BHW16 v Minister for Immigration
[2019] FCCA 1172
•7 May 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BHW16 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 1172 |
| Catchwords: MIGRATION – Application to review decision of Administrative Appeals Tribunal – whether failure by the Tribunal to give consideration to corroborative evidence constituting jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.36, 424A, 424AA |
| Cases cited: ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; (2016) 250 FCR 109 |
| Applicant: | BHW16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1367 of 2016 |
| Judgment of: | Judge Barnes |
| Hearing date: | 7 March 2018 |
| Date of Last Submission: | 26 April 2018 |
| Delivered at: | Sydney |
| Delivered on: | 7 May 2019 |
REPRESENTATION
| Applicant: | In Person (at the hearing) |
| Counsel for the Applicant: | Ms Yu (in relation to post-hearing submissions) |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1367 of 2016
| BHW16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for review of a decision of the Administrative Appeals Tribunal (the Tribunal) dated 6 May 2016. The Tribunal affirmed a decision of a delegate of the First Respondent not to grant the Applicant a protection visa.
The Applicant, a citizen of Bangladesh, entered Australia on 8 April 2014 as the holder of a visitor visa. On 2 May 2014 he applied for a protection visa.
In a statutory declaration in support of his application, the Applicant claimed to fear harm from fanatical Islamists in Bangladesh, in particular persons affiliated with Jamat-E-Islam, students from a particular Madrasa in Dhaka and persons affiliated with the religious cult associated with Delwar Hossain Sayedee. He claimed to fear harm because of his Hindu faith and his volunteer work with Jago Hindu, an organisation that worked for the rights of Hindus and to raise awareness about Hinduism in Bangladesh.
In particular, the Applicant claimed that there had been a number of incidents in 2013 and 2014 in which he and/or members of his family had been threatened or attacked.
The Applicant claimed that in about late September 2013 he received several telephone threats in which he was accused of being an enemy of Mohammed and Allah and of distributing cartoons of Mohammed. He claimed he was told that he would be killed. He believed these threats may have come from fanatical Islamists. He reported the threats to the local police but they took no action. He changed his mobile telephone number.
The Applicant claimed that in early October 2013 he attended a meeting of the Jago Hindu executive committee as a volunteer and that after leaving the meeting he was stopped by armed Islamic Huzur (fanatical Muslims) and students from the Madrasa and told to stop his activities with Jago Hindu. He was accused of being an enemy of Islam and Allah, of abusing Mohammed, kicking the Holy Quran and distributing cartoons of Mohammed. He claimed he was told that he would be killed if he stayed in Bangladesh. He claimed he fled and was rescued by people from nearby shops. He claimed that he informed the police and Jago Hindu about this incident.
The Applicant also claimed that in about mid-October 2013, after leaving another Jago Hindu meeting, he was attacked from behind by a small group of armed Islamic fanatics who called him an enemy of Islam and cut the haversack on his back. He fled and was rescued by people from a nearby store. He claimed that the next day he was told that some fanatical Muslims had visited his house while he was at work and had asked his housemate about him. He claimed he moved residence.
In addition, the Applicant claimed in late October 2013 his father had received a telephone call warning him that the Applicant would be killed and threatening to burn down his father’s house and shop. The next week people visited his father’s home looking for the Applicant. The Applicant claimed that after his father refused to disclose his whereabouts a building on the family property was ransacked and damaged and his father was told that if the Applicant was not located or voluntarily surrendered his shop would be burned down. The Applicant claimed that as there was a wave of demonstrations by Islamic fanatics at this time, the police were afraid to register his father’s complaint about the threat because they were concerned about the potential for retaliation. He claimed his parents moved to the next village where they were again located by fanatical Islamists and that they then moved to Dhaka.
The Applicant claimed that on about 22 November 2013 after he left work he noticed he was being stalked by some fanatical Islamists and that he avoided them by catching a bus to his home suburb. He claimed he then realised he was again being followed, this time by 4 or 5 Islamic fanatics who were calling out to him that they knew where he lived. He claimed that they followed him home, but he locked the gate. He claimed that he moved residence again.
In December 2013 the Applicant applied for a visitor visa to come to Australia. His application was refused.
The Applicant claimed that in January 2014 both he and his father received further threatening phone calls from the same telephone number. He was told he was “on death row” and that they were going to kill him or go after his family. His father was told that if he did not disclose the Applicant’s whereabouts, he would be killed too. The Applicant claimed he moved residence again and begun preparing another visitor visa application. He claimed he thought he may have been followed from his work by another group in February 2014, but was not sure if he was their target.
The Applicant claimed that because his initial visitor visa application had been refused as he “did not demonstrate sufficient ties to Bangladesh”, he had to demonstrate that he had “reasons” to return to Bangladesh to support the second application, despite it not being his intention to do so. He claimed that he obtained false documents, including a marriage certificate, so that he could claim in his March 2014 visitor visa application that he had a wife and child in Bangladesh. This was not true. He claimed he had never been married and had no children. He moved around until the visa was granted on 2 April 2014. He left Bangladesh on 7 April 2014.
