BFM16 v Minister for Immigration

[2016] FCCA 2037

FEDERAL CIRCUIT COURT OF AUSTRALIA

BFM16 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2037

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – applicant claiming a fear of harm in Bangladesh – applicant married to an Australian citizen and with an Australian child – Tribunal finding humanitarian issues in relation to the wife and child but failing to consider the impact of those concerns on the applicant – jurisdictional error established.

Legislation:

Migration Act 1958 (Cth), ss.5J, 36, 351, 417, 500, 501J

Cases cited:

NAHI v Minister for Immigration [2004] FCAFC 1

Minister for Immigration v SZMDS (2010) 240 CLR 611
Minister for Immigration v SZQOT (2012) 206 FCR 145
Minister for Immigration v SZUXN [2016] FCA 516

Applicant: BFM16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1277 of 2016

Judgment of: Judge Driver

Hearing date: 9 August 2016

Delivered at: Sydney

Delivered on: 16 September 2016

REPRESENTATION

Counsel for the Applicant: Mr V Kline

Counsel for the Respondents: Mr T Reilly

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. A writ of certiorari shall issue removing the record of the Administrative Appeals Tribunal decision made on 4 April 2016 into this Court for the purpose of quashing it.

2. A writ of mandamus shall issue, requiring the Administrative Appeals Tribunal to redetermine the review application before it according to law.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1277 of 2016

BFM16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

1. The applicant claims to fear harm in Bangladesh by reason of his religion.  The Administrative Appeals Tribunal, formerly the Refugee Review Tribunal (Tribunal), affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.  The applicant seeks review of that decision principally on the basis that the Tribunal did not take proper account of the circumstances of his wife and child, who are Australian citizens.

2. The following statement of background facts is derived from the submissions of the parties.

3. The applicant was born in Bangladesh in 1986 and first came to Australia on 23 April 1991 as a four year old when his father was posted to Australia by the Bangladesh diplomatic service.  He completed four years of formal education in Australia, returning to Bangladesh at the age of ten in 1996[1]. 

   [1] Court Book (CB) 69.7

4. The applicant returned to Australia in January 2002 at the age of 16, when his father obtained a new posting, and has remained in Australia ever since on various visas.  He has a lengthy criminal and migration history[2].  He has thus spent approximately 20 of his 30 years in Australia.  He speaks Bengali “poorly and with a strong accent”.  Whilst still formally Islamic, he is “completely secular” and is “thoroughly Australianised”.

   [2] set out at CB 69-71

5. In March 2012 he married an Australian citizen and they have a three year old daughter who is also an Australian citizen.

6. The applicant applied for a protection visa on 15 September 2015[3]. His claim was that, if returned to Bangladesh, extremist Muslim groups would target him for his obvious differences and for marrying a non-Muslim. He would be seen as having betrayed Islam. He, and his wife and child would be harassed, threatened and targeted, and could even lose their lives.

   [3] CB 1-64

7. The delegate interviewed the applicant on 6 November 2015[4], and refused the visa on 1 February 2016[5].  The applicant applied to the Tribunal for review on 3 February 2016[6].  The Tribunal held a hearing on 4 March 2016[7].

   [4] CB 75.3

   [5] CB 66-88

   [6] CB 90-96

   [7] CB 140-142

8. The Tribunal found the applicant’s claimed fears for this reason were not well-founded[8]. The Tribunal also found the applicant was not owed protection under the “complementary protection” provisions in s.36(2)(aa) of the Migration Act 1958 (Migration Act)[9].

   [8] CB 164-165 at [32]-[38]

   [9] CB 165-167 at [39]-[45]

The judicial review application

1. These proceedings began with a judicial review application filed on 9 May 2016.  The applicant now relies upon an amended application filed on 11 July 2016.  The grounds in that application are:

   1. In finding that the Applicant’s wife and child would suffer “continuing fears for their person safety” if returned to Bangladesh, whilst the Applicant would not, the Second Respondent addressed the wrong issues, asked itself the wrong questions, and reasoned in an illogical and irrational fashion amounting to legal unreasonableness, and giving rise to jurisdictional error.

   2. The Second Respondent failed to perform its statutory task by misinterpreting ‘serious harm’ within the meaning of s.5J(5) of the Migration Act 1958 (Cth) (the Act) and ‘significant harm’ within the meaning of s.36(2A) of the Act, and thus fell into jurisdictional error.

   Particulars

   Whilst acknowledging that if the Applicant’s wife and child (and by extension the Applicant) were returned to Bangladesh “there would be continuing fears for the personal safety”, the Second Respondent erroneously considered that such would not rise to the “level of significant or serious harm in the sense of s.36(2)(a) or 36(2)(aa)” of the Act.

