BHT22 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 1021
•9 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BHT22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1021
File number: PEG 67 of 2022 Judgment of: JUDGE KENDALL Date of judgment: 9 November 2023 Catchwords: MIGRATION – Protection visa – decision of the Administrative Appeals Tribunal – whether the Tribunal failed to properly consider the first applicant’s complementary protection claims – jurisdictional error established – writs issued. Legislation: Migration Act 1958 (Cth), ss 36 & 476 Cases cited: DQU16 v Minister for Home Affairs [2021] HCA 10
Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33
MZAPC v Minister for Immigration and Border Protection [2021] HCA 17
MZYXS v Minister for Immigration and Citizenship [2013] FCA 614
Nathanson v Minister for Home Affairs [2022] HCA 26
SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774
SZTPK v Minister For Immigration & Anor [2014] FCCA 2259
Division: Division 2 General Federal Law Number of paragraphs: 81 Date of hearing: 24 July 2023 Place: Perth Counsel for the Applicants: Mr H Glenister Solicitor for the Applicants: William Gerard Legal Pty Ltd Counsel for the First Respondent: Mr T Lettenmaier Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore ORDERS
PEG 67 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BHT22
First Applicant
BHU22
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
9 NOVEMBER 2023
THE COURT ORDERS THAT:
1.A writ of certiorari issue quashing the decision of the second respondent dated 4 March 2022.
2.A writ of mandamus issue directed to the second respondent requiring it to reconsider and determine the applicants’ application for review according to law.
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
JUDGE KENDALL:
BACKGROUND
The first applicant is a citizen of Nigeria (Court Book (“CB”) 14). The second applicant is a citizen of The Bahamas (CB 40).
In January 1998 the first applicant moved to The Bahamas (CB 27).
In June 1998, the first and second applicant commenced a relationship. They were married in The Bahamas in May 2001 (CB 16). They now have two children (neither of whom are the subject of this judgment) (CB 64).
The second applicant and the applicants’ children arrived in Australia in June 2012 as the holders of visitor visas (CB 64).
The second applicant applied for an Australian student visa. That visa was ultimately granted (CB 64).
In January 2015, the first applicant arrived in Australia as a secondary applicant on the second applicant’s student visa (CB 21 & 23).
On 30 November 2016, the first applicant applied for a Protection (Class XA) (Subclass 866) visa (the “visa”) (CB 1-63). The second applicant and the applicants’ children were included in that visa application as members of the first applicant’s family unit (CB 2). The applicants provided a number of supporting documents with the visa application (CB 64-74) and appointed a registered migration agent to assist them with their visa application (the “representative”) (CB 95-99).
On 11 January 2017, the then Department of Immigration and Border Protection (the “Department”) notified the first applicant that the protection visa application, insofar as it related to his children, was invalid because his children held dual citizenship (CB 101-106).
On 23 January 2017, the applicants’ representative provided submissions to the Department, together with statements from the first applicant and the applicants’ children (CB 107-116).
On 7 June 2017, the first applicant was invited to attend an interview at the Department’s Perth office on 19 June 2017 (CB 117-118).
On 14 June 2017, further submissions and supporting documents were provided to the Department on behalf of the applicants (CB 119-132).
On 24 June 2017, the applicants’ representative provided further supporting documents to the Department (CB 133-136).
On 21 August 2017, a delegate of the first respondent (the “Minister”) refused to grant the applicants the visa (CB 141-149).
On 3 September 2017, the applicants sought review of the delegate’s decision by the Administrative Appeals Tribunal (the “Tribunal”) (CB 150-152).
On 3 September 2017, the applicants’ representative notified the Tribunal that they were appointed to assist the applicants with the Tribunal review (CB 153-154). The representative also provided the Tribunal with a statutory declaration signed by the first applicant (CB 155-158).
On 19 July 2021, the applicants were invited (through their representative) to appear at a hearing before the Tribunal on 18 August 2021 (CB 193-199).
On 12 August 2021, the applicants’ representative provided submissions and supporting documents to the Tribunal (CB 206-279).
On 18 August 2021, the applicants appeared (with their representative) at a hearing before the Tribunal (CB 280-282). The applicants’ children also attended the hearing (CB 280).
On 28 October 2021, the applicants’ representative provided a medical report to the Tribunal relating to the first applicant (CB 283-286).
On 4 March 2022, the Tribunal affirmed the delegate’s decision refusing to grant the applicants the visa (CB 295-318).
On 8 April 2022, the applicants’ representative applied to this Court for judicial review of the Tribunal’s decision on behalf of the applicant. The application is brought pursuant to s 476 of the Migration Act 1958 (Cth) (the “Act”). To obtain assistance from this Court, the applicants must show that the Tribunal fell into jurisdictional error.
On 28 March 2023, an amended application was filed with this Court on behalf of the applicants.
APPLICATION TO THIS COURT
As outlined above, an amended application was filed on behalf of the applicants on 28 March 2023. That amended application contained one substituted ground of review, as follows:
1.The Second Respondent (Tribunal) made a jurisdictional error by failing to consider
engage in an active intellectual process withthe First Applicant’s Bahamian complementary protection claims, in that it overlooked or did not engage in an active intellectual process with the claim that the First Applicant was at a greater risk, which could have amounted to a real risk, of significant harm than the general population of The Bahamas due to being a foreigner and entrepreneur/business owner.2.The Tribunal made a jurisdictional error by failing to engage in an active intellectual process with the Second Applicant’s claims.The materials before the Court include the amended application for judicial review filed on behalf of the applicants on 28 March 2023, a Court Book numbering 318 pages (marked as Exhibit 1), written submissions filed on behalf of the applicants on 23 March 2023 and written submissions filed on behalf of the Minister on 6 April 2023.
The matter came before this Court for hearing on 24 July 2023. The applicants were represented at that hearing by Mr Hamish Glenister from William Gerard Legal Pty Ltd (“Mr Glenister”). The Minister was represented by Mr Tom Lettenmaier of counsel (“Mr Lettenmaier”).