The Applicant claimed that after he left Bangladesh his father continued to receive telephone threats that if they found the Applicant they would kill him.
In his statutory declaration the Applicant claimed to fear serious harm, including being attacked and possibly killed, from the Islamic fanatics who had constantly threatened him. He claimed that he had been threatened on numerous occasions by unknown Islamic fanatics and that his house was ransacked and vandalised by people looking for him (which apparently was a reference to events at the family home). He claimed he was afraid that because he was a Hindu the police and authorities, who did not protect minorities, would not protect him.
In support of his protection visa application the Applicant gave the Department copies of media reports and information about Muslim violence in 2013 and 2014 against Hindu temples, shops and homes in Bangladesh.
In addition, the Applicant provided a letter dated 8 April 2014 addressed “to whom it may concern” on letterhead of Jago Hindu from the Secretary of Jago Hindu. This letter is discussed further below.
On 3 December 2014, the application was refused by a delegate of the First Respondent.
The Applicant sought review by the Tribunal. He submitted a supporting statutory declaration from his former employer, Mr Ison, who was described as a long-term resident of Bangladesh who was aware of the social and political issues that minorities faced in Bangladesh. Mr Ison attested that he first met the Applicant, who was an honest and trusted employee, in 2010 and that he had no reason to doubt his claims about events in Bangladesh (which Mr Ison had been told about in Australia in 2015).
The Applicant also swore a statutory declaration on 24 March 2016 in which he addressed issues of concern to the delegate.
On 30 March 2016, the Applicant attended a hearing before the Tribunal. The only evidence before the court of what occurred at that hearing is the Tribunal’s account in its reasons for decision. The Applicant gave evidence, as did Mr Ison.
The Applicant’s representative also submitted pre- and post-hearing submissions addressing the Applicant’s claims and country information. The post-hearing submission representative submitted that a DFAT report referred to by the Tribunal at the hearing did not reflect current independent country information cited in the post-hearing submission and also that harm to Hindus was significantly underestimated given their exodus from Bangladesh. In a further statutory declaration the Applicant addressed issues raised in the Tribunal hearing. Among other things, he claimed that members of Jago Hindu were, and had been, targeted by Muslims for their role.
The Tribunal Decision
In its reason for decision the Tribunal set out the Applicant’s claims in support of his protection visa application. It noted that he had provided a further statutory declaration of 24 March 2016 in which he responded to the findings of the delegate and claimed that his protection visa application had been lodged with the help of a volunteer solicitor, that he was not represented as part of the interview process and that he did not receive proper advice.
The Tribunal noted aspects of this statutory declaration it considered particularly relevant. It observed that in response to findings of the delegate that there was no evidence to support claims that the perpetrators of harm were fanatical Muslims, the Applicant had claimed that the clothing of his attackers identified them as Muslims, that they made comments to him along the lines that he was an enemy of Islam and that there was no reason for the attacks against him and his family, other than his religion and voluntary work with Jago Hindu.
The Tribunal recorded that the Applicant also attested that he believed that the two incidents on about 22 November 2013 were related and that the people who followed him near his residence had been informed by the people who chased him near his work. He also claimed that he had relocated within Dhaka because he feared for his life. He explained that he provided false information in support of his second visitor visa application because of his fear for his life and that this was necessary to obtain the visa to enter Australia.
The Tribunal also referred to Mr Ison’s statutory declaration and the claims he made therein, including his evidence that he employed the Applicant in Bangladesh in his tourism business, that the Applicant told him of his experiences in Bangladesh after he saw him in Australia and that he had not been particularly aware of such issues when the incidents occurred in Bangladesh because at that time he had his own difficulties as an expatriate.
The Tribunal also referred to the representative’s pre- and post-hearing submissions and to the Applicant’s post hearing statutory declaration.
After referring to independent information, including that provided by the Applicant’s representative, the Tribunal stated that it had a number of “credibility difficulties” with the Applicant’s claims.
First, it found that that the Applicant had provided inconsistent accounts of where he was living when difficulties first arose and prior to his first claimed move in October 2013. It noted that in his post-hearing written response to information put to him at the hearing under s.424AA of the Migration Act 1958 (Cth) (the Act), the Applicant had acknowledged that he had provided incorrect information in the interview with the delegate as to which suburb he had moved to on the first occasion, although he claimed that he may not have paid attention to the date and assumed the delegate was referring to a different move and had a lapse of concentration. The Tribunal found that the recording of the interview did not accord with the Applicant’s claims about the accuracy of other evidence he gave the delegate in this respect.
The Tribunal also had regard to the fact that the Applicant’s claim in his written statement (his first statutory declaration) that Muslim militants had visited his house the day after an attack in mid-October and had spoken to his housemate was not consistent with his oral evidence at the Tribunal hearing that he had been living in staff quarters and that the Muslims had spoken to people in the office. The Tribunal was of the view that the earlier evidence gave quite a different impression.
