Avj17 v Minister for Immigration and Border Protection
[2022] FedCFamC2G 24
•25 January 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AVJ17 v Minister for Immigration and Border Protection [2022] FedCFamC2G 24
File number(s): SYG 576 of 2017 Judgment of: JUDGE RILEY Date of judgment: 25 January 2022 Catchwords: MIGRATION – Administrative Appeals Tribunal – protection visa – whether the Tribunal failed to take into account relevant considerations – whether the Tribunal unreasonably doubted the applicant’s claims – whether it was a jurisdictional error for the Tribunal to describe Hefajat-e-Islam as a political party rather than as a political movement – whether the Tribunal ambushed the applicant – whether the Tribunal denied the applicant procedural fairness – whether the Tribunal made a jurisdictional error by assessing the applicant’s risk of harm by reference to the Emigration Ordinance 1982 (Bangladesh), when that Ordinance had been repealed – whether the Overseas Employment and Migrants Act 2013 (Bangladesh) and the Prevention and Suppression of Human Trafficking Act 2012 (Bangladesh) were of any relevance to this matter. Legislation: Emigration Ordinance 1982 (Bangladesh)
Prevention and Suppression of Human Trafficking Act 2012 (Bangladesh) ss.3 and 5
Overseas Employment and Migrants Act 2013 (Bangladesh) ss.4(1)Division Division 2 General Federal Law Number of paragraphs: 80 Date of hearing: 10 August 2021 and 15 December 2021 Place: Melbourne Advocate for the applicant on:
a. 10 August 2021:
b. 15 December 2021:
In person
Angel Aleksov and Elizabeth Brumby (pro bono)Solicitor for the applicant on:
a. 10 August 2021:
b. 15 December 2021:
None
Carina Ford Lawyers (pro bono)Advocate for the first respondent on:
c. 10 August 2021:
d. 15 December 2021:
Julian Pipolo
Graeme HillSolicitor for the first respondent Mills Oakley Advocate for the second respondent No appearance Solicitor for the second respondent Mills Oakley ORDERS
SYG 576 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AVJ17
ApplicantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE RILEY
DATE OF ORDER:
25 JANUARY 2022
THE COURT ORDERS THAT:
1.The application filed on 27 February 2017 be dismissed.
Note: The form of the order is subject to the entry in the court’s records.
Note:This copy of the court’s reasons for judgment may be subject to review 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
JUDGE RILEY:
INTRODUCTION
This is an application for review of a decision made by the Administrative Appeals Tribunal. In that decision, the Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is a citizen of Bangladesh.
The matter has a convoluted procedural history. The application was filed in Sydney. However, on 7 April 2017, the matter was transferred to Melbourne.
The National Migration Team sent a notice on 1 April 2021 listing the matter for hearing on 3 May 2021. The applicant attended court on that date. He said that he had not understood that the matter was listed for final hearing, as the notice of listing just said it was listed for “hearing”. He said that, if he had known that the matter was listed for final hearing, he would have engaged a lawyer.
The matter was adjourned until 10 August 2021 for final hearing, for reasons given orally at the time.
When the matter came on for final hearing on 10 August 2021, the applicant was not represented by a lawyer. However, he had filed some written submissions that appeared to have had input from a lawyer.
One of those submissions led to the matter being further adjourned, and, eventually, to pro bono legal practitioners being appointed for the applicant.
The final hearing resumed on 15 December 2021. The matter was fully argued on that date. Judgment was reserved.
THE ISSUE LEADING TO THE APPOINTMENT OF PRO BONO PRACTITIONERS
The issue which led to pro bono legal practitioners being appointed was that the Tribunal noted that:
93.While not raised by the applicant as a concern, during the hearing the Tribunal noted the applicant had left Bangladesh by boat. The Tribunal noted that while the Department of Foreign Affairs and Trade (DFAT) Country Information Report on Bangladesh dated 5 July 2016 noted the Bangladesh Emigration Ordinance Act makes it an offence to depart from Bangladesh other than in accordance with the procedures laid down in that Act, the report also states that DFAT is not aware of any cases in which the authorities have enforced those provisions. The Tribunal also noted the report assessed that most returnees, including asylum seekers, are not subject to adverse attention regardless of whether they have returned voluntarily or involuntarily.
94.In response the applicant told the Tribunal he did not know what the situation would be like if he returns and he doesn’t think the government will do anything to him as the main government is OK, although he remains concerns about people who had an issue with the applicant due to his support of Hefajat-e-Islam.
95.On the evidence before it the Tribunal does not accept there is a real chance the applicant will suffer serious harm because he departed Bangladesh in breach of the Emigration Ordinance Act. The Tribunal does not accept there is a real chance the applicant will suffer serious harm because he is a returnee and failed asylum seeker if he returned to Bangladesh now or in the reasonably foreseeable future.
However, the applicant’s submissions filed on 10 August 2021, possibly with the assistance of a lawyer, asserted that the Emigration Ordinance 1982 (Bangladesh) had been repealed by the Overseas Employment and Migration Act 2013 (Bangladesh). The Minister conceded in written submissions filed on 9 November 2021 that the Emigration Ordinance 1982 (Bangladesh) had been repealed, and the Overseas Employment and Migration Act 2013 (Bangladesh) was in force, when the Tribunal made its decision. However, the Minister submitted that the Tribunal’s error in this regard was not a jurisdictional error. The applicant submitted that it was. This issue is returned to below.