THE TRIBUNAL’S DECISION AND RELEVANT FINDINGS
As will be discussed further below, the applicants’ core contention is that the Tribunal erred by failing to consider the first applicant’s complementary protection claims. In particular, the applicants contend that the Tribunal either overlooked, or failed to actively engage in an intellectual process with, the first applicant’s claim that he would be at greater risk of real or significant harm than the general population because he was a foreigner and an entrepreneur/business owner.
It is thus useful to outline the Tribunal’s decision in detail.
The Tribunal’s decision in this matter is 24 pages in length and spans 112 paragraphs.
The Tribunal outlined information contained in the first applicant’s statutory declaration (dated 26 November 2016) and noted the applicants’ protection claims as follows (at [16]):
(a)the first applicant applied for a protection visa because he cannot return to The Bahamas;
(b)in June 2011, the first applicant was shot by an armed gunman whilst at work. The gunman demanded money, yelled “such foreigners deserve to die” and shot the applicant in the chest;
(c)the first applicant fears for his life as victims are commonly killed in The Bahamas to “do away with vital evidence”;
(d)in mid-2012, the applicants’ house was broken into and a gunman attempted to sexually assault the second applicant;
(e)in 2013, the first applicant’s car was broken into by a man. When the first applicant confronted him, he said “you came by plane you will leave in a bag”; and
(f)the first applicant believes he was targeted because he was a foreigner and is afraid to return to The Bahamas because of the hatred for foreigners there.
The Tribunal also noted that the applicants’ representative had provided submissions stating that “attacks on foreigners in The Bahamas are rampant and that the crimes committed against [the first applicant] were racially motivated”. The Tribunal noted a number of media articles regarding crime (including crime against tourists and foreigners) were cited in that regard (at [18]).
The Tribunal accepted that the first applicant was owed protection in respect of his country of birth, Nigeria. The Tribunal then explained that it needed to consider whether the first applicant, who was a permanent resident of The Bahamas, could “obtain safe third country protection there”. The Tribunal also set out the relevant legislative provisions and case law in that regard (at [67]-[71]).
The Tribunal noted that the first applicant had lived in The Bahamas for approximately 17 years prior to coming to Australia and that he held permanent residency on the basis of his spousal relationship with the second applicant (who was a citizen of The Bahamas). The Tribunal noted that the first applicant claimed to fear harm from persecution on the basis that Bahamians hate foreigners and the first applicant, being Nigerian, is seen as a foreigner. The Tribunal identified that the issue before it was whether s 36(4) of the Act applied to the first applicant and whether there were “substantial grounds for believing that, as a necessary and foreseeable consequence of him availing himself of the right to enter and reside in The Bahamas, there would be a real risk that he [would] suffer significant harm there” (at [72]-[73]).
The Tribunal outlined the “incidents” that the applicants claimed took place in The Bahamas and detailed relevant evidence in that regard (at [74]-[84].
The Tribunal ultimately found as follows:
85.Noting the report from the treating hospital provided post-hearing, the Tribunal accepts that [the first applicant] was the victim of a shooting in mid-2011 when a man robbed the water sales outlet he owned. The Tribunal accepts that he was lucky not to have been killed and this incident was very traumatic for [the first applicant] and his family. The Tribunal accepts that the gunman may have made a remark to the effect that foreigners deserve to die before he shot [the first applicant]. The Tribunal does not consider, however, that there is any evidence that [the first applicant] was sought out/targeted by the gunman because he was a foreigner, or that the gunman or anyone associated with him has pursued or targeted [the first applicant] since the incident.
86.The Tribunal finds the evidence in relation to the claimed home invasion in June 2012 to be more problematic. There are significant inconsistencies between the account given in [the first applicant’s] statutory declaration of 26 November 2016, the letter of 25 November 2016 from the Royal Bahamas Police, and the oral evidence at the hearing by [the second applicant]. In his statutory declaration [the first applicant] indicated there were multiple intruders and that the gunman tried to rape his wife but luckily he abandoned the idea when the others completed the burglary and they had to leave. He made no mention of the intruder(s) asking where he was or stating that he is a foreigner and foreigners like to earn money. The police report indicates that a single male entered the residence demanding cash and [the second applicant] handed over $400 to her assailant who then sexually assaulted her before making good his escape. As noted above, at the hearing [the second applicant] indicated there was only one intruder, who commented that her husband is a foreigner and foreigners like to make money, and when she reiterated there is no money, the intruder threatened to rape her daughter, who was only 12 at the time. [The second applicant’s] daughter commented that she was touched inappropriately by the intruder. The Tribunal does not consider the applicants provided a plausible explanation for these significant inconsistencies, particularly between [the second applicant’s] account and [the first applicant’s] statutory declaration. While the Tribunal accepts that a home invasion occurred where [the second applicant’s] daughter was touched inappropriately, and accepts the intruder may have asked [the second applicant] where her husband was (to ascertain whether a husband might return home at any time), the Tribunal does not accept that he knew a foreigner/[the first applicant] lived at the residence and targeted it specifically because of that reason). In reaching this conclusion the Tribunal gives significant weight to the fact that [the first applicant] continued to reside at the same residence for another two and a half years after this incident without experiencing any similar incidents or contact from this person or other persons seeking him out because he is was a foreigner, entrepreneur or business owner.
87.In his statutory declaration [the first applicant] described a third incident sometime in 2013 where he claims he confronted someone breaking into his car. He wrote that in the heat of a verbal confrontation, the man said to him ‘you came by plane you will leave in a bag’. As noted above, at the hearing [the first applicant] indicated that not only was there a verbal confrontation, but the man had a gun in his hand and commented that he had killed two people ‘like him’ before and had been to jail and had been on death row but had been released. The Tribunal finds it difficult to accept that if this was the case [the first applicant] would not have included these important details in his statutory declaration. While he commented on several occasions that his statement just summarised his claims rather than provided all the details, the Tribunal expects significant and material factors would have been mentioned in a supporting statutory declaration. It is also difficult to accept that such a person would have been deterred by the presence of onlookers and just run away during a heated verbal confrontation, or that the Royal Bahamas police would not have included the incident, which [the first applicant] indicated he reported to the police immediately, in their letter of 25 November 2016. For these reasons, the Tribunal does not accept that this incident actually occurred.