Secondly, the Tribunal found that the Applicant’s oral evidence was internally inconsistent and lacking in candour about the periods he lived in staff quarters, in particular as to whether he had returned to those premises after moving out in October 2013.
The Tribunal also had regard to the fact that at the hearing Mr Ison had initially said that, as far as he understood, the Applicant had lived at the guesthouse staff quarters from 2010 until his departure from Bangladesh in 2014, and that he had not dealt with the Applicant on a day-to-day basis but saw him in the guesthouse. He assumed that the Applicant was living on the premises (as well as working there) but was preoccupied with his own personal difficulties, which began in late 2013.
The Tribunal stated that it did not doubt the credibility of Mr Ison’s account, but found it unusual that he would not at least have been subsequently told that the Applicant had to flee the guesthouse due to the difficulties he faced. The Tribunal was of the view it was likely that the Applicant would have informed Mr Ison if this had occurred and that the fact that Mr Ison initially believed that the Applicant had remained living at the staff guesthouse until his departure to Australia and had no subsequent knowledge to the contrary, served to reinforce the directly inconsistent evidence provided by the Applicant concerning periods he lived at the guesthouse, as well as other credibility and plausibility concerns outlined in the decision.
The Tribunal was of the view that these two areas of difficulty with the Applicant’s evidence were relevant because they went to the key issue of his claim that he had to relocate on multiple occasions within Dhaka due to threats he was facing. The Tribunal found that the Applicant’s failure to provide consistent evidence about where he was living prior to difficulties arising and in relation to subsequent relocations caused it to have doubts as to his claims that he needed to relocate. This in turn was said to undermine the credibility of the Applicant’s claims to have been “threatened in a systematic and sustained way” causing him to need to relocate.
The Tribunal found that a third problematic issue concerned Mr Ison’s written account (in his statutory declaration) indicating that he had no knowledge of the reason why the Applicant left his employment. He had stated that the Applicant was there one day and disappeared the next. The Tribunal had regard to the fact that in the hearing the Applicant had given evidence that the general manager of Mr Ison’s business had provided a document in relation to the Applicant’s employment for the purpose of his visitor visa application stating that he would be returning to that employment, although the manager in fact knew of his difficulties and that he was intending to seek protection in Australia. The Tribunal stated that when it asked Mr Ison whether his general manager would have shared information about the Applicant and the reasons for his departure, Mr Ison had said that he would not necessarily have done so.
Whilst the Tribunal was prepared to accept that this might be the case, it was of the view that if the Applicant had little day-to-day interaction with Mr Ison, that did not seem consistent with Mr Ison making a definitive statement that the Applicant was there one day and disappeared the next. The Tribunal found that Mr Ison’s knowledge of such a fact was not consistent with him having only a casual awareness of the Applicant’s activities or residence within his company premises. It was of the view that if Mr Ison had become aware of the Applicant’s disappearance, it might be expected that he would have asked his staff about the Applicant’s reasons for leaving and would have been told by the general manager that the Applicant had left to seek protection in Australia. The Tribunal considered that there was a “disconnect” in the evidence on this issue, which caused it to “discount” Mr Ison’s evidence as suggesting that the Applicant left his employment suddenly and without explanation.
Fourthly, the Tribunal had regard to what it described as the “inherent implausibility” of what was being claimed. It stated “[i]n the hearing the applicant confirmed his written claims that there had been a premeditated and sustained attempt by members of an anti-Hindu group to track down and harm” him and observed that the Applicant’s impression was that the various incidents involving himself and his family were linked.
The Tribunal found that these claims would suggest that members of “this group” had gone to extremely elaborate lengths to find the Applicant, obtaining his telephone number and that of his father to issue threats, including after they changed their numbers. It also had regard to the fact that, on the Applicant’s evidence, individuals from the group had travelled to the Applicant’s father’s village, some 225 kilometres from Dhaka, to threaten him to provide information about the whereabouts of his son and to ransack his property.
The Tribunal also referred to the fact that at the hearing the Applicant had confirmed his belief that the two groups that attacked him on about 22 November 2013 in different parts of Dhaka had operated in concert. The Tribunal observed that this would suggest that the first group, who spotted the Applicant near his workplace, had telephoned the other group, who were near his residence, and informed them that he was on his way.
The Tribunal stated at paragraph 47:
The Tribunal noted to the applicant in the hearing that these facts would suggest an almost military, or police-like, operation to track down the applicant. The Tribunal had concerns about the plausibility of such elaborate action being taken with respect to the applicant. The Tribunal indicated to the applicant that it found it difficult to accept that there would have been a need for this group to go to such efforts when, on the applicant’s own evidence in the hearing, he was working at [workplace] seven days a week from mid-afternoon to 11 to 12 pm in the evening up until his departure to Australia. On the applicant’s own evidence, members of the group seeking to harm the applicant had visited [his workplace] looking for him and had also followed him on another occasion near his workplace.