   3. In ignoring its own findings and in failing to address the Applicant’s claim as made, the Second Respondent’s decision displayed legal unreasonableness, and gave rise to jurisdictional error.

   Particulars

   (i) In rejecting the Applicant’s claim, the Second Respondent compared him to various groups in Bangladesh with whom he had little or nothing in common.

   (ii) The Second respondent ignored country information cited by it in relation to the rise in Islamic militancy which has resulted in attacks and violence against those who have been accused of insulting or challenging Islam.

   (iii) The Second Respondent ignored the acknowledged individual circumstances of the Applicant, namely that he is a westernised and Australianised secular Muslim married to a Christian wife who is an Australian citizen, with a child who is also an Australian citizen, such that their family group would be seen as insulting or challenging Islam.

2. I have before me as evidence the book of relevant documents filed on 20 June 2016. 

3. Both the applicant and the Minister made both pre-trial written submissions and oral submissions at the trial of this matter on 9 August 2016.

Consideration

Ground 1 – did the Tribunal fall into error in finding that the applicant’s wife and child would suffer continuing fears for their personal safety if returned to Bangladesh while the applicant would not?

1. The applicant’s wife and child, being Australian citizens, have no need to apply for protection.  Nevertheless, the Tribunal expressed some concerns for their welfare, having accepted that if the applicant returns to Bangladesh, they will go with him.  Under the heading, “Humanitarian considerations” the Tribunal said[10]:

   [10] CB 167-168 at [46]-[52]

   Under ss.351(1) [Part 5 migration reviews] and 417(1) [Part 7 protection reviews] of the Migration Act 1958 (the Migration Act), the Minister may substitute for a decision of the Tribunal in the Migration and Refugee Division a decision that is more favourable to an applicant if the Minister thinks that it is in the public interest. The Minister has the same public interest power under s.501J(1) of the Migration Act to substitute a decision of the Tribunal in the General Division (i.e. a protection visa decision reviewable under s.500 of the Migration Act).

   The Minister has issued guidelines explaining, for example, the circumstances in which he or she may wish to consider exercising his or her public interest powers under ss.351 417 and 501J, how a person may request consideration of the exercise of these powers, and informing officers of the Department of Immigration (the Department) when to refer a case to the Minister for consideration.

   The Minister’s guidelines indicate that the Minister will generally only consider the exercise of the public interest powers in cases which are referred to the Department by a review tribunal or which exhibit one or more unique or exceptional circumstances.

   The circumstances which, according to the Minister’s guidelines, may be unique or exceptional include the following:

   ·     strong compassionate circumstances which may result in irreparable harm and continuing hardship to an Australian citizen or family unit;

   ·     circumstances that may bring Australia’s obligations as a party to the Convention on the Rights of the Child (CROC) into consideration.

   In the present case it is difficult not to feel sympathy for the situation of the Applicant’s wife and infant child, both of whom are Australian citizens. I consider that they have demonstrated a strong and enduring relationship with him despite the obvious difficulties posed by his lengthy term of imprisonment followed by immigration detention. His evidence, which I accept, is that he is in daily telephone contact with them and makes it a point to read or tell stories to his daughter on each occasion. His wife regularly visits him from Canberra, balancing the need for their child to be reunited with him against the fear of exposing her to the circumstances of a place of detention. It was evident at the hearing that the child is very strongly attached to her father.

   I accept the Applicant’s wife’s evidence that she believes sufficiently strongly in the need to remain together as a family with her husband, in particular for the welfare of their child, that if necessary she would leave behind her own family and her career in the Department of Defence in Canberra and live in Bangladesh with him. I have not directly considered the circumstances she and the child might face there, since neither of  them are the subject of this review, but I believe it would be reasonable to expect they would be required to endure substantial personal hardship. Among these difficulties, they would be readily identifiable as ‘foreign’ - from their appearance, the fact neither speaks Bengali or has had any particular experience of life in Bangladesh and their Christian religion – and would be likely as a result to suffer substantial cultural and social isolation. Although I am not satisfied the family would be destitute it appears likely that they would experience some degree of economic hardship and living standards significantly below those they have known and which would be regarded as satisfactory in Australia. The health care and education services which would likely be available to them would most probably also fall far below Australian standards.

   Further, while they might not be exposed to risks of physical violence which would rise to the level of significant or serious harm, in the sense of ss.36(2)(a) or 36(2)(aa) the information before the Tribunal nevertheless indicates that Bangladesh is a significantly less safe country than Australia, with higher rates of crime, public disorder and corruption. I consider that for both of them there would be continuing fears for their personal safety which would exacerbate the other pressures acting on them so as to make their lives more difficult.