BACKGROUND
In his written submissions filed on 23 April 2021, the Minister provided the following background to this matter:
3.The applicant is a male citizen of Bangladesh who arrived in Australia on 26 April 2013 by boat with the vessel codename of “Crawley” (CB 30, 128, 130).
4.On 10 May 2013, the appellant participated in an entry interview (CB 1-15), during which he claimed the following (CB 133):
(a)The applicant “mixed with students” of the Islamic political party Hefajat-e-Islam (the HEI party) and the HEI party were treated badly by the Awami League (AL). When the HEI party revolted against the AL, they were tortured and beaten.
(b)On 28 October 2006, the applicant and other HEI party members were involved in “significant harm”, and were also harmed after 2006.
(c)On 13 March 2013, the applicant was beaten by AL supporters because he was involved in protest marches against the AL. On 1 April 2013, his employer told him to leave Bangladesh.
5.On 24 July 2013 the applicant applied for a Protection (Class XA) visa (CB 17-67), and appointed a migration agent to assist him with his visa application (CB 64-67).
6.The applicant set out his written claims for protection in an accompanying statutory declaration dated 12 July 2013 (CB 68-75), which contained the following claims:
(a)The applicant was an ethnic Bangladeshi and a devout Sunni Muslim who attended an Islamic religious school for seven years and wanted his countrymen to be true followers of Islam.
(b)After the Awami League (AL) came to power in 2008, many Bangladeshis were subjected to extortion or were killed by AL supporters. Since 2009, the applicant attended several meetings of HEI which was outspoken against, and critical of, the AL government. He was attracted to the ideology of HEI, which promoted protesting peacefully but opposed the AL government’s attempts to not require female Muslims from wearing the hijab or to change the Islamic text printed on ferry tickets. The applicant participated in several protests in the Bonshai area.
(c)At the end of 2011, the applicant participated in a protest against atrocities committed by AL supporters and members after a grocery store owner had his store damaged when he refused to pay extortion money. The applicant and two of his friends were attacked and beaten with hockey sticks by AL members after participating in the protest but managed to escape (the first incident).
(d)Late one evening in early 2012, the applicant was invited by a local person to play a board game (carom) but when the applicant went outside onto the street, he saw a large group of men carrying sticks. The men shouted at the applicant: “You are the supporters of HEI…we are going to kill you”. The applicant ran away but had stones thrown at him. He escaped by jumping into a pond and screaming, which attracted villagers to his rescue (the second incident).
(e)In December 2012, the applicant was attacked at the workshop by “unknown persons” and beaten severely with a rod that left scars on both of his legs. His attackers also attempted to harm him with broken glass bottles, which left him with a scar on his left palm. When the applicant gained consciousness at the hospital, he learned that a security guard had found him and taken him to hospital (the third incident).
(f)After the third incident, the applicant’s employer was sympathetic to the applicant and assisted him to depart Bangladesh in March 2013. The applicant feared that if he returned to Bangladesh, he would be harmed by AL members and not protected by the Bangladeshi authorities because he was an active member of the HEI party.
7.The applicant provided copies of his birth certificate, his IMMI identity card, the letter granting him a Bridging visa and a letter from a Chairman of Kalatiya Union Parishad (the chairman’s letter) certifying that the applicant was a “permanent inhabitant” of Union Parishad and was of good moral character (CB 24, 78-83).
8.On 25 September 2013, the applicant’s representative provided a submission to the delegate, essentially reiterating in broad terms his claims to fear harm from the AL party because of his involvement with the HEI party, which was closely linked to the Bangladesh Nationalist Party (CB 85-89).
9.On 2 March 2015, the applicant attended an interview with a delegate of the first respondent (CB 133).1
10.On 25 March 2015, the applicant provided “newly issued” documents namely, his birth certificate and the chairman’s letter (CB 112-113).
11.In a statutory declaration dated 11 May 2015 and made after his interview with the delegate (CB 122), the applicant sought to explain the provenance of the documents provided to the Department on 25 March 2015 and the identified inconsistencies between these documents and the copies of the same documents provided with his visa application.
12.On 3 July 2015, the delegate made a decision refusing to grant the applicant a Protection visa essentially on the bases of adverse credibility findings and the delegate’s assessment of relevant country information on the HEI party. The delegate did not accept that the applicant had been a HEI supporter given the inconsistencies in his accounts of the three claimed incidents of harm, his demonstrated lack of knowledge regarding his support for HEI and his continued residence in the same area of Bangladesh before his departure despite knowing he was in danger and of interest to the AL (CB 125-141).
:The events of the interview are summarised in the delegate’s decision (CB 133-138).
THE APPLICANT’S CLAIMS
In its decision dated 27 January 2017, the Tribunal summarised the applicant’s claims as follows:
7.The applicant’s initial written reasons for claiming protection are contained in a statutory declaration dated 12 July 2013 provided to the Department as an attachment to his visa application forms. In summary, the applicant declares that he is a citizen of Bangladesh, an ethnic Bangladeshi and a Sunni Muslim. He was born in 1988 in Dalikandi village, Dhaka division Bangladesh.