88.Considering the available evidence, the Tribunal concludes that the applicant has embellished his claims to support the view that he was targeted as a foreigner and can’t return to The Bahamas because of that. The Tribunal does not accept that [the first applicant] or his family were ever targeted for harm specifically because [the first applicant] was a foreigner in The Bahamas and/or because he was entrepreneurial and owned businesses.
89.In reaching this conclusion the Tribunal also gives weight to the fact that [the first applicant] continued to reside in the same house in The Bahamas for two and a half years after his wife and children departed for Australia in June 2012. The Tribunal considers that if [the first applicant] felt he was being targeted for serious harm because of his status as a foreigner in The Bahamas and/or because he was entrepreneurial and owned businesses, he would not have remained there noting, as discussed at the hearing, he could have travelled to the USA, which he and his family had visited several times and where he had relatives, and sought protection there. In relation to the applicants’ comments that they were unaware they could seek protection in the USA, the Tribunal considers that if [the first applicant] genuinely feared for his safety in The Bahamas he would have been highly motivated to find out about options available to him, including seeking protection in the USA.
90.The Tribunal has also considered the representative’s statement that, because of attacks on foreigners in The Bahamas, it was difficult for the applicant to live, move around and interact freely in The Bahamas as he was afraid to talk to people for fear his accent would identify him as a foreigner. The Tribunal does not accept this was the case, noting that the applicant lived in The Bahamas for approximately 17 years from 1998 to January 2015; worked there and opened businesses; has not reported any incidents prior to the shooting incident in June 2011; the Tribunal's finding that the incidents it accepts occurred do not support a finding [the first applicant] was specifically targeted as a foreigner; and he remained in the Bahamas for a further two and a half years after his family departed in June 2012, when he could have gone to the USA, where he had family, and sought protection there.
The Tribunal continued as follows in relation to the claim that foreigners are targeted in The Bahamas:
92.The Tribunal has considered the references/material provided by the representative in support of the claim that foreigners are targeted in The Bahamas but does not find it persuasive. As discussed further below, country information indicates that there is a relatively high homicide rate in The Bahamas and the Tribunal considers it is to be expected that some foreigners would be among the victims, noting also that The Bahamas is a major tourist destination. While the Tribunal accepts that there have been some incidents where foreigners have been killed in The Bahamas and some tourists have been targeted for crime, the Tribunal finds that the cited material does not indicate that there is a real chance that the applicant, as a permanent resident of The Bahamas, would be targeted for serious harm because he is a foreign national and a Nigerian, should he return.
93.In reaching this conclusion the Tribunal gave no weight to the failure of Bahamians to support a referendum proposing that foreign men who marry Bahamian woman be eligible for citizenship, as evidence of hatred of foreigners. The Tribunal considers this is purely speculative and the reasons may have had to do with others concerns, including that the proposal may have led to an increase in exploitative or fake relationships solely for the purposes of achieving Bahamian citizenship.
94.The Tribunal concludes, therefore, that there is not a real chance [the first applicant] would suffer persecution involving serious harm, due to his nationality and/and race, and/or being an entrepreneur/businessman, or any other of the reasons enumerated in s. 5J(1)(a) of the Act, should he return to The Bahamas, now or in the reasonably foreseeable future.
Having found that the first applicant did not meet the refugee criterion, the Tribunal considered whether there were “substantial ground for believing that, as a necessary and foreseeable consequence of [the first applicant] availing himself of the right in s 36(3) [of the Act], there would be a real risk of him suffering significant harm in The Bahamas”. The Tribunal set out the relevant case law and legislative provisions in that regard (at [95]-[97]) and ultimately determined as follows:
98,Considering [the first applicant’s] circumstances individually and cumulatively, and having regard to its findings of fact above, the Tribunal also finds that there is not a real risk that [the first applicant] will suffer significant harm from any person, group, authority or organisation, as a necessary and foreseeable consequence of being him returning or being returned from Australia to The Bahamas.
The Tribunal considered the risk that the first applicant might suffer significant harm “due to generalised violence in The Bahamas” and set out some relevant country information in that regard (at [99]-[102]). The Tribunal ultimately determined as follows:
103.In any event, as the Tribunal does not accept that [the first applicant] will be specifically targeted for violent crime because of his race and/or nationality and/or entrepreneurial nature/status as a business owner, the Tribunal considers the risk he faces is ‘one faced by the population generally and is not faced by the applicant personally’, The Tribunal finds, therefore, in accordance with s.36(2B)(c) of the Act, that there is taken not to be a real risk that [the first applicant] will suffer significant harm in The Bahamas.
The Tribunal ultimately affirmed the delegate’s decision refusing to grant the applicants the visa (at [112]).
RELEVANT LEGISLATION
Before considering the applicants’ ground of review, it is useful to first set out the legislative provisions relevant to this matter.
The criteria relevant to protection visas are explained in s 36 of the Act. Section 36 of the Act relevantly provides as follows:
36 Protection visas—criteria provided for by this Act
…
(2) A criterion for a protection visa is that the applicant for the visa is:
(a)a non‑citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa)a non‑citizen in Australia (other than a non‑citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non‑citizen being removed from Australia to a receiving country, there is a real risk that the non‑citizen will suffer significant harm; or
…
(2A) A non‑citizen will suffer significant harm if:
(a)the non‑citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non‑citizen; or
(c) the non‑citizen will be subjected to torture; or
(d)the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)the non‑citizen will be subjected to degrading treatment or punishment.