In addition, the Tribunal had regard to the fact that, as it had put to the Applicant, it did not make sense that all the claimed activities would have been taken to locate him, if he could easily have been found at his workplace. It also found his claimed multiple relocations difficult to reconcile with his daily return to the one location where he had previously lived and where he claimed he had been visited by anti-Hindu individuals seeking to target him.
The Tribunal considered the Applicant’s explanations, but found that it “struggles with the plausibility” of what was claimed in terms of the extraordinary effort Muslim militants had gone to track down the Applicant, particularly in light of the fact that he was readily available at his daily workplace. It found that the claim that the Applicant relocated on a number of occasions, yet returned daily to the same location where he previously lived and which militants had previously visited looking for him, lacked plausibility. It also observed that the Applicant’s regular second job from September 2013 meant he had a regular routine which should have provided yet another ready means for him to be tracked down by militant Muslims if they were making significant efforts to find him.
The Tribunal stated (at paragraph 56) that it:
… struggles to believe that the applicant, even if working as a member of a pro-Hindu group, would have been systematically targeted with the effort that is claimed. The applicant in hearing said that he was an ordinary member only of the Jago Hindu. The Tribunal is not satisfied that the applicant had a high level profile or was a leader such as to attract the sustained and co-ordinated efforts to locate him that are claimed.
While accepting that the Applicant and the group said to be targeting him may not have behaved rationally, the Tribunal nonetheless found that the Applicant’s claims were “implausible and fanciful”.
The Tribunal reiterated that the first two issues of concern went to inconsistencies as to where the Applicant was living and when and where he moved within Dhaka. It was of the view the Applicant had been inconsistent and untruthful in his various accounts and about his need to relocate for the reasons he claimed. It found that this strongly reinforced its credibility concerns based on plausibility. The Tribunal stated that while the third issue, identified as a problem “with the applicant’s evidence”, was relatively minor in its impact, it reinforced more significant concerns.
The Tribunal considered the Applicant’s explanation in his post-hearing statutory declaration for the issues in his oral evidence. He claimed that he was extremely nervous at the hearing and was not able to concentrate on questions to be able to answer them. However the Tribunal was not satisfied that the cumulative effect of the deficiencies in the Applicant’s evidence were explicable by his nervousness at the hearing.
Considering all the evidence, the Tribunal did “not think that the applicant has been a truthful witness in relation to key aspects of his claims”.
The Tribunal stated that in making this assessment it had taken note of country information concerning the waves of attacks that occurred against Hindus in Bangladesh in 2013 and again in early 2014. Notwithstanding this independent information, the Tribunal remained unpersuaded as to the truth of the Applicant’s claims that he was “systematically hunted in the way that he has described over a period of 6 to 7 months”.
The Tribunal was not satisfied that the fact the Applicant was not represented at the interview with the delegate or the issues he raised in relation to preparation of his original statement (with the assistance of a volunteer solicitor) explained the cumulative impact of the inconsistencies in his evidence and the plausibility issues identified. It described the Applicant as educated and the original statement as a very detailed and precise recording of claims.
The Tribunal concluded that “[t]he cumulative impact of the deficiencies in the evidence” was such that it could not be satisfied that the Applicant had been threatened, attacked, followed, telephoned by anti-Hindu militants, or that his family had been telephoned, threatened and had their house ransacked by anti-Hindu militants seeking to extract information about the location of the Applicant. The Tribunal was not satisfied the Applicant had relocated on various occasions for the reasons claimed or that his family did so. As the Tribunal was not satisfied the Applicant had been “the target of any anti-Hindu groups, or individuals, or has suffered harm or threats at the hands of such groups or individuals” it was not satisfied that there was a real chance of serious harm or a real risk of significant harm to him “based on previously being targeted either on the basis of his religion, membership of a particular social group as a member of a Hindu organisation, his imputed political opinion in opposition to the political views of militant Muslims, or for any other reason”.
The Tribunal was prepared to accept that the Applicant was of Hindu faith and had some involvement in the Hindu organisation, Jago Hindu. It accepted that, as the Applicant had said at the hearing, he was an ordinary member and did not have a leadership role within the Jago Hindu. The Tribunal considered the risk of harm to the Applicant as a Hindu who belonged to a Hindu organisation, but it did so on the basis that there had been no prior “targeting” of him or harm suffered by him based on his religion or imputed political opinion or for any other reason.
The Tribunal recorded that it had provided the Applicant’s representative with a copy of a 2014 DFAT country report on Bangladesh at the hearing and with a broad overview of the independent information that was outlined in the decision. It referred to evidence of violence against Hindus, particularly in the context of political events such as the war crimes tribunal and the January 2014 election and to statistics as to deaths, injuries and violence against Hindus in Bangladesh in 2014 and 2015.
The Tribunal noted that there were reports of sizeable numbers of attacks and harm against Hindus, but found that this needed to be seen in the context of the number and the proportion of Hindus in Bangladesh, the absence of restrictions on Hindus practising their religion and the fact that they made significant contributions to Bangladeshi public life.