8.The applicant declares he fears returning to Bangladesh. The applicant declares that though he was born in Dalikandi village in 1988, approximately 4 years after his mother’s death he began living with his maternal uncle in a village called Huglagathi in the Keranganj area in Dhaka district. Sometime in 2002 the applicant decided to relocate to Bonshal, close to Babu Bazaar Bridge as he needed to work and it was not possible for his uncle to provide for him anymore.
9.The applicant declares that he attended an Islamic religious school during the period of 1995 to 2000 and that he had a strong interest in Islamic religious principles and values. The applicant declares he is a devout Sunni Muslim who is not only keen to follow Islamic principles and values but also keen that his countrymen, a majority of whom are nominal Sunni Muslims, become true followers of Islam.
10.The applicant declares that since the Awami League came to power in 2008 Bangladeshis in general have suffered a lot. Many Bangladeshis are subject to extortion and have continued to be killed by members and supporters of this political party which is in power at the present time. The applicant declares that sometime in 2009 he was in Bonshal and attending the Sunni mosque daily. There were several persons he thought were Islamic religious clerics who were delivering speeches on topics relating to Islamic principles and values. These men promoted the ideology of protesting in a peaceful manner when things went wrong and the applicant was drawn to their line of thinking. The applicant declares that the men (who he later learned sometime in 2010 were members of Hefajat-e-Islam, an Islamic political party which was outspoken and critical of the government when atrocities were committed by the Awami League and other political parties) used to organise religious meetings at the mosque and he attended several of these meetings since 2009. The applicant declares that such meetings continue to be held in mosque and religious schools to this day.
11.The applicant declares that sometime in 2010 Hefajat-e-Islam political party was formed and he participated in several anti-government protests since then. The party was against several initiatives and changes made by the ruling Awami League party and the Bangladeshi government. For example the Awami League party in the recent past has made several attempts to change the dress code for Muslim females. They have stated that Muslim females do not need to wear the hijab which is contrary to Islamic principles.
12.The applicant declares that sometime in 2011 in the district of Munshigang situated in Dhaka division the Awami League party made changes to what was printed on a ferry ticket. The ferry ticket issued to the public in the district prior to the changes contained the text which meant ‘in the name of God the Compassionate, the Merciful’. However the Islamic text printed on the ferry ticket was replaced with the words which meant ‘hail Narayan’.
13.The applicant declares that the Hefajat-e-Islam party protested against such un-Islamic radical changes made by the ruling party and the applicant took part in several such protests held in the Bonshal area.
14.The applicant refers to ‘Incident 1 = end 2011’, and declares that sometime in 2011 Awami League supporters are members caused damage to a general store of an innocent store owner who was operating in the Bonshal area as he refused to pay extortion money.
15.The Hefajat-e-Islam party reacted immediately and many including the applicant began protest against the acts committed by the Awami League members. They carried banners and shouted slogans on the street. The process lasted for approximately 2 hours.
16.The applicant declares that while he was returning with his two friends, also members of the Hefajat-e-Islam party, after having participated in the protest, the applicant was approaching his workplace and a few Awami League members came towards them. The applicant and his friends were beaten severely with sticks. Some of the men were carrying hockey sticks. The applicant and his friends fortunately managed to escape. The applicant ran towards his employer’s workshop and at that moment his employer came to his rescue and saved him. As his employer is a well-known influential person residing in his village his attackers did not pursue him.
17.The applicant refers to ‘Incident 2 = early 2012’, and declares that sometime early in 2012 while the applicant was about to sleep for the night inside the workshop at approximately 11 PM he heard a person calling his name. He recognised the voice of the person outside the workshop to be that of a local person. He opened the door of the workshop and this person, who the applicant had spoken to previously at a local pond several times, asked if he was interested in playing carrom (a board game). It was not unusual for a person in his area to play carrom late at night. The applicant went outside the workshop with this man and when he got to the street he saw a large group of men carrying sticks. The group of men shouted ‘you are the supporter of Hefajat-e-Islam, we’re going to kill you’. The applicant immediately took to his heels and attempted to flee the area. He ran to the nearby pond and jumped into the water. While he was running he believes some of the men were throwing stones at him as two stones struck the area close to his spinal cord. He was screaming for help and fortunately the villagers came to his rescue and his attackers fled.
18.The applicant refers to ‘Incident 3 = December 2012’, and declares that sometime in December 2012 at approximately midnight the applicant was in the workshop premises when he wanted to use the toilet which was situated on the upper floor of the building. This was a common toilet used by the staff and the owner of the other workshops operating in the same premises.
19.The applicant was about to enter the workshop on the ground floor by the stairway outside, after using the toilet, when he was suddenly attacked by unknown persons. He was beaten severely with the rod and carries several scars on both his legs to this day. The applicant was in a state of confusion as it was not possible to provide sequential details relating to this incident. However he remembers that his attackers also attempted to harm him with broken glass bottles. The applicant has a visible scar on his left palm to this day which was caused by the broken glass bottle. The applicant lost consciousness and does not remember what happened thereafter. The applicant declares that when he eventually regained consciousness at the hospital he learnt that the security guard on duty at the workshop premises that night had found him lying on the floor in an unconscious state. He was taken to the hospital and his life was saved on that occasion.