…
Protection obligations
(3)Australia is taken not to have protection obligations in respect of a non‑citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non‑citizen is a national.
(4)However, subsection (3) does not apply in relation to a country in respect of which:
(a)the non‑citizen has a well‑founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; or
(b)the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non‑citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non‑citizen will suffer significant harm in relation to the country.
…
PARTIES’ SUBMISSIONS
Applicants’ written submissions
Relevantly, the applicants’ written submissions provide as follows (at [15]-[21]):
(a)the findings of fact made by the Tribunal are not challenged and were sufficient to dispose of any claim that the first applicant had a well-founded fear of persecution in The Bahamas for the purposes of s 36(4)(a) of the Act. The issue is how the Tribunal then dealt with the “complementary protection” test for the purposes of s 36(4)(b) of the Act;
(b)at [95]-[97] of its reasons (CB 313), the Tribunal confirmed that it was turning its mind to s 36(4)(b) of the Act, noted that the real risk test is the same as the real chance test and set out the definition of significant harm. At [98], it then concluded, by reference to its previous findings of fact and the first applicant’s circumstances ‘individually and cumulatively’, that s 36(4)(b) of the Act did not apply;
(c)while it is accepted that if the first applicant’s refugee and complementary protection claims were the same, the complementary protection claims may be capable of being disposed of in that fashion and within a single paragraph. However, there is at least one aspect of the first applicant’s claims for protection with respect to The Bahamas which was different when considered through the lens of complementary protection and that is whether the first applicant is at greater risk of significant harm in The Bahamas than the general population due to his profile as a foreigner and entrepreneur/business owner;
(d)the Tribunal found that the first applicant was not targeted for harm specifically due to being a foreigner or an entrepreneur/business owner. Despite the first and second applicants making claims on the subject, the Tribunal did not make any findings about whether there was any level of antipathy generally towards those categories of person in The Bahamas – presumably because it did not need to do so to dispose of the first applicant’s refugee claims;
(e)while the first applicant was not specifically targeted when he was the subject of an attempted murder in 2011, it was accepted by the Tribunal that:
(i)he was running a business at the time; and
(ii)a comment about foreigners deserving to die (or similar) was made;
(f)as the first applicant’s former representative submitted, had he not been a foreigner there is a likelihood that he would have been spared being shot (CB 126);
(g)the Tribunal made findings about the homicide rate across the whole of The Bahamas and observed that the risk of being murdered applied to the whole population generally (CB 314, [100]-[103]). The vice in that reasoning is that what was being submitted was that the first applicant fell within a category of persons (entrepreneurial foreigners who run small businesses) which leaves him exposed to a greater risk of harm, including murder, than the general population due to widespread discriminatory attitudes in The Bahamas. It is not an answer to that claim to refer to statistics which apply across the entire population of The Bahamas; and
(h)in a society with a high crime rate, it is possible, as was submitted and as was experienced by the first applicant, that him being the subject of an opportunistic crime may result in markedly worse outcomes for him than an ordinary member of the Bahamian population. This was not considered by the Tribunal, either as the subject of an active intellectual process or at all. Had the Tribunal considered this claim, it could realistically have resulted in a different outcome on the review and, therefore, any failure to consider the claim constitutes jurisdictional error.
Minister’s written submissions
The Minister’s written submissions relevantly provide (at [13]-[23]):
(a)the first respondent submits that ground one does not establish jurisdictional error;
(b)the applicants submit that the Tribunal could not rely on its findings in relation to the refugee claims to dismiss the complementary protection claims. This is said to be because the first applicant claimed to face a higher risk of harm during opportunistic crimes in The Bahamas because he was a foreigner and the reference to the homicide rate generally did not reflect the first applicant’s circumstances;
(c)the applicants’ submission should not be accepted;
(d)the Tribunal referred to the applicants’ claim that The Bahamas was xenophobic and that the attacks on the first applicant were racially motivated;
(e)the Tribunal also referred to country information provided by the applicants in relation to violence against foreigners. The Tribunal’s reasons indicate that that information concerned attacks on tourists and the first respondent notes that at least one concerned an attack on an American motivated by homophobia, rather than xenophobia;
(f)the Tribunal also had regard to the first applicant’s evidence that, generally, victims of crime are killed to stop them from giving evidence. This undermined the claim that the first applicant was at extra risk because he is a foreigner and that he may have been spared if he was Bahamian;
(g)further, it was central to the Tribunal’s reasoning that:
(i)the first applicant had only been the victim of one violent crime in 17 years;
(ii)the first applicant had stayed in The Bahamas after the alleged home invasion which the second applicant claimed was racially motivated;
(iii)the applicants had delayed their protection claims; and
(iv)whilst the homicide rate was high relative to other countries, there was still only a remote chance of being murdered;
(h)in this context the Tribunal concluded that the first applicant had not been targeted because of his race or entrepreneurship.