   For these reasons I have asked that this case be brought to the Minister’s attention.

2. I was told at the trial of this matter that the Minister had declined to exercise his power under s.417 of the Migration Act. I was also told that the applicant had previously applied for a partner visa with his wife but that this had been refused on character grounds on account of his criminal record[11].

   [11] See footnote 2

3. Although the Tribunal identified humanitarian considerations affecting the applicant’s wife and child, the Tribunal was not satisfied, in the context of considering the applicant’s claims, that his wife and child would face a real chance of harm in Bangladesh.  At [36] the Tribunal said[12]:

   While I accept that the Applicant’s wife and child would be recognised as foreigners and Christians in Bangladesh I am not satisfied they would be at risk of harm for this reason or that the Applicant’s own association with them would put him in danger. I acknowledge that two foreigners were murdered and a third violently attacked in late 2015 but, while clearly concerning, these appear to have been isolated incidents and I am not satisfied they demonstrate that foreigners generally or foreigners who are Christians face a real chance of harm.

   [12] CB 165

4. It is also apparent from what the Tribunal says at [32] of its reasons[13] that the Tribunal proceeded on the basis that the applicant’s wife and child would accompany him to Bangladesh as they had claimed[14].  

   [13] CB 164

   [14] CB 157 at [18] and CB 167 at [51]

5. Paragraph 36 of the Tribunal’s reasons needs to be read in context with [35] where the Tribunal said:

   The information before the Tribunal indicates that Islamic militant groups in Bangladesh have harassed or physically attacked a range of targets such as the police and military, leaders and activists of secular political parties including the governing Awami League and various communist parties, atheist or secular bloggers, those who question aspects of Islamic religion or practice and members of minority religions. There have also been a small number of attacks on foreigners in recent months. There is no indication that the simple fact of having lived abroad for extended periods – even, as in the case of the Applicant, for the majority of one’s life in a western country – exposes individuals to the risk of harm from Islamic fundamentalists. It is true that conversion from Islam to Christianity is regarded as a grave offence by such groups but the Applicant has not converted and I am not satisfied there is any reason to believe he would be suspected of having done so. There is nothing in the available information to suggest that the fact of his having married a Christian would lead to a view that he himself had changed his religion, was an apostate or had betrayed Islam. He is generally non-observant in his religious practice but this does not distinguish him from many other Bangladeshis in what is still a secular state whose laws forbid discrimination on the grounds of religion and whose security forces have acted swiftly and resolutely to combat Islamic terrorist activities. Nor is he in any sense an atheist or a person who would question or criticise Islam and its practices in public. Given that he spent almost six years of his schooling in Bangladesh I am not satisfied that any lack of familiarity with the behavioural norms generally expected of Bangladeshi citizens would lead him to other forms of conduct which might so outrage Islamic sensibilities as to expose him to harm. Nor am I satisfied that he could not take reasonable steps to modify the behaviour he has mentioned in this context, such as staying out at night and visiting night clubs or cafes – behaviour which I am not satisfied could reasonably be seen as engaging the provisions of s.5J(3)(a) to (c) – so as to avoid any chance of harm which it might otherwise expose him to.

6. The Tribunal’s finding at [36] should be taken as a finding by the Tribunal that the applicant’s wife and child would not be harmed for the reasons advanced by the applicant for his own fear of returning to Bangladesh.  In relation to complementary protection, the Tribunal found at [43] that[15]:

   Finally, I note the Applicant claims in his protection visa application that he would be unable to subsist in Bangladesh: he has no close relatives there and no family support mechanisms; there are no government welfare or social security services; he cannot speak the language well and his wife cannot speak it at all; he has no money and no qualifications; he and his family will be destitute and forced to live in poorer neighbourhoods where their safety would be at risk. At the hearing he emphasised his claim that he would be unable to find work and said that even those who hold double degrees are unemployed. His evidence was, however, that he does have relatives, including aunts and uncles, who live in … and elsewhere in Bangladesh. One of his uncles lives in a house owned by his father in …. While he suggested that his relationship with his father’s side of the family is not good I am not satisfied that he would be entirely devoid of support from relatives if he were to return. Further, I consider that his advanced English language abilities and knowledge of life in a western environment – attributes which are in demand in Bangladesh – could be expected to stand him in good stead in seeking employment. I am not satisfied there is any reason why he would be unable to find employment of a kind which would, at least, allow him and his family to subsist.

   [15] CB 166

7. It may be accepted that the Tribunal found that the applicant would not face serious or significant harm in Bangladesh for the reasons he asserted.  Nevertheless, for the purposes of considering the humanitarian considerations, the Tribunal recognised that the applicant’s wife and child would experience significant hardship in Bangladesh and that they would entertain fears for their personal safety (which would not rise to a level of serious or significant harm) but which would exacerbate other pressures on them so as to make their lives more difficult.