20.The applicant declares that after this incident his employer, who was sympathetic towards him, arranged his departure from Bangladesh as his life was in danger. The applicant declares that sometime in March 2013 he managed to flee Bangladesh eventually arriving in Darwin on 26 April 2013.
21.The applicant declares that he believes he is at risk of being harmed by members and supporters of the Awami League for reasons of his active membership of the Hefajat-e-Islam party. The applicant declares Awami League members have tried to harm and kill him several times in the recent past. The Bangladeshi police would not intervene in such matters when persons like the applicant are attacked by members and supporters of the ruling party.
22.The applicant declares that he fears being seriously harmed and does not believe the Bangladeshi authorities, including the police, would protect him as he is being targeted by members and supporters of the ruling party and he is an active member of the Hefajat-e-Islam party.
23.The applicant declares the police clearly follow instructions given to them by the ruling party and the government and are against peaceful protests by any opposition party. Those who protest are perceived to be against the government and the ruling party and they do not protect persons like the applicant.
24.The applicant declares that he believes he will always be at risk of being harmed by members of the Awami League no matter where he moves as they are everywhere. He believes he has come to the adverse attention of the members of the Awami League due to his involvement with Hefajat-e-Islam and therefore he does not believe he would be able to relocate to a safe area in Bangladesh.
25.The applicant declares that since approximately 2002 and the time he departed Bangladesh he lived in the Bonshal area in Dhaka, and though his father, stepmother and stepsiblings all reside in Dalikandi village it is not possible for the applicant to relocate there as he is not welcome.
THE TRIBUNAL’S DECISION
In his written submissions filed on 23 April 2021, the Minister summarised the Tribunal’s decision as follows:
15.On 20 January, the applicant attended a hearing with the Tribunal (CB 161-164).3
16.On 27 January 2017, the Tribunal made a decision affirming the delegate’s decision (CB 168-184). The Tribunal found the applicant was not a witness of truth and it was not satisfied that he had told the truth in relation to critical aspects of his claims (CB 177, [53]).
17.The Tribunal found the applicant provided oral evidence that he had been involved in the HEI party since 2008, when there was independent country information that indicated the HEI party only formed in 2010 (CB 177, [55]). The Tribunal did not accept the applicant’s explanation for the discrepancy (namely, that he “wasn’t there for the politics of the party and had minimum knowledge”). The Tribunal found this reflected poorly on the applicant’s credibility and the reliability of his evidence (CB 178, [57]).
18.The Tribunal was also “concerned” about the limited knowledge the applicant demonstrated of the HEI party and its platform and activities, and it was not persuaded that the passage of time or the fact that the applicant was young when “all this happened” adequately explained this. The Tribunal also identified differences between the applicant’s oral evidence and his statutory declaration in relation to the timing of the first incident and whether, during this incident, he was beaten with sticks or had sticks thrown at him. The Tribunal had similar concerns in relation to the second incident namely, the applicant had provided a different year in his oral evidence (2011) to the year provided in his statutory declaration (2012) in respect of when this incident occurred (CB 178-180, [61]-[73]).
19.In relation to the third incident, the Tribunal raised its concerns with the applicant at the hearing that he had failed to mention in his oral evidence that he was injured on his left palm by a broken glass bottle, as was described in his statutory declaration. While the Tribunal accepted that the applicant had a small scar on his left hand, it was not satisfied that his hand was wounded in the circumstances he had claimed. The Tribunal also placed weight on the length of time (namely two years) between the occurrence of all three alleged incidents in 2011 and when he ultimately left Bangladesh in March 2013. The Tribunal noted the applicant had clarified that the last incident occurred in November or December 2012 but found his evidence in this regard had changed “a number of times.” The Tribunal considered this reflected poorly on the applicant’s credibility and the reliability of his evidence. Finally, the Tribunal found the applicant’s continued residence at the same address between 2001 until he left Bangladesh in March 2013 reflected poorly on his claims to have been the target of adverse interest by the AL over a number of years and to have been attacked several times and threatened with death (CB 180-181, [77]-[86]).
20.Accordingly, the Tribunal found that the applicant was not a witness of truth and did not accept that the applicant: was ever involved in the HEI party; was ever politically actively in Bangladesh; was of any adverse interests to any political party (including the AL); would undertake any political activity if he returned to Bangladesh; or would be imputed with a political opinion either in support of the HEI party or against the AL. It therefore did not accept that there was a real chance that the applicant would suffer serious harm, or harm of any kind, if he returned to Bangladesh now or in the reasonably foreseeable future (CB 182, [90]-[92]).
21.The Tribunal noted that the applicant had left Bangladesh by boat and the Bangladesh Emigration Ordinance Act (the EO Act) made it an offence to depart other than in accordance with the procedures specified the EO Act. The Tribunal relied on independent country information to find the Bangladesh authorities did not enforce those provisions and that most returnees, including asylum seekers, were not subject to adverse attention regardless of whether they returned voluntarily or involuntarily. Accordingly, on the evidence before it, the Tribunal did not accept that there was a real chance the applicant would suffer serious harm because he departed Bangladesh in breach of the EO Act, or that he would suffer serious harm as a failed asylum seeker. The Tribunal found the applicant did not have a well-founded fear of persecution and did not satisfy s 36(2)(a) of the Act. On the basis of its previous factual findings and having rejected the factual premise of the applicant’s claims, the Tribunal was also not satisfied that the applicant would suffer significant harm (CB 182-184, [90]-[104]).