The Tribunal stated in this context it had indicated that it would not be inclined to accept that there was a real chance of serious or significant harm to the Applicant on the basis of being a Hindu or belonging to a Hindu group without any other characteristic or profile to lead to a greater risk of harm.
The Tribunal found that there was no independent information provided by the Applicant, or before it, which would suggest any greater risk of harm to members of the Jago Hindu than for any other Hindu practitioner.
The Tribunal addressed the Applicant’s post-hearing submission that there were additional considerations to be taken into account, that independent reports may not reflect the actual number of incidents which had occurred but which may not be reported, that the DFAT report did not reflect current country information, and that statistics as to the declining proportion of Hindus in Bangladesh meant that many hundreds of thousands of Hindus had left the country. This had been said to demonstrate the risk of harm and to be an indication of systematic persecution of Hindus in Bangladesh.
In considering whether there was a real chance of serious or significant harm to the Applicant “based on being a Hindu practitioner and the member of a Hindu organisation”, the Tribunal accepted that the DFAT report painted a more benign picture than other independent information. It was prepared to accept that the declining numbers of Hindus in Bangladesh may reflect their minority status and that there may be some underreporting of instances of harm. However it was not inclined to accept that the independent information, including from reputable non-government organisations and the US government, did not give a reasonably accurate indication of the situation faced by Hindus “on the ground” in Bangladesh.
The Tribunal stated that it was conscious of the dangers of taking a “safety in numbers” approach. It referred to decisions of this court suggesting that the assessment of risk may be real notwithstanding a low probability of harm facing any individual, but also that a statistical analysis was not impermissible, provided an applicant’s particular circumstances were also properly considered.
The Tribunal was not persuaded that the numbers of reported instances of harm to Hindus (either in terms of deaths, injury or damage to homes), in the context of a population of 13.5 million Hindus led to a real chance of serious or significant harm for any Bangladeshi Hindu. It found that even if these reported figures were multiplied by ten this would lead to a statistical chance of harm of less than one tenth of 1% in any given year and that even considering the risk several years into the future this would lead to a risk of “well less than one percent”. Considering all the evidence before it, the Tribunal concluded that the risk to the Applicant of serious or significant harm based on being a Hindu in Bangladesh was remote.
The Tribunal acknowledged that any assessment must consider factors particular to the Applicant. It referred to the fact that it had not accepted that the Applicant had been specifically targeted as claimed, but accepted that he was a practitioner of the Hindu faith, as part of which he belonged to a Hindu organisation. However the Tribunal was not satisfied that the Applicant had a high profile, or was a religious leader or a leader within the Hindu organisation to which he belonged and was not satisfied that there was anything in his particular circumstances that would raise the risk of serious or significant harm to the level of a real chance of such harm.
The Tribunal concluded that it was not satisfied that the Applicant faced a real chance of serious or significant harm due to being a practising Hindu or an ordinary member of the Jago Hindu.
The Tribunal considered the fact that it might be inferred that the Applicant was claiming that he faced harm on the basis of discrimination due to being a Hindu. It accepted that Hindus were a minority in Bangladesh, but was not satisfied that the independent evidence established that they were discriminated against to such an extent that could be said to constitute serious harm or fall within the definition of significant harm. The Tribunal referred to country information about Hindus making significant contributions to public life in Bangladesh and to the absence of evidence that the Applicant had been significantly hampered in terms of his education, employment or ability to earn a living. The Tribunal was not satisfied on the evidence before it that the Applicant would face a real chance of discriminatory treatment as a Hindu that would constitute serious harm or fall within any of the definitions of significant harm.
The Tribunal concluded that the Applicant did not meet the Refugees Convention criterion or the complementary protection criterion. It affirmed the decision not to grant him a protection visa.
These Proceedings
The Applicant relied on the grounds in his application. He did not file pre-hearing written submissions. I made orders for post-hearing submissions to address additional issues which arose from these grounds.
After the First Respondent filed post-hearing written submissions, supplementary written submissions in response from the Applicant were emailed to the court. These were prepared by counsel who was retained on a direct access basis for the purpose of preparing such a response. A copy of these submissions was provided to the solicitors for the Minister. While the submissions were not filed and served, I consider it appropriate to take them into account.
Before considering the grounds of review, I note that at the hearing the Applicant sought to rely on a supporting letter from Mr Ison. This letter was not in the form of sworn evidence. It was not before the Tribunal. I have had regard to it insofar as it is in the nature of submissions. However to the extent that Mr Ison purported to give evidence to the court about the present situation in Bangladesh, as was conceded in the Applicant’s post-hearing written submissions, such information is not relevant to the question of whether there is jurisdictional error on the part of the Tribunal as it was not evidence that was before the Tribunal at the time of the decision.
Further, insofar as Mr Ison contended that the Applicant was targeted in Bangladesh, this letter seeks impermissible merits review.