8. These were matters not expressly raised by the applicant for the purposes of his own claims but, as implicitly recognised by the Tribunal, they did squarely arise on the material and were considered by the Tribunal as humanitarian considerations. 

9. The question is whether they ought to have been considered by the Tribunal for the purposes of the applicant’s refugee and complementary protection claims.  In Minister for Immigration v SZQOT[16] (SZQOT) the majority of the Full Federal Court found that an Independent Merits Reviewer had applied an incorrect test which went to jurisdiction.  In that case, the Reviewer had found that the visa applicant would be separated from his wife and child because they would not, or could not, return with him to Iraq.  The majority found that that separation was capable of giving rise to a protection obligation under the Refugees Convention which should have been considered in the context of potential psychological harm.

   [16] (2012) 206 FCR 145

10. The facts here are different in that the applicant would not be separated from his wife and child should he return to Bangladesh.  However, as was acknowledged by the Tribunal, the applicant’s wife and child would suffer real hardship in Bangladesh and would be exposed to crime, public disorder and corruption.  The Tribunal acknowledged that the applicant’s wife and child would have continuing fears for their personal safety exacerbating other pressures acting on them.

11. In my view, and consistently with the reasoning in SZQOT, while it was commendable for the Tribunal to consider these issues as humanitarian considerations, they should have been considered by the Tribunal in assessing the applicant’s claims for protection. It is true that the Tribunal found that the applicant’s wife and child would not suffer serious harm, but the Tribunal conceded at [51] that it had not directly considered the circumstances the applicant’s wife and child might face in Bangladesh.

12. The Tribunal had found that the applicant would be returning to Bangladesh as part of a family unit, and that the other members of the family unit would suffer real hardship there, although they would not be destitute.  They might not be specifically targeted for harm but they would entertain real fears for their personal safety.  The applicant’s wife claimed to work at the Australian Department of Defence, which claim appears to have been accepted by the Tribunal.

1. In my opinion, the circumstances confronting the applicant’s wife and child needed to be considered by the Tribunal in two respects: first, the Tribunal needed to consider if those circumstances had a material impact when considering the applicant’s claims cumulatively; secondly, the Tribunal needed to consider whether the fears and hardship confronting the applicant’s family posed a risk of the applicant experiencing psychological harm.  This was not expressly raised by the applicant but, in my view, it sufficiently clearly arose from the material. 

2. I conclude that the Tribunal fell into essentially the same error as that committed by the Reviewer in SZQOT and that the applicant should receive the relief he seeks.

3. It is not necessary to consider the alternative grounds advanced by the applicant, which are essentially different formulations of the first ground.  Less there be any doubt, however, I do not accept that the Tribunal misinterpreted the expressions “serious harm” and “significant harm”.  The error I have identified is not a misinterpretation of the legislative criteria but, rather, an overlooking of integers of the claims that arose from the material. 

4. The third ground claims that the Tribunal’s decision was legally unreasonable.  The particulars of the applicant’s grounds invite merits review.  It is clear from Minister for Immigration v SZUXN[17] that for such a ground to succeed “extreme” illogicality must be shown such that reasonable minds could not differ about the conclusions reached.  “Emphatic disagreement” with the Tribunal’s reasoning is not sufficient to make out illogicality[18]. Having regard to these principles there was no illogicality or irrationality in the Tribunal noting a lack of information about harm to returnees from Bangladesh from western countries[19].  Contrary to the applicant’s submissions, the Tribunal did not “assume” because the applicant was a member of this group he would not suffer harm.  Contrary to the applicant’s submissions the Tribunal did consider the applicant’s circumstances and claims[20], but after doing so was simply not satisfied that the applicant’s claimed fears were well founded.  The Tribunal also considered independent country information concerning Bangladesh[21], the choice and interpretation of which were a factual matter for it[22].  This ground fails.

   [17] [2016] FCA 516 at [44]-[56], and in particular the comments at [52], [57]-[58]

   [18] Minister for Immigration v SZMDS (2010) 240 CLR 611 at [124]

   [19] at CB 166 at [41]

   [20] at CB 164-167 at [32]-[45]

   [21] at CB 158-163

   [22] NAHI v Minister for Immigration [2004] FCAFC 1 at [11]-[13]

Conclusion

1. The applicant has succeeded in establishing that the decision of the Tribunal is affected by jurisdictional error.  I will grant relief in the form of the constitutional writs of certiorari and mandamus. 

2. I will hear the parties as to costs.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date: 16 September 2016