:The events of the Tribunal hearing are summarised in its decision (see: CB 174, [33]-34])
THE GROUNDS OF REVIEW
The grounds of review were contained in the application filed in person by the applicant on 27 February 2017 (“the application”). No amended application was ever filed.
The grounds of review consist of six paragraphs, followed by six paragraphs of particulars, which do not appear to relate to any particular grounds. I will treat the six paragraphs of particulars as further grounds.
In his written submissions filed on 10 August 2021, the applicant expressly stated that he withdrew grounds 5 and 6. I will therefore treat those grounds as withdrawn.
Pro bono counsel for the applicant told the court on 15 December 2021 that he did not wish to add to or subtract from anything that the applicant had previously put to the court, except in relation to the point about the Emigration Ordinance 1982 (Bangladesh) and the Overseas Employment and Migration Act 2013 (Bangladesh).
GROUND 1
The first ground of review in the application is:
In making [its] decision, the Administrative Appeals Tribunal acted without jurisdiction or in excess of jurisdiction when it failed to take into account relevant considerations.
At the hearing, the court asked the applicant specifically what relevant considerations he thought that the Tribunal had failed to take into account. He was unable to identify any.
All in all, the applicant has not identified any relevant consideration that the Tribunal failed to take into account, and I have been unable to discern any. Consequently, I am unable to find that ground 1 has been made out.
In his written submissions filed on 10 August 2021, the applicant made submissions in connection with this ground as follows:
The tribunal unreasonably raised doubt about the my (sic) claims and misunderstood my facts forwarded. One example is: finding HEI as a party where as it is a movement.
Those submissions do not really relate to ground 1. However, it is convenient to deal with them at this point.
It was not unreasonable for the Tribunal to raise doubts about the applicant’s claims. The delegate had also found that the applicant’s claims had a number of internal inconsistencies, were vague and lacking in detail, and were implausible. The applicant was on notice that his credibility was in issue. The Tribunal found that the applicant was not a witness of truth for reasons which it explained in detail. The credibility finding was reasonably open to the Tribunal.
The applicant has only identified one claim which he said that the Tribunal misunderstood. That was the Tribunal describing Hefajat-e-Islam (“HEI”) as a party when, the applicant now says, it was a movement rather than a party. However, the applicant himself described HEI as a political party at paragraphs 10 and 11 of his statutory declaration made on 12 July 2013: CB71. It was therefore open to the Tribunal to also describe HEI as a political party rather than as a movement. In any event, the applicant has not explained to the court why there was any significant difference between a political party and a political movement in the context of the present case.
I am not persuaded that the additional matters the applicant said in connection with ground 1 amount to jurisdictional error.
GROUND 2
The second ground of review in the application is:
The tribunal failed to assess harm based on my claims.
The Tribunal only had to assess potential harm to the applicant in connection with those of the applicant’s claims that it accepted, or circumstances that arose on the materials. The Tribunal did not accept any of the applicant’s claims, except that he had left Bangladesh by boat. However, the Tribunal found, incorrectly, that the applicant leaving Bangladesh by boat was a breach of the Emigration Ordinance 1982 (Bangladesh). It was not, because the Emigration Ordinance 1982 (Bangladesh) had been repealed at the time of the Tribunal’s decision. This is discussed further below.
Leaving aside for the moment the Emigration Ordinance issue, the Tribunal was not required to assess harm based on the applicant’s claims because the Tribunal did not accept any of those claims. I am not satisfied that ground 2 is made out.
In his written submissions filed on 10 August 2021, the applicant said in connection with this ground:
The Tribunal asked me questions in a manner to ambush me without giving much explanation as to the need of the question.
These submissions do not really relate to ground 2. However, it is convenient to deal with them now.
The Tribunal was not obliged to explain to the applicant why particular questions were being asked. The applicant has not provided to the court a transcript of the Tribunal hearing or any other evidence that the Tribunal “ambushed” the applicant or asked questions that were irrelevant or harassing. The Tribunal said in its reasons for decision that it pointed out to the applicant during the hearing various inconsistencies in his case. It might have felt to the applicant that he was “ambushed”. However, it was perfectly proper for the Tribunal to question the applicant in such a way as to expose inconsistencies or untruths in his evidence. I am not persuaded that the additional matters the applicant said in connection with ground 2 amount to jurisdictional error.
GROUND 3
The third ground of review in the application is:
The tribunal failed to assess the present situation in Bangladesh since I left.
In relation to this ground, the applicant did not make any oral submissions. However, the applicant said in his written submissions dated 10 August 2021:
The tribunal must under the Migration Act and the relevant convention take into consideration of (sic) the current situation of the receiving country. If the Tribunal finds that I am a failed asylum seeker then the Tribunal must take into account the current situation in the receiving country. I have provided evidence that Bangladesh is a volatile country where my identify (sic) as a Muslim who belongs to a HEI is threatened.