(i)in light of its reasons and that finding it is clear that the Tribunal did not accept that there was any real risk or chance of the first applicant suffering harm because he was a foreigner and/or entrepreneur in The Bahamas (whether because he was being specifically targeted or otherwise);
(j)the Tribunal’s conclusion must also be considered in light of the way the claim was presented by the applicants. The applicants’ agent did submit that the first applicant ‘may have been spared’ by the gunman in 2011 if he was Bahamian and it was submitted that The Bahamas was xenophobic. However, there was very little material (if any) that specifically addressed the issue of foreign business owners being at greater risk during opportunistic crime (such as robberies or burglaries). Accordingly, it was open to the Tribunal to refer to the general homicide rate in determining the matter. In any event, the applicants’ own submissions suggested that murders during opportunistic crime were motivated by a desire to prevent victims from testifying not because they were foreign;
(k)finally, the Tribunal’s conclusion that the first applicant was not targeted for being a foreigner and/or entrepreneur encompasses a finding that he had not experienced worse outcomes during opportunistic crimes on that basis and did not face a risk of that occurring in the future;
(l)even if the Court were to accept that the Tribunal failed to consider the applicants’ claim the first respondent submits that such an error would not be material. This is because:
(i)the Tribunal did not accept large parts of the applicants’ claims and the only incident that was accepted was the shooting in 2011;
(ii)the Tribunal placed weight on the fact that the first applicant had been in The Bahamas for 17 years, had not left immediately after the alleged 2012 incident and had delayed seeking protection;
(iii)the crime rate, whilst relatively high in comparison to other countries, was still statistically very low and the risk of being a victim of any crime was very low;
(iv)there was no material to suggest what the supposed increased risk to the first applicant was in light of his status as a foreigner and/or entrepreneur or whether it would mean that the general crime rate was not an appropriate guide for assessing his risk;
(v)the applicants’ own submissions undermined the proposition that he would be at particular risk because they claimed that people were killed during opportunistic crime to stop them from testifying; and
(vi)the Tribunal concluded that the first applicant had not been targeted and had not feared being targeted during his long residence in The Bahamas;
(m)in those circumstances, the first respondent submits that even if the Tribunal were to have considered the claim in the manner submitted by the applicants, then there was no realistic chance of a different outcome.
Applicants’ oral submissions
In oral submissions before this Court, Mr Glenister (on behalf of the applicants) submitted that:
(a)with any refugee claim, the harm has to be connected to a Convention reason. The Tribunal here determined that the first applicant was not targeted on the basis that he was a foreigner or entrepreneur in that sense;
(b)with complementary protection what is required is slightly different. Although many of the types of significant harm defined in the Act require some sort of intention, being arbitrarily deprived of your life does not;
(c)the thrust of the applicants’ case is that, when the Tribunal effectively “wrapped up its reasoning” and said “I’ve considered everything individually and cumulatively and it doesn’t amount to a real risk of significant harm” (at [98] of its written reasons), it did that either having overlooked the fact that the arbitrary deprivation of life did not require specific targeting as such or it did not engage in an active intellectual process with that claim;
(d)there were two key parts of the applicants’ evidence that were before the Tribunal that the applicants rely on here. The first is the first applicant was shot in June 2011, which clearly could have resulted in the arbitrary deprivation of his life. It was accepted by the Tribunal that the first applicant was shot and that a xenophobic comment was made by the gunman. The other evidence that was repeatedly put by both applicants was that there was, effectively, “racist discrimination against foreigners” which also extends to foreign business owners seen to be “doing well”;
(e)the Tribunal has not distinguished between harm that is targeted and harm that is not necessarily targeted. That is, as the applicants’ representative put it, if the first applicant was not a foreigner, he may not have been shot in June 2011 and that was the claim that was before the Tribunal;
(f)the Minister (at [17] in written submissions filed on 6 April 2023) states that:
The Tribunal also had regard to the first applicant’s evidence that generally victims of crime would be killed to stop them from giving evidence. This undermined the claim that he was at extra risk because he is a foreigner and that he may have been spared if he was Bahamian.
(g)the Minister in that submission is referencing evidence given by way of written submissions given to the Tribunal by the applicants’ representative (CB 210 at [11]) where it is put that:
The applicant was afraid to pursue the matter as it was pretty common for perpetrators of crime to kill victims or witnesses to conceal vital evidence of the crime.
(h)that was a representation put after the fact of the harm being suffered and after the merits review proceeding had been instituted and should not be interpreted as saying that that is the motivation behind those types of shootings more generally. Further, to say that it is a common reason does not exclude other motivations for violence in any event. On that basis, that evidence (in the applicants’ submissions to the Tribunal) does not go against the applicants’ claim. Rather, it is an observation about what might have happened if the first applicant had pursued the perpetrator of the crime through the Courts;
(i)it was also not a submission that that is why that particular shooting happened. It was put that it was a racially motivated attack and that, once the police had investigated, the first applicant was concerned that the perpetrator might “come back to try to silence him”; and
(j)in terms of materiality (as raised by the Minister in written submissions), if the Court were to find that there was a claim that was “effectively overlooked”, it would be difficult to see how that could not be material to the outcome of the review.
Minister’s oral submissions
In oral submissions before this Court, Mr Lettenmaier (on behalf of the Minister) submitted as follows:
(a)the Tribunal did give consideration to the general attitude towards foreigners. It referred to the submission regarding the first applicant’s claim that it was difficult for him to live, move around and interact freely because he was afraid he would be identified as a foreigner (see [90] in its written reasons);
(b)it is not the case that the Tribunal simply disregarded or ignored the issue of xenophobic attitudes in The Bahamas and the Tribunal’s decision and its consideration must be looked at in light of the case that was put by the applicant. In relation to the issue of the risk of worse outcomes during crime, the applicants’ case in that regard was very vague and there was little corroborative evidence. The applicants’ representative made a submission that the first applicant may have been spared if he was not a foreigner, however, there was no evidence (other than news articles concerning a tax on tourists and wealthy foreigners) to support that claim;
(c)while, arguably, the Tribunal “could have been more explicit”, it is not the case that it misidentified the claim. The Tribunal clearly set out all of the applicants’ claims (at [16] in its reasons) and set out in some details the applicants’ evidence (at [17]-[18], [21], [27], [70] and [74]-[84] in its reasons) and gave detailed findings about the first applicant being targeted;
(d)in relation to the applicants’ submission that a finding that someone has not been targeted may not be the same as whether someone is at risk more generally of a worse outcome, the Tribunal’s findings have encompassed that issue in its consideration (noting that the Tribunal did consider the general attitude towards foreigners in The Bahamas and only found that one of the attacks may have been motivated by xenophobia and appreciating the distinction between a finding that something did happen and a finding that something may have happened);
(e)while the Tribunal could have been more precise, it did identify the first applicant’s claim and made findings in relation to the first applicant’s risk of harm of racially motivated attacks in The Bahamas;
(f)in relation to the consideration of the generalised risk of harm, the Tribunal made a finding that the general homicide rate is applicable to the first applicant because he is not being racially targeted (see [99]-[103] in the Tribunal’s reasons). Having considered whether the first applicant was subject to racially motivated attacks in the preceding paragraphs, the Tribunal then finds that, on that basis, it can apply the risk of harm faced by the general population in relation to homicide and violent crime;
(g)with respect to the question of materiality, the Minister considers that, in this case, any error on the part of the Tribunal (on the basis of failing to consider that the first applicant may experience a markedly worse outcome in an opportunistic crime than an ordinary citizen of The Bahamas) could not be material. That is so because the Tribunal found that the risk of being subjected to an opportunistic crime is remote (at [102] in its reasons). That being the case, the starting point of the reasoning in the applicants’ case is first being the victim of an opportunistic crime and the Tribunal found that the risk of that happening was remote;
(h)if the first applicant were the victim of a crime, the contention appears to be that in that moment, the first applicant would be at a greater risk in that moment than any other ordinary citizen of The Bahamas of experiencing a worse outcome. The starting point of that reasoning, however, is that the risk of being the subject of generalised violence or crime is remote. It therefore does not matter whether the first applicant was going to have a worse outcome or not; and
(i)the claim that was put in relation to the general risk of crime in this matter was very vague and there was no real material before the Tribunal to suggest that the first applicant faced an increased level of risk than another Bahamian citizen because of his status as a foreigner or an entrepreneur. It may very well be common sense to say that, however, “it is not for the Tribunal to act on speculation”. The only information before the Tribunal was the written submissions and news articles (which were not of particular relevance) relating predominantly to tourists or very wealthy foreigners.