Integers of the Applicant’s Claim Issue
Ground 1 in the application raises a variety of issues. It is as follows (errors in original):
The Administrative Appeal Tribunal made a jurisdictional error when it failed to consider each integer of his claim and or failed to take into account the whole of the oral and written evidence in determining whether he feared persecution claimed amounted to persecution and serious harm within the meaning of s 91 R of the Migration Act. The decision was infected with error and consequently the AAT acted contrary to law, resulting in constructive failure to exercise jurisdiction.
Particulars:
The Applicant is a truthfull witness. He gave all the details of his past activities with an Hindu Organisation in Bangladesh – Jago Hindu. He was targated by the fanatical Islamists (in particular, persons affiliated with Jamat-E-Islam) because of his association with the Hindu Organisation in Bangladesh. He received several telephone threats from the fanatical Islamists because they alleged that the applicant had distributed cartoons of Prophet Mohammad and working against the Muslim faith in Bangladesh.
In October 2013, the applicant was stopped by armed Islamic HUZUR and other extremists Muslim Students. They threatened the applicant and clearly told him that if applicant stayed in Bangladesh he will be killed. They also threatened to burn applicant’s father’s house and father’s shop. Later on they (fanatical Islamists ransacked and damaged father’s house. His father complained to the Police but the Police refused to give genuine protection.
In January 2014 the applicant received a phone call from unknown number in which the caller told the applicant that he is ‘On death row’ and he should count days. They said that they are going to kill applicant. The applicant claims that the Tribunal did not account the applicant’s oral and written evidence of his claim and made decision without considering the circumstances in which the applicant left Bangladesh
The applicant claim that the Tribunal failed to comply with the risk factors prescribed by the Migration Act in assessing the fear of persecution.
The applicant claims that the Tribunal failed to consider more recent information with regards to the attacks on Hindus by the extremist and fanatics. The applicant gave a credible evidence of persecution which occurred his suburb […] and Dhaka.
The applicant believes the Tribunal made error or path leading to error, error is itself is failure to person the statutory task imposed on AAT by the Migration ACT.
To the extent the particulars to this ground simply repeat claims made by the Applicant and assert that he was targeted by fanatical Islamists, the Tribunal addressed the Applicant’s claims in this respect. It also understood and considered his claim to fear harm as a Hindu and also on the basis of his involvement in Jago Hindu.
In relation to the claimed past incidents, the Tribunal made adverse credibility findings (for the reasons set out above), which led it to the conclusion that it could not be satisfied that the Applicant had been threatened, attacked, followed, or telephoned by anti-Hindu militants; that his family had been telephoned, threatened and had their house ransacked by anti-Hindu militants seeking to extract information about his location; that the Applicant had relocated on various occasions within Dhaka for reasons claimed; or that his family relocated on various occasions for the reasons claimed.
Reading the Tribunal decision fairly and as a whole it is clear that the Tribunal made such findings in circumstances where the Applicant claimed to have been systematically targeted and hunted over a period of 6 to 7 months. The Tribunal was not satisfied that the Applicant had been the past target of any anti-Hindu groups or individuals as claimed or that he had suffered harm or threats at the hands of such groups or individuals. Hence it was not satisfied that there was a real chance of serious harm or real risk of significant harm “based on [the Applicant] previously being targeted” on the basis of his religion, membership of a particular social group as a member of a Hindu organisation, his imputed political opinion in opposition to the political views of militant Muslims, or for any other reason.
The Tribunal considered the integers of the Applicant’s claims about past events, insofar as it was necessary to do so in light of its adverse credibility finding.
To the extent ground 1 simply disagrees with the Tribunal’s factual findings it does not establish jurisdictional error, but seeks impermissible merits review.
The particulars also assert that the Tribunal failed to comply with the “risk factors” prescribed by the Act in assessing the fear of persecution. The Act does not prescribe any “risk factors” that have to be taken into account in assessing the fear of persecution. The Tribunal correctly referred to and considered the applicable tests in relation to persecution and serious harm. It has not been established that the Tribunal misapplied or misunderstood the law in that respect. As it correctly observed, the mere fact that a person claims to fear persecution for a particular reason does not establish either the genuineness of the asserted fear, that it is “well founded” or that it is for the reason claimed.
These aspects of ground 1 are not made out.
Independent Country Information Issues
Ground 1 also raises an issue about the Tribunal’s consideration of independent country information. It is asserted that the Tribunal failed to consider more recent information in relation to attacks on Hindus by extremists and fanatics.
This can be seen as raising a concern of the nature identified in Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431. In post-hearing submissions to the Tribunal the Applicant’s representative submitted that the DFAT country report referred to by the Tribunal during the hearing (elsewhere in the reasons described as the DFAT Country Report – Bangladesh, 20 October 2014) did not reflect current independent country information cited in the Applicant’s submissions in relation to the persecution of Hindus in Bangladesh. No jurisdictional error is apparent in this respect.
However in post-hearing submissions counsel for the Applicant accepted that in the circumstances of this case the Tribunal did not fail to consider more recent country information in a manner giving rise to jurisdictional error.
