quoted as making the PM Statement. The absence of any reference in the DFAT Report to Bangladeshi authorities punishing or intending to punish illegal emigrants or failed asylum seekers is a rational basis for inferring that, as at the date of the DFAT report, no action had been taken to give effect to the PM Statement.
(b)Second, there is the statement contained in the DFAT Report that Bangladesh received over USD13 billion in remittances in 2015 from Bangladeshis who work outside Bangladesh. The DFAT report stated, or the Tribunal found on the basis of matters stated in the DFAT Report, that the persons who remitted money to Bangladesh included “illegal emigrants”. It is open to find, and I find, that the Tribunal considered this information probative of the Bangladeshi government not wishing to punish illegal emigrants, because such persons form part of a class of persons who remit money to Bangladesh; and to punish such persons would be adverse to Bangladesh’s economic interests.
(c)Third, there is the absence of evidence that any failed asylum seeker who had left Bangladesh illegally had been harmed on his or her return to Bangladesh. The absence of such evidence must be viewed as at the date on which the Tribunal made its decision, namely, 13 January 2017. That is just over 19 months after Prime Minister Sheikh Hasina was quoted as having made the PM Statement. That absence of evidence during this 19 month period of any harm to any failed asylum seeker who had left Bangladesh illegally would have permitted the Tribunal to draw with greater confidence the inference to which I refer in (a).
(d)Fourth, there is the PM Statement itself. This information must be viewed having regard to the applicant’s not having identified evidence that shows the context in which Prime Minister Sheikh Hasina made the PM Statement, the “punishment” Prime Minister Sheikh Hasina had in mind, and whether any steps had been taken to implement laws or policies which would or may render illegal emigrants liable to punishment.
I therefore do not accept the Tribunal failed to apply a forward looking approach when determining whether the applicant faced a real chance of serious harm as a failed asylum seeker who had left Bangladesh illegally. On the contrary, I am satisfied the Tribunal did apply such approach; and the Tribunal did so by considering and weighing the four items of information I identify in paragraph 30 of these reasons. It was reasonably open to the Tribunal to consider that items (a), (b), and (c), considered alone or together, were capable of supporting the conclusion that the applicant did not face a real chance of harm if he were to return to Bangladesh now or in the reasonably foreseeable future because he is a failed asylum seeker who had departed illegally from Bangladesh; and that it was also reasonably open to the Tribunal to conclude that the probative force of these items of information, in support of that conclusion, outweighed any countervailing probative force the Tribunal might have assessed the fourth item of information had.
Ground 1, therefore, fails.
ground 3
Ground 3 is as follows:
The Tribunal erred in finding that the applicant did not have a well-founded fear of persecution on account of being a BNP supporter or a business owner who was a BNP supporter.
Particulars
a)The applicant claimed to fear harm from members of the Awami League (AL) on account of his connection to the BNP.
b)The applicant claimed that he had worked in his family’s shop prior to leaving Bangladesh, and that he was harassed and extorted by members of the AL when doing so.
c)The Tribunal:
i.accepted that though the applicant had not been a member of the BNP, he was a BNP supporter and a shopkeeper, and that he would continue to favour the BNP on return to Bangladesh: at [68]-[69];
ii.accepted that “as a shopkeeper and a BNP supporter, he may have had to pay some bribes or protection money”: at [49], [59]. The Tribunal did so in light of country information from the Department of Foreign Affairs and Trade that stated that “AL members and activists have also reportedly extorted BNP business owners in rural areas, threatening them with violence if they fail to comply with demands for money”: at [39], [49];
iii.despite the finding that the applicant may have had to pay “protection money”, did not accept that “AL cadres” threatened the applicant or that the applicant was the subject of any “threatening demands”: at [49], [59];
iv.found that the applicant “has suffered serious harm in the past (as a BNP supporter and/or shopkeeper), including onerous extortion demands”: at [62];v. stated that it was not certain what the applicant would do in order to have a livelihood if returned to Bangladesh, but left open that the applicant may open a business: at [69];
vi. reasoned at [70]-[71] that:
The Tribunal notes DFAT advice, cited above, that AL cadres extort and threaten BNP business owners in at least some rural areas. However, given the above findings about the applicant’s own past experiences as a business owner in Arpara who favoured the BNP, his very low political profile, and the uncertainty about his future work, the Tribunal is not satisfied that he faces a real chance of serious harm amounting to persecution if, in fact, he becomes engaged in some form of business in Magura District on his return, and continues to favour or support the BNP.