Applicants’ further oral submission
In oral submissions in reply before this Court, Mr Glenister (on behalf of the applicants) submitted that:
(a)the statistical analysis may well be correct (and is not challenged). However, it is clearly a general analysis of data taken over a population. It is not data specific to the first applicant’s circumstances as a foreigner or a business owner;
(b)a business owner or a person with a shopfront (as the first applicant was) obviously engages more with the public than someone who rarely leaves his or her house. It does not follow then that the statistics provide a basis to “knock out the claim”. Further, the Tribunal really only referred to the statistics in the context of determining whether there was an issue with generalised violence (which is a separate statutory test than that applicable here);
(c)while it is accepted that the first applicant’s claim was not put as precisely as it has been in the application before this Court, that is not unusual and the claim was squarely put that the first applicant was at risk due to racially motivated violence;
(d)the Tribunal made findings of fact on the basis of those claims on the material before it and decided that the first applicant had not been specifically targeted; and
(e)there still remained the claim (as was expressly put by the first applicant in his representations) that he would be at risk of a worse outcome when it came to that sort of general or incidental violence because of the fact that he was a business owner and a foreigner.
CONSIDERATION
The applicants’ core concern relates to whether the Tribunal overlooked or did not properly engage with the first applicant’s claim that he was at a greater risk of significant harm than the general population in The Bahamas on the basis that he is a foreigner and an entrepreneur/business owner.
As set out above, s 36 of the Act deals with protection visas.
Section 36(2)(a) of the Act contains what is known as the refugee criterion.
The High Court in DQU16 v Minister for Home Affairs [2021] HCA 10 (“DQU16”) set out the relevant test in determining whether an applicant has a “well-founded fear of persecution” as required by s 36(2)(a) of the Act and relevantly provides as follows (footnotes omitted):
10.Section 36(2)(a) was amended in 2014. At the same time, ss 5H and 5J were inserted: s 5H provides a definition of “refugee” and s 5J provides a definition of "well‑founded fear of persecution", largely codifying the definition of "refugee" under the Convention. The question that s 36(2)(a) asks is whether a person is owed protection obligations because they are a refugee. The statutory definition of “refugee” in s 5H directs attention to whether a person is unable or unwilling to avail himself or herself of the protection of his or her country of nationality, or unable or unwilling to return to the country of his or her former habitual residence, owing to a well-founded fear of persecution for one of the reasons set out in s 5J(1) (which in turn correspond to the five grounds for refugee status listed in Art 1A(2) of the Convention: race, religion, nationality, membership of a particular social group or political opinion). A fear of persecution will be “well‑founded” if there is a “real chance” that the person will suffer the feared persecution if returned. A “real chance” is a prospect that is not “remote” or “far‑fetched”: it does not require a likelihood of persecution on the balance of probabilities…
The criterion set out in s 36(2)(aa) of the Act is referred to as the “complementary protection” criterion.
The High Court in DQU16 explained the statutory task under s 36(2)(aa) of the Act as follows (footnotes omitted):
11.Section 36(2)(aa), which implemented the regime for “complementary protection” and with which this appeal is concerned, was inserted into the Migration Act to provide an additional basis to s 36(2)(a) for the grant of a protection visa…
12.Section 36(2)(aa) applies where the applicant does not fall within s 36(2)(a) of the Act and it engages some, but not all, of Australia's non‑refoulement obligations under the International Covenant on Civil and Political Rights (“the ICCPR”) and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“the CAT”). The provision was introduced to “allow all claims by visa applicants that may engage Australia’s non-refoulement obligations under the [identified] human rights instruments to be considered under a single protection visa application process, with access to the same transparent, reviewable and procedurally robust decision-making framework ... available to applicants who make claims that may engage Australia's obligations under the ... Convention”. Importantly, however, s 36(2)(aa) only relevantly captures Australia’s non-refoulement obligations under the ICCPR and the CAT, by which Australia agreed not to return a non‑citizen to a receiving country where they would be subjected to the death penalty, arbitrarily deprived of their life or subjected to torture or cruel, inhuman or degrading treatment or punishment: it does not incorporate into domestic law any of the other protections contained within the ICCPR as a basis upon which a protection visa may be granted.