More generally, the choice and the assessment of the weight to be given to the country information before it was a matter for the Tribunal (see NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11] – [13] and SZJTQ v Minister for Immigration and Citizenship [2008] FCA 1938; (2008) 172 FCR 563 at [42]). I note that the Tribunal considered the submission that the DFAT Report painted a more benign picture than other country information. It accepted that this was so, and was prepared to accept that the declining number of Hindus in Bangladesh may reflect their minority status and that there may be some underreporting of instances of harm. However it was not inclined to accept that independent information, including from what it described as “reputed NGOs” and the US government, did not give a reasonably accurate indication of the situation faced by Hindus on the ground in Bangladesh.
Associated with this issue, a question arose at the hearing as to whether the way in which the Tribunal used statistical analysis revealed jurisdictional error (in particular in light of the decision of the Federal Court in DZADQ v Minister for Immigration and Border Protection [2014] FCA 754).
In DZADQ Mansfield J held that the Tribunal had committed jurisdictional error, either by not engaging in an “active intellectual process” with regard to country information or by misapplying the real chance test to that information (at [53]). In that case the Tribunal had reasoned that while it accepted that sectarian violence was a problem in Pakistan, when it considered the fact that there were estimated to be over 40 million Shia Muslims in Pakistan, it was of the view that there was only a very remote chance that the applicant (a Shia Muslim) would be the victim of sectarian violence if he returned to live with his family in their home region in Pakistan (see DZADQ at [54]).
In post-hearing submissions to the court the Applicant submitted that DZADQ stood for the proposition that where there was evidence of harm directed at a target group to which an applicant belonged, it was not open to a decision-maker to find that the chance or risk of an applicant being harmed was remote simply because the relevant target group was numerous and the number of reported instances of harm to members of that target group was low in comparison to the total number of members in the target group (DZADQ at [65]).
It was pointed out that a decision-maker is required to have regard to the country information before it and the particular circumstances of the applicant in determining whether he or she faced a real chance of serious harm or a real risk of significant harm on return to his or her country of origin.
The Applicant submitted that in this case the Tribunal had relied substantially on statistical analysis of country information in finding that there was no real chance of serious harm and no real risk of significant harm to him on return to Bangladesh. While it was acknowledged that it was open to the Tribunal to consider the extent of any claimed violence, it was contended that the Tribunal had simply compared the number of reported instances of harm to Hindus to the total number of Hindus in Bangladesh and determined the percentage of those who had been reported as harmed as against those who had not been harmed. The Applicant submitted that in proceeding this way the Tribunal had ignored his particular circumstances in favour of a mathematical and formulaic approach to determining the question of whether he faced a real chance or real risk of serious or significant harm on return to Bangladesh.
Contrary to the Minister’s submission, the Applicant submitted that the Tribunal had not gone on to consider his particular circumstances (at paragraph 79) such as to render the use of statistical analysis permissible, as “in reality” paragraph 79 of the Tribunal’s reasons was said to contain no more than a summary of the Tribunal’s conclusions based on its finding that the Applicant was a witness who lacked credit for the reasons stated elsewhere in its decision.
The Applicant contended, however, that the Tribunal had erred in its assessment of his credibility by failing to take into account the supporting letter from Jago Hindu. In these circumstances it was submitted that the Tribunal could not be said to have “properly considered” the Applicant’s particular circumstances in finding that there was no real chance of serious harm and no real risk of significant harm to him on return to Bangladesh.
On this basis it was submitted that the Tribunal fell into jurisdictional error of the kind identified in DZADQ by impermissibly relying on statistical analysis of country information in rejecting the Applicant’s claims to fear harm on return to Bangladesh without regard to his particular circumstances.
There are two aspects to these contentions. First is the issue of whether the Tribunal impermissibly relied on statistical analysis. The Tribunal’s findings in issue occurred after the Tribunal accepted there may be some underreporting of instances of harm. It stated (at paragraphs 76 to 80):
76. The issue before the Tribunal remains whether there is a real chance of serious or significant harm to the applicant based on being a Hindu practitioner and the member of a Hindu organisation. The Tribunal is conscious of the dangers of the ‘safety in numbers argument’. In this respect it notes the decision in SZSSM v Minister for Immigration and Anor [2013] FCCA 1489 (11 November 2013) in which the Driver J cautioned that the assessment of risk may be real notwithstanding a low probability of harm facing any individual. MZAKC v Minister for Immigration and Anor [2016] FCCA 834 (14 April 2016) suggests that a statistical analysis is not impermissible provided that the applicant’s particular circumstances were also properly considered.
77. The Tribunal is not persuaded that the numbers of reported instances of harm to Hindus, either in terms of deaths, injury or damage to homes (which would be relevant to the applicant in the context of serious or significant harm) in the context of a population of 13.5 million Hindus leads to a real chance of serious or significant harm for any Bangladeshi Hindu. Even if these reported figures in these categories (as compiled by Ain o Salish Kendra as outlined in this decision) were to be multiplied by 10, it would lead to a statistical chance of harm of less than one tenth of one per cent in any given year. Even considering the risk several years into the future would lead to a risk of well less than one per cent.