v.ii did not consider why the applicant had previously paid “protection money”, or what might happen to the applicant if he had refused, or in the future refused, to pay protection money to persons associated with the AL.
d)In proceeding in this way, the Tribunal erred in one or more of the following ways:
i.failing to consider whether the applicant had previously paid protection money in order to avoid being threatened or harmed by persons associated with the AL, and whether the applicant would pay such money in future for similar reasons, and if so whether this meant that the applicant had a well-founded fear of persecution;
ii.misconstruing the concept of “well-founded fear of persecution” by proceeding on the basis that, when determining whether such a fear exists, if an applicant has paid or will pay protection money, it is unnecessary to consider why the applicant has paid or will pay that protection money;
iii.reasoning in an illogical manner by:
A. relying on the lack of serious harm suffered by the applicant to conclude that the applicant did not have a well-founded fear of persecution in circumstances where that lack of serious harm took place in a context where the applicant had been paying protection money: cf SZTAP v Minister for Immigration and Border Protection (2015) 238 FCR 404;
B.holding that the applicant had not been the subject of threats while also holding that he may have paid “protection money”, the very nature of which is the payment of money to avoid an adverse outcome;
iv.having its holding on complementary protection at [90] infected by these errors, as the Tribunal’s reasoning on complementary protection gave no consideration to the reasons why applicant had paid, or might in the future pay, protection money.
Parties’ submissions
The applicant submits that, given the Tribunal’s findings, it made a jurisdictional error in concluding the applicant did not have a well-founded fear of persecution because he is a BNP supporter or a business owner who was a BNP supporter. The principal finding the applicant submits the Tribunal made, and on which the applicant relies as the fundamental source of the jurisdictional errors identified in paragraph (d) of the particulars to ground 3, is the finding set out in paragraph (c)(ii) of the particulars to ground 3, namely, that “as a shopkeeper and a BNP supporter, [the applicant] may have had to pay some bribes or protection money”, and the findings the applicant, in his counsel’s written submissions, the applicant submits the Tribunal made.
In his counsel’s written submissions the applicant submits that “the Tribunal’s reasoning accepted that the applicant had previously paid “protection money” to people associated with the AL due to his running a business and being a BNP supporter”;[50] that the Tribunal had stated that “the applicant had to pay “protection money””;[51] that the Tribunal held that “the applicant paid protection money”;[52] and that “on the Tribunal’s own reasoning, the applicant had to pay protection money “as a shopkeeper and a BNP supporter””.[53] The applicant submits on the basis of these premises as follows:
(a)The Tribunal made an error of the sort the Full Federal Court found the Tribunal made in SZTAP v Minister for Immigration and Border Protection.[54] The Tribunal’s finding that “the applicant had not suffered serious harm in the past had to be understood in the context of the fact that he had to pay protection money”. In those circumstances, the Tribunal could not discharge its obligation to determine whether the applicant had a well-founded fear of persecution by pointing to an absence of past harm in those circumstances.[55]
(b)The “holdings that the applicant paid protection money, but that he had not been threatened, do not sit well together”.[56] That manifests illogicality because the very concept of “protection money” is the payment of money to avoid an adverse outcome; and there cannot be a payment of protection money without an intimation of an adverse consequence of refusal.[57]
(c)The Tribunal failed altogether to consider “whether the applicant’s previous payments of protection money were paid to avoid being threatened or harmed by persons associated with the Awami League; and, if so whether the applicant would pay protection money in the future for similar reasons, and whether this meant that the applicant faced a well-founded fear of persecution.” By failing to undertake these tasks, the Tribunal made a jurisdictional error.[58]
(d)Alternatively, the Tribunal misconstrued the concept of “well-founded fear of persecution” by proceeding on the basis that, if an applicant had paid or will pay protection money, it is unnecessary to consider why.[59]
[50] Applicant’s Submissions, [36]
[51] Applicant’s Submissions, [37]
[52] Applicant’s Submissions, [38]
[53] Applicant’s Submissions, [39.b.]