The Tribunal did not accept that the applicant belonged to the HEI, or supported it or was perceived to support it. Therefore, the Tribunal was not required to assess the current situation for people in Bangladesh who support or are perceived to support the HEI.
The Tribunal expressly found that the applicant did not face harm as a failed asylum seeker. The applicant did not claim to be at risk, except as a supporter of HEI. The applicant did not point to anything in the material before the Tribunal that suggested he might have been at risk, other than in connection with HEI, and I have been unable to find anything.
I am not persuaded that the Tribunal erred in the manner alleged.
GROUND 4
The fourth ground of review in the application is:
The tribunal decision effected by the natural justice. (sic)
The applicant did not explain how the Tribunal’s decision or decision making process were affected by a lack of procedural fairness. The applicant has not provided a transcript or other evidence showing that the Tribunal failed to afford him procedural fairness. The applicant was on notice from the delegate’s decision that his credibility was in issue. I have been unable to discern any basis on which it could be properly said that the Tribunal did not afford the applicant natural justice. Ground 4 is not made out.
The applicant did not make any oral submissions in relation to this ground. However, in his written submissions filed on 10 August 2021, the applicant said in connection with this ground:
The tribunal has failed to take into account my evidence and claim collectively which is relevant at the time of my application and hearing.
These submissions do not really relate to ground 4. However, it is convenient to deal with them now.
The Tribunal did take into account the applicant’s evidence and rejected it for reasons which it explained in detail. Those conclusions were open to the Tribunal. The only matters which the Tribunal was obliged to assess collectively were the claims that it accepted and the matters that arose from the materials. There was nothing that the Tribunal was obliged to consider collectively in this case. That was because the Tribunal rejected the applicant’s claims, and there was nothing relevant that arose from the materials. I am not persuaded that the additional matters that the applicant raised in connection with ground 4 amount to jurisdictional error.
GROUNDS 5 AND 6
The applicant said in his written submissions filed on 10 August 2021 that he withdrew these grounds. Accordingly, I will say nothing further about them.
PARTICULAR 1
The first particular in the application is:
AAT unreasonably raised doubt over my claims for political opinion. The Department and the Tribunal misunderstood or misconstrued the facts which was effect the decision. (sic)
I do not accept that the Tribunal unreasonably raised doubts about the applicant’s claims in relation to political opinion. The Tribunal noted various inconsistencies in the applicant’s account which justified the Tribunal’s doubts. For the reasons discussed in relation to ground 1, I do not accept that the Tribunal misconstrued or misunderstood the facts of the case.
PARTICULAR 2
The second particular in the application is:
And for the safety of my life I forced to leave Bangladesh by [boat]. When it became worse, I decided to leave Bangladesh.
This is not a ground of review and does not need to be discussed. At most, it seeks merits review.
PARTICULAR 3
The third particular in the application is:
I argue that the Department and the Tribunal asked many irrelevant questions to test the credibility of my evidence.
The applicant has not identified any irrelevant questions, or provided a transcript of the Tribunal hearing to demonstrate that the Tribunal asked irrelevant questions. Questions were not irrelevant simply because they concerned the applicant’s credibility. It is entirely proper for the Tribunal to test the applicant’s credibility. Nothing in the Tribunal’s summary of the hearing before it suggests that it asked irrelevant questions.
PARTICULAR 4
The fourth particular in the application is:
The Department and the Tribunal found inconsistency because the questions were asked in such a manner for which I was not prepared after arrived by boat in Australia. Sometimes I was nervous and confused at the time of interview with the Department & the tribunal. I did not understand interpreter properly.
The applicant has not provided any evidence that he did not understand the interpreter properly. The applicant did not say anything in his affidavit in support of his application to this court to the effect that he did not understand the interpreter properly. He has not provided a transcript of the hearing before the Tribunal to show that he misunderstood questions. There is nothing in the Tribunal’s reasons for decision that suggests that the applicant did not understand the interpreter who assisted at the hearing before the Tribunal.
The one issue mentioned in the Tribunal’s reasons for decision about interpretation concerned the applicant’s statutory declaration. He said in his statutory declaration that he had been severely beaten with sticks. In his oral evidence to the Tribunal, the applicant said that he had been chased but he said nothing about being severely beaten. When the Tribunal raised this discrepancy with the applicant, he said that he could not remember what happened one month ago. He said the aggressors threw sticks at him and bits of stick might have hit him, but he was not severely beaten. The applicant told the Tribunal that he did not think he had said (in his statutory declaration) that he was severely beaten and that the translator (of the statutory declaration) may have misunderstood.
The Tribunal assessed the claim about the translator of the statutory declaration making a mistake. However, the Tribunal did not accept that claim, largely because the applicant confirmed that the translator had read the statutory declaration back to him before he signed it.
I do not accept, on the evidence before the court, that there was any misunderstanding between the applicant and the interpreter at the hearing before the Tribunal.