78. Considering all evidence before it, the Tribunal considers the risk to the applicant of serious or significant harm based on being a Hindu in Bangladesh is remote.
79. Any assessment must also consider factors particular to the applicant. As indicated, the Tribunal has not accepted applicant has been specifically targeted as he has described. The Tribunal is of the view that the applicant is a practitioner of the Hindu faith, as part of which he belongs to a Hindu organisation. The Tribunal is not satisfied that the applicant has a high profile or is a religious leader or a leader within the Hindu organisation to which he belongs. The Tribunal is not satisfied that there is anything in the applicant’s particular circumstances which would raise the risk of serious or significant harm to the level of a real chance of such harm.
However these findings must be seen in context. As the First Respondent submitted, the circumstances in DZADQ differed from those in this case. There is nothing in DZADQ that suggests that it was not open to the Tribunal to reason in the way it did in this case, by first considering the risk of serious or significant harm to the Applicant based on being a Hindu in Bangladesh and then considering whether there was anything in his particular circumstances that might increase that risk.
Jurisdictional error was found in DZADQ in circumstances where the Tribunal had accepted that the applicant was at risk of serious harm by reason of his religion and the only reason it gave for the conclusion that the risk would be too remote was that there was 40 million Shia Muslims in Pakistan. The Tribunal in DZADQ did not have regard to non-statistical country information or the Applicant’s particular circumstances in reaching that conclusion. Mansfield J was of the view that where the country information before the Tribunal suggested that violence was “coordinated, pervasive and effective” and that the Taliban was a “cogent and broadly spread instrument of its application”, it was not sufficient for the Tribunal to rely only on the fact that because the target group was numerous the chances of any particular person being harmed or killed was fanciful (DZADQ at [65]).
However in this case the Tribunal did not simply rely on the fact that the target group was numerous. As the First Respondent pointed out, the Tribunal had previously observed (at paragraph 70) that there were reports of sizeable numbers of attacks and harm against Hindus. However it was of the view that this had to be considered in the context of the fact there were 13.5 million Hindus in Bangladesh (8.5% of the population) as well as an absence of restrictions on Hindus practising their religion and evidence of significant contributions by Hindus to Bangladeshi public life. It was in that context that the Tribunal was not inclined to accept that that there was a real chance of serious or significant harm to the Applicant on the basis of being a Hindu or belonging to a Hindu group “without any other characteristic or profile to lead to a greater risk of harm”.
Relevantly, the Tribunal found that there was no independent information before it to suggest any greater risk of harm to members of the Jago Hindu than for any other Hindu practitioner. It addressed the Applicant’s contentions about reliance on country information and the underreporting or underestimation of incidents of harm and the exodus of Hindus. It also referred to the dangers of the “safety in numbers” argument and the need to properly consider the Applicant’s particular circumstances as well as statistics. Its finding that it was not persuaded that the number of reported instances of harm to Hindus in the context of a population of 13.5 million Hindus led to a real chance of serious harm for “any” Bangladeshi Hindu must be seen in light of these findings.
Critically, the Tribunal then went on to consider whether factors particular to the Applicant would raise the risk of harm. Contrary to the Applicant’s submission, the Tribunal’s finding at paragraph 79 is not simply a summary of its earlier adverse credibility findings.
It is the case that this aspect of the Tribunal’s findings was premised on its earlier finding that it did not accept that the Applicant had been specifically targeted as he had claimed, but the Tribunal also considered his personal circumstances, in particular the fact that he was a practitioner of the Hindu faith as part of which he belonged to a Hindu organisation. However the Tribunal was not satisfied that the Applicant had a high profile, was a religious leader or a leader within Jago Hindu. These aspects of the Tribunal’s reasoning were not based on its earlier adverse credibility finding which related to whether the Applicant had been previously targeted as claimed.
Thus, the manner in which the Tribunal used statistical analysis in this case can be distinguished from DZADQ. In DZADQ the Tribunal had before it country information indicating that sectarian violence was a problem in Pakistan, as outlined above. It was impermissible for it to simply rely on the fact that the target group was numerous in considering the risk to any individual person. In this case a question for the Tribunal was whether religious violence against Hindus in Bangladesh was indeed a problem. In that context it was open to the Tribunal to consider the number of reported attacks against Hindus in Bangladesh as compared to the population of Hindus in Bangladesh in determining the extent of any such religious violence. As indicated, the Tribunal also had regard to the absence of any restrictions on Hindus practising their religion and their significant contributions to Bangladeshi public life and (unlike in DZADQ) engaged directly with the underlying country information. Further, the Tribunal gave genuine consideration to the personal circumstances of the Applicant, but found nothing in those circumstances that would increase the risk compared to other Hindus in Bangladesh. It did not confine itself to a quantitative analysis. No jurisdictional error has been established in this respect.
Secondly, insofar as the Applicant’s contention is that the Tribunal did not “