[54] SZTAP v Minister for Immigration and Border Protection [2015] FCAFC 175
[55] Applicant’s Submissions, [39.a.]
[56] Applicant’s Submissions, [38]
[57] Applicant’s Submissions, [38.a.]
[58] Applicant’s Submissions, [41], [42]
[59] Applicant’s Submissions, [43]
The Minister, on the other hand, submits that, having found that the applicant did not suffer serious harm in the past from being asked for bribes, it was open to the Tribunal to find there was also not a real chance that he would suffer serious harm in the future if he engaged in business in Bangladesh. It was open to the Tribunal to do so, given the Tribunal’s findings in relation to the applicant’s past experiences as a business owner who favoured the BNP, the applicant’s low political profile, and the uncertainty about his future work. In short, the Minister submits the Tribunal’s decision reflects no more than an orthodox application of the real chance test; and the Tribunal’s finding that the applicant did not have a well-founded fear of harm based on the applicant being a business owner who supports the BNP was one that was reasonably open to it to make.[60]
[60] First Respondent’s Written Submissions, [32]
Determination
The applicant’s submissions are premised on the assumption that the Tribunal found that the applicant had paid protection money to members of the AL. That is reflected in the statements the applicant makes in his counsel’s written submissions I have set out in paragraph 35 of these reasons. The Tribunal, however, made no such finding. It comprehensively rejected the applicant’s claims that members of the AL attempted to extort, or did extort, money from the applicant, or that the AL threatened to harm, or harmed, the applicant in aid of their extortion of the applicant. The Tribunal instead found that the applicant “may have had to pay some bribes” (emphasis added).[61] There are a number of matters to note about this finding.
(a)First, it is not a finding that the applicant had in fact paid a bribe or bribes; it is a finding that there is a possibility the applicant paid bribes.
(b)Second, the Tribunal’s finding is not based on anything the applicant claimed had occurred to him – the Tribunal rejected the applicant’s claims in that regard. As the Tribunal itself noted, its finding that the applicant “may have had to pay some bribes” was based “in the light of country information about corruption in Bangladesh, and AL cadres’ involvement in such activities such as the collection of protection money from BNP business owners”, and having regard to the Tribunal’s findings about the applicant’s profile, namely that he was a business owner and a supporter of the BNP.
(c)Third, the Tribunal identified two classes of country information. One was “considerable country evidence” that indicates “corruption, protection money rackets and petty criminality” being “rife in Bangladesh”.[62] The second was country information that indicated “there can be a political dimension to such criminality”. After quoting country information that referred to “AL members and activists hav[ing] also reportedly extorted BNP business owners in rural areas, threatening them with violence if they failed to comply with demands for money”, the Tribunal said it had “concerns about the applicant’s claim that this happened to him, starting in 2011”.[63] That suggests the Tribunal found that, to the extent the applicant “may have had to pay some bribes”; these payments were not connected with any criminality that had a political dimension. That suggestion is confirmed later in the Tribunal’s reasons when, after noting it accepted that the applicant “may have had to pay some bribes”, the Tribunal noted it did not accept that this occurred “for political reasons”.[64]
(d)Fourth, later in its reasons, when summarising the findings it had made earlier, the Tribunal said it accepted that the applicant “may have had to pay some bribes or protection money”. It is not clear whether the Tribunal drew a distinction between “bribes” and “protection money” and, if so, whether, given the Tribunal’s earlier finding was directed only to the payment of bribes, whether in making the earlier finding the Tribunal intended also to include “protection money”. The firmer inference that is available to be drawn, and which I draw, is that the Tribunal did not intend to distinguish between “bribes” and “protection money”.
[61] CB245, [49]
[62] CB243, [38]
[63] CB242, [40]
[64] CB245, [49]
Having found on the basis of country information that the applicant may have had to pay some bribes, that is, that there is a possibility that the applicant did pay some bribes, the Tribunal considered whether the applicant had a well-founded fear of serious harm because he was a business owner who supported the BNP. In considering that question, the Tribunal took into account the following matters:
(a)its finding that the applicant may have had to pay some bribes;
(b)its not accepting that the applicant may have had to pay bribes for political reasons;
(c)its not accepting that the bribes the applicant may have had to pay involved any onerous or threatening demands, or any actual or threatened violence;
(d)its finding that the applicant has a very low political profile; and
(e)its findings as to the uncertainty about the applicant’s future work;
and concluded that it was not satisfied the applicant faces a real chance of serious harm amounting to persecution if, in fact, the applicant engages in some business in the same area, and if he continues to support the BNP.