13.The question s 36(2)(aa) asks is whether the decision‑maker has substantial grounds for believing that there is a real risk that a person will suffer significant harm, as defined in s 36(2A) and subject to the matters in s 36(2B) and (2C), as a "necessary and foreseeable consequence" of the person’s return to a receiving country. The inquiry is prospective. There are three elements that must be satisfied for the prospective harm to satisfy s 36(2)(aa): (1) the decision‑maker must have substantial grounds for believing (2) that, as a necessary and foreseeable consequence of the non‑citizen being removed from Australia to a receiving country, (3) there is a real risk that the non‑citizen will suffer significant harm.
14.The circumstances constituting “significant harm” are exhaustively identified in s 36(2A) in the following terms:
“[I]f:
(a)the non‑citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non‑citizen; or
(c) the non‑citizen will be subjected to torture; or
(d)the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)the non‑citizen will be subjected to degrading treatment or punishment.”
The High Court in DQU16 also sets out the differences in the questions asked by ss 36(2)(a) and 36(2)(aa) of the Act, as follows (footnotes omitted):
18.As is self-evident, the text of s 36(2)(a) and s 36(2)(aa) is different and therefore, unsurprisingly, the statutory questions are different: they are not interchangeable. And they are different because the purpose of the inquiry under each provision is different. Determining whether a person has a well‑founded fear of persecution for a Convention reason under s 36(2)(a) is a fundamentally different inquiry to the question in s 36(2)(aa). Section 36(2)(a) seeks to define when a protection visa will be granted to a person seeking refuge. Under s 36(2)(aa), the question is whether a person can be returned to a particular State: and the provision is formulated by reference to the consequences of a non‑citizen’s removal to a particular State.
19.… The statutory question, namely whether a person can be removed to a particular State without suffering identified forms of harm, is framed by reference to the risk of a non‑citizen suffering significant and specified harm as a necessary and foreseeable consequence of removal to a receiving country. Assessing the risk that a non‑citizen will suffer significant harm within s 36(2A) necessarily involves an assessment of the individual circumstances of the non‑citizen and the basis on which the non‑citizen claims that those circumstances give rise to the requisite degree of risk as a necessary and foreseeable consequence of removal to a receiving country.
…
21.In relation to the harm at which s 36(2)(aa) is directed, two further aspects of the provision are of particular significance. The definition of “significant harm” in s 36(2A) is not formulated by reference to a person’s inherent or immutable beliefs, attributes, characteristics or membership of a particular group. And assessment of the risk of that harm under s 36(2)(aa) does not involve finding a nexus between the harm feared by the non‑citizen and those beliefs, attributes or characteristics, or the non-citizen’s membership of a particular group. The provision only requires an assessment of the “necessary and foreseeable consequence[s]” of a person’s return to a receiving country. It is a corollary of the statutory test in s 36(2)(aa) being framed in those terms that where a risk of “significant harm” can be avoided by modification of behaviour, such modification does not involve a manifestation of the very harm at which the criterion in s 36(2)(aa) is directed.
22.Of course, in some, perhaps many, cases in which the criterion in s 36(2)(aa) is satisfied, the basis for the risk of significant harm will be inherent to, or an immutable characteristic of, the non‑citizen and modification of conduct may not be possible. The bases for the claimed risk of significant harm are not prescribed but may include, for example, the fact that an applicant may have already committed an offence for which they will receive the death penalty if returned to a receiving country…
The Court notes that, as set out above, s 36(3) of the Act is a deeming provision which provides that Australia is taken to not have protection obligations in respect of an applicant who has not taken “all possible steps to avail himself or herself of a right to enter and reside in” another country (apart from Australia). On that basis, an applicant may be found not to be a person in respect of whom Australia has protection obligations, even if they may otherwise meet the criteria set out in ss 36(2)(a) or 36(2)(aa) of the Act.
There are exceptions to the deeming provision in s 36(3) of the Act. Those exceptions are contained in ss 36(4), 36(5) and 36(5A) of the Act.
Relevant to this matter is s 36(4) of the Act. In this regard, the Court notes the comments made by Judge Driver in SZTPK v Minister For Immigration & Anor [2014] FCCA 2259 as follows (footnotes omitted):
37.Sub-section 36(4) is an exception to the deeming provision. In other words, even if a person has not taken the steps set out in s.36(3), he or she may, nonetheless, be owed protection obligations if the matters set out in ss.36(4)(a) or (b) were satisfied. Paragraph 36(4)(b) uses the language “real risk that the non-citizen will suffer significant harm”. That expression appears in s.36(2)(aa) and, subject to the definite article being replaced with the indefinite article, the chapeau to s.36(2B). There is no reason why the meaning of that expression is not the same as the meaning given to the same expression in s.36(2)(aa). Indeed, there is nothing in s.36(4)(b) to suggest otherwise. If that is so, then s.36(2B) conditions the applicant’s entitlement to Australia’s protection obligations under s.36(4)(b) in the same way that it conditions his entitlement to those obligations under s.36(2)(aa). A useful way to test this proposition would be to ask whether the applicant accepts that the definition of “significant harm” in s.36(2A) applies to s.36(4)(b), which uses that expression. If so, then there is no good reason, as a matter of statutory construction, why s.36(2B) ought not to apply to s.36(4)(b).
Hence, the test when considering whether s 36(4)(b) of the Act applies to an applicant is the same as the test that applies when considering whether s 36(2)(aa) of the Act applies.
The first applicant in this matter is a national of Nigeria who moved to The Bahamas in 1998 (CB 27).
The Tribunal in this matter accepted that the first applicant was owed protection as a refugee in respect of his home country of Nigeria (at [67]).
The Tribunal also accepted that the first applicant was a permanent resident of The Bahamas (at [72]).
The issue that the Tribunal was then required to consider was whether the first applicant was excluded from Australia’s protection under s 36(3) of the Act because he had not availed himself of his right to enter and reside in The Bahamas or whether s 36(4) of the Act applied to the first applicant.