The Tribunal assessed the inconsistencies in the applicant’s evidence. The inconsistencies noted by the Tribunal are not the sort of thing that can be explained by nerves, confusion or lack of preparation. For example, the applicant said variously that he had worked for HEI and had not worked for HEI, and that he had been a member of HEI and that he had not been a member of HEI. He said that he had attended rallies for HEI in 2008, but country information showed that HEI did not exist until 2010.
Basically, it was open to the Tribunal to consider, as it apparently did, that if the applicant had been telling the truth, he would not have been confused or have needed any particular preparation or have had substantial inconsistencies in his account.
PARTICULAR 5
The fifth particular in the application is:
For the protection of my life and I became serious target by the Police, Awami League gang and their activists.
This is not a ground of review and does not need to be discussed. At most, it seeks merits review.
PARTICULAR 6
The sixth particular in the application is:
The Department has accepted that I was very confused. I, myself was not understanding what answer I was giving for what question. I will provide more details in my Amended Application.
The applicant did not file an amended application. He did not at any stage provide more details of his alleged confusion. The Department, meaning the delegate, did not find that the applicant was confused. The delegate found at page 10 of his or her reasons (CB137) that the applicant’s account of a particular event was “internally confused”. This is different to the applicant being confused. The account being “internally confused” means that the account of the event contained aspects that were inconsistent with each other. There is nothing to support the applicant’s claim that he did not understand the questions that were asked of him or his own answers.
PARTICULAR 7
The seventh particular in the application is:
I believe I was denied procedural fairness when the hearing was conducted not freely and fairly.
The applicant has not identified any particular manner in which the hearing before the Tribunal was not conducted freely and fairly. I have been unable to discern any.
EMIGRATION ORDINANCE 1982 (BANGLADESH)
As mentioned above, the Tribunal said in relation to the applicant’s return to Bangladesh the following:
93.While not raised by the applicant as a concern, during the hearing the Tribunal noted the applicant had left Bangladesh by boat. The Tribunal noted that while the Department of Foreign Affairs and Trade (DFAT) Country Information Report on Bangladesh dated 5 July 2016 noted the Bangladesh Emigration Ordinance Act makes it an offence to depart from Bangladesh other than in accordance with the procedures laid down in that Act, the report also states that DFAT is not aware of any cases in which the authorities have enforced those provisions. The Tribunal also noted the report assessed that most returnees, including asylum seekers, are not subject to adverse attention regardless of whether they have returned voluntarily or involuntarily.
94.In response the applicant told the Tribunal he did not know what the situation would be like if he returns and he doesn’t think the government will do anything to him as the main government is OK, although he remains concerns about people who had an issue with the applicant due to his support of Hefajat-e-Islam.
95.On the evidence before it the Tribunal does not accept there is a real chance the applicant will suffer serious harm because he departed Bangladesh in breach of the Emigration Ordinance Act. The Tribunal does not accept there is a real chance the applicant will suffer serious harm because he is a returnee and failed asylum seeker if he returned to Bangladesh now or in the reasonably foreseeable future.
It was common ground that, at the time of the Tribunal’s decision, the Emigration Ordinance 1982 (Bangladesh) had been repealed by the Overseas Employment and Migration Act 2013 (Bangladesh).
The applicant did not claim that he was at risk of harm because he had departed Bangladesh by boat. However, the Tribunal considered that this issue arose on the materials before it, which included the Department of Foreign Affairs and Trade report dated 5 July 2016 on Bangladesh. The DFAT report noted at paragraph 5.20 that the Emigration Ordinance 1982 (Bangladesh) made it an offence to depart Bangladesh other than in accordance with the procedures laid down in the Ordinance. The DFAT report did not say what those procedures were. However, the Tribunal proceeded on the assumption that departing Bangladesh by boat was an offence.
Apart from the DFAT report, which erroneously said that departing from Bangladesh other than in accordance with the repealed Emigration Ordinance 1982 (Bangladesh) was an offence, there was nothing in the materials before the Tribunal that raised any issue about the applicant’s return. If the Emigration Ordinance 1982 (Bangladesh) is taken out of the equation, as it must be, because it had been repealed, there was nothing before the Tribunal that raised the issue that the applicant was at risk of harm because he departed Bangladesh by boat.
It follows that the Tribunal was not bound to consider the question of whether the applicant faced a real risk of serious or significant harm because he departed Bangladesh by boat. The Tribunal’s consideration of that question was superfluous. Any errors of fact that it made in that consideration were also superfluous.
I note that the applicant himself told the Tribunal that he did not think the government would do anything to him if he returned because they were “OK”, and his only concern was with people who opposed HEI. The Tribunal rejected all of the applicant’s claims about HEI. Therefore, on the material before the Tribunal (excluding the incorrect reliance on the Emigration Ordinance 1982 (Bangladesh), but including the applicant’s own evidence, and including the findings made by the Tribunal) there was no issue concerning any risk of harm to the applicant upon his return to Bangladesh.
Even if such an issue had arisen, the DFAT report noted, and the Tribunal accepted, that returnees to Bangladesh are not subject to adverse attention, with the possible exception of those who are high-profile political activists, including those who have been convicted of war crimes in absentia. That finding survives the realisation that the Emigration Ordinance 1982 (Bangladesh) has been repealed.
It follows that the Tribunal’s error in assuming that the Emigration Ordinance 1982 (Bangladesh) was still in force at the time of its decision is immaterial.