It was open to the Tribunal to approach its assessment of whether the applicant had a well-founded fear of prosecution because he was a business owner who supports the BNP on the basis of findings that included a finding that it was possible the applicant had paid some bribes. An administrative decision-maker, such as the Tribunal, may or may not be required to take into account the possibility that alleged past events occurred without making a finding that they did occur. The relevant principles were discussed by Sackville J in Minister for Immigration & Multicultural Affairs v Rajalingam.[65] His Honour said that “it is not always possible for the decision-maker to be satisfied as to whether alleged past events have occurred with certainty or even confidence”. In those circumstances:[66]
it may be necessary to take into account the possibility that the event took place in considering the ultimate question. Depending on the significance of the alleged event to the ultimate question, a failure to consider the possibility that it occurred might constitute a failure to undertake the required reasonable speculation in deciding whether there is a “real substantial basis” for the applicant’s claimed fear of persecution. Similarly, if the non-occurrence of an event is important in the applicant’s case . . . the possibility that the event did not occur may need to be considered by the decision-maker even though the latter considers the disputed event probably did occur.
[65] Minister for Immigration & Multicultural Affairs v Rajalingam (1999) 93 FCR 220
[66] Minister for Immigration & Multicultural Affairs v Rajalingam (1999) 93 FCR 220, at page 239, [62]
The Tribunal rejected in their entirety the applicant’s claims that he had been the victim of extortion. There was, however, other evidence the Tribunal considered to be potentially relevant to assessing the risk of harm the applicant claimed he feared because he was a businessman who supports the BNP; and that information was the country information to which the Tribunal referred. Given this information was not directed to the applicant, but was expressed in general terms, it was only capable of supporting a finding that there was a possibility that the applicant had been the victim of the “corruption, protection money rackets and petty criminality” that was “rife in Bangladesh”.
Let it be assumed, however, that the Tribunal found the applicant had been required to pay bribes. Did the Tribunal, in finding the applicant did not face a real chance of serious harm, on account of the applicant’s being a business owner who supported the BNP, act irrationally or otherwise fail to undertake the tasks the applicant submits the Tribunal was required but failed to undertake? That question must be answered “no”. The applicant’s submissions assume there was material before the Tribunal on the basis of which the Tribunal could without speculation have done that which the applicant submits the Tribunal ought to have done. Given the Tribunal rejected the applicant’s evidence, however, the only information that was before the Tribunal that was relevant to whether the applicant had been required to pay bribes or protection money was the country information to which the Tribunal referred. The applicant has not submitted that it was reasonably open to the Tribunal, on the basis of the country information that was before it, to determine:
(a)the circumstances in which the applicant paid the bribes and protection money;
(b)the reasons for which the applicant paid the bribes and protection money; or
(c)in particular, whether the reason the applicant paid the bribes or protection money was to avoid harm and, if so:
(i)the harm the applicant sought to avoid by paying the bribe or protection money; and
(ii)whether the applicant would pay protection money in the future for similar reasons.
The country information to which the Tribunal referred was incapable of providing a rational basis on which the Tribunal could have determined any of the matters to which I refer in the previous paragraph. Thus, even if the Tribunal had found the applicant had been required to pay some bribes and some protection money, the Tribunal did not make any jurisdictional error in concluding the applicant did not have a well-founded fear of persecution because he is a businessman who supports the BLP without considering those matters; and that is because there was no material before the Tribunal on the basis of which the Tribunal could rationally have determined those matters.
For these reasons, ground 3 fails.
disposition and costs
I propose to dismiss the proceeding. I will also order that the Minister’s name be changed to its current form.
Counsel for the parties agree that costs should follow the event. The Minister submitted he seeks costs in the amount of $5,400. I will therefore also order that the applicant pay the Minister’s costs set in the amount of $5,400.
I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis. Associate:
Dated: 10 February 2023
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