As outlined above, the relevant legislative provisions set out in ss 36(3) and 36(4) of the Act provide as follows:
Protection obligations
(3)Australia is taken not to have protection obligations in respect of a non‑citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non‑citizen is a national.
(4)However, subsection (3) does not apply in relation to a country in respect of which:
(a)the non‑citizen has a well‑founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; or
(b)the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non‑citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non‑citizen will suffer significant harm in relation to the country.
…
Essentially, the Tribunal was required to consider whether the first applicant had a well-founded fear of persecution in The Bahamas as required by s 36(4)(a) of the Act and whether the first applicant satisfied the “complementary protection” test as required by s 36(4)(b) of the Act.
The parties appear to be in agreement that the Tribunal made factual findings (which are not challenged) effectively disposing of any claim that the first applicant had a well-founded fear of persecution for the purpose of s 36(4)(a) of the Act.
Having done so, the Tribunal went on to consider s 36(4)(b) of the Act. In this regard, the Tribunal correctly identified that the “real risk” test imposes the same standard as the “real chance” test provided for under the refugee criteria (at [96]): Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33 at [246], [297] and [342].
The Tribunal then found as follows:
98. Considering [the first applicant’s] circumstances individually and cumulatively, and having regard to its findings of fact above, the Tribunal also finds that there is not a real risk that [the first applicant] will suffer significant harm from any person, group, authority or organisation, as a necessary and foreseeable consequence of being him returning or being returned from Australia to The Bahamas.
It is at this stage that the parties differ in relation to what the Tribunal did and/or should have done.
The applicants accept that where the essential claims and facts being relied upon by an applicant are the same for Convention purposes and complementary protection purposes, the Tribunal is entitled to rely on its Convention findings in assessing whether the there is a real chance of significant harm: MZYXS v Minister for Immigration and Citizenship [2013] FCA 614 at 31; SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774 at [55]-[56]. However, the applicants submit that “at least one aspect of the first applicant’s claims for protection … were different when considered through the lens of complementary protection”. In particular, the applicants stress the need for the Tribunal to have assessed whether the first applicant would be at greater risk of significant harm in The Bahamas than the general population due to his profile as a foreigner and an entrepreneur/business owner.
As set out above, the applicants acknowledge that the Tribunal made findings that the first applicant was not targeted for harm specifically due to being a foreigner or an entrepreneur. However, despite both applicants making claims on the subject, the Tribunal failed to make any findings about whether there was “any level of antipathy … towards those categories of person” (see [17]-[18] of the written submissions filed on behalf of the applicants on 23 March 2023).
The Minister in turn submits that the Tribunal considered the general attitude towards foreigners and made particular reference to the first applicant’s claim that it was difficult for him to move around and interact freely due to fear of being identified as foreigner (at [90] in its written reasons). In oral submissions before this Court, counsel for the Minister conceded that the Tribunal “could have been more explicit” in its findings but, in the Minister’s view, despite this apparent lack of clarity, the Tribunal did not misidentify the claim. The Minister contends that the Tribunal identified the first applicant’s claim and, in relation to the generalised risk of harm, the Tribunal made a finding that the general homicide rate was applicable to the first applicant because he was not being racially targeted.
The Court disagrees with the Minister’s submissions in this regard. Importantly, the Court does not consider the Tribunal’s “analysis” to be sufficient.
The statistical analysis referenced by the Tribunal considers general violence in The Bahamas. In particular, it references that there is a high crime rate (in comparison to the rest of the world), particularly in relation to murder and homicide. What that analysis does not include is an analysis specific to the first applicant’s circumstances – that is, a statistical analysis of the level of violence or crime involving either foreigners or business owners/entrepreneurs or whether those persons were at risk of a worse outcome on that basis.
As counsel for the applicants quite rightly submitted, an analysis of the level of crime relevant to the general population cannot be the basis to dismiss a claim that the first applicant is at a greater risk of violence (or a worse outcome on the basis of that violence) than that general population on the basis of his specific circumstances (which are not necessarily the same as the circumstances faced by the general population).
As set out in the applicants’ written submissions, in a country that has a higher than usual crime rate, it is entirely possible that the first applicant, if he were again the subject of opportunistic crime, may suffer a worse outcome than an “ordinary member of the general population”. The Tribunal did not take this into account or make any findings in this regard.
The Minister concedes that the Tribunal was “not as precise as it could have been”. That is true and, contextually problematic. Within the context of this matter and the applicants’ claims, precision was required in order to address the nuanced claim raised by the applicants when considered from a complementary protection perspective. If the Tribunal’s findings were not entirely clear to counsel for the Minister, they would not have been clear to applicants unfamiliar with the Australian migration system and from non-English speaking backgrounds. In refugee matters, clarity is paramount.
The Tribunal’s findings in relation to complementary protection in this matter did not clearly address the nuances of the first applicant’s claims in this regard.
To the extent that the Minister claims that this would not be material, the Court also disagrees.
Where materiality is in issue, an applicant will succeed if the outcome could have been different as a matter of reasonable conjecture: MZAPC v Minister for Immigration and Border Protection [2021] HCA 17 at [38]. That standard is undemanding: Nathanson v Minister for Home Affairs [2022] HCA 26 (“Nathanson”) at [33].
Here, it cannot be said that the Tribunal, having properly considered the first applicant’s claim (in a complementary protection context), would not have ultimately come to a different conclusion.
The Court considers the error made by the Tribunal (by failing to properly consider the first applicant’s complementary protection claim) to have been material to the outcome (applying the Nathanson threshold).
CONCLUSION
Each case is fact specific. Within the specific context of this matter, the Court agrees with Mr Glenister for the applicants that the Tribunal has failed to properly consider the first applicant’s complementary protection claim and has thus fallen into error.
The Tribunal’s decision will be set aside and the matter will be remitted to the Tribunal for reconsideration.
I certify that the preceding eighty-one (81) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 9 November 2023
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