The position may have been different if there had been another Act in force in Bangladesh at the time of the Tribunal’s decision that meant that the applicant was at real risk of serious or significant harm upon return to Bangladesh. However, for that argument to succeed, there would have needed to be an obligation on the Tribunal to seek out information that actually ran counter to:
(a)the applicant’s own concession that he was not at risk from the government; and
(b)the Tribunal’s finding that (with very limited exceptions that did not include the applicant) returnees were not the subject of adverse attention.
Obviously, there was no such obligation.
OTHER BANGLADESHI LEGISLATION
For completeness, however, I will consider two Acts mentioned by the applicant. The first was the Overseas Employment and Migrants Act 2013 (Bangladesh). Subsection 4(1) of that Act said:
Migration.– (1) No citizen shall migrate or cause others to migrate for overseas employment except in accordance with the provisions of this Act.
The parties were in dispute about whether that provision means:
(a)no citizen shall migrate, or cause others to migrate, for overseas employment except in accordance with the provisions of this Act; or
(b)no citizen shall migrate, or cause others to migrate for overseas employment, except in accordance with the provisions of this Act.
In my view, the provision means the former. The Act is all about migration for overseas employment. It specifically excludes in s.5 migration for various other purposes including education, business, and “any other purpose which is not conflict with the purposes of this Act”. The purposes of the Act were set out in the preamble as follows:
An Act to promote opportunities for overseas employment and to establish a safe and fair system of migration, to ensure rights and welfare of migrant workers and members of their families, to enact a new law by repealing the Emigration Ordinance, 1982 (Ordinance No. XXIX of 1982), and for making provisions in conformity with the International Convention on the Rights of Migrant Workers and the Members of Their Families 1990 and other international labour and human rights conventions and treaties ratified by the People's Republic of Bangladesh
WHEREAS it is expedient and necessary to promote opportunities for overseas employment and establish a safe and fair system of labour migration, to ensure rights and welfare of migrant workers and members of their families, to enact a new law by repealing the Emigration Ordinance, 1982 (Ordinance No. XXIX of 1982), and for making provisions in conformity with the International Convention on the Rights of Migrant Workers and the Members of Their Families 1990 and other international labour and human rights conventions and treaties ratified by the People's Republic of Bangladesh; it is, THEREFORE, enacted as follows: …
In my view, seeking asylum in another country is a purpose which is not in conflict with the purposes of the Act. The purposes of the Act were to protect migrant workers. The applicant is not such a person.
The applicant also referred to the Prevention and Suppression of Human Trafficking Act, 2012 (Bangladesh). Section 5 of that Act made human trafficking an offence. Section 3 defined human trafficking as follows:
3.Human Trafficking – (1) “human trafficking” means the selling or buying, recruiting or receiving, deporting or transferring, sending or confining or harbouring either inside or outside of the territory of Bangladesh of any person for the purpose of sexual exploitation or oppression, labour exploitation or any other form of exploitation or oppression by means of –
(a)threat or use of force; or
(b)deception, or abuse of his or her socio-economic or environmental or other types of vulnerability; or
(c)giving or receiving money or benefit to procure the consent of a person having control over him or her.
(2)If the victim of trafficking is a child, it shall be immaterial whether any of the means of committing the offence mentioned-in clause (a) to (c) of subsection (l) is used or not.
Explanation. –For the purposes of this section, if any person induces or assists any other person through deception and for bad intention to move, migrate or emigrate for work or service, either inside or outside of the territory of Bangladesh, though he knows that such other person would be put into exploitative labour conditions similar to practices of servitude or forced labour or into any other form of exploitation or oppression as mentioned in sub-section (15) of section 2, such act of the person shall be included as an act within the meaning of “human trafficking” as defined in sub-section (l).
The applicant did not suggest that he might be thought to have trafficked anyone else. He argued that he might be thought to have trafficked himself, by deporting or transferring himself. However, the provision also requires that the deporting or transferring occur by certain means. None of those means could possibly be used by a person against himself.
Nevertheless, the applicant argued that the Prevention and Suppression of Human Trafficking Act, 2012 (Bangladesh) could mean that there may be a different outcome if the matter were remitted to the Tribunal, as demonstrated by a blog post published by the University of New South Wales on 13 August 2020. The blog says that Prevention and Suppression of Human Trafficking Act, 2012 (Bangladesh) began to be enforced in 2015 (two years before the Tribunal made its decision). Enforcement took the form of some traffickers being shot dead, and the rescue of people who were in the process of being trafficked.
In any event, the applicant does not fall within the Prevention and Suppression of Human Trafficking Act, 2012 (Bangladesh), for the reasons mentioned above. In addition, as explained above, there was no obligation on the Tribunal to search out any Bangladeshi legislation concerning departure from Bangladesh by boat.
CONCLUSION
For these reasons, I am not persuaded that the Tribunal made a jurisdictional error in the present case. The application will be dismissed with costs. I will hear the parties on the question of quantum, because the hearing took an unusual course.
I am very grateful to the applicant’s pro bono legal practitioners for their assistance.
I certify that the preceding eighty (80) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Riley. Associate:
Dated: 25 January 2022
1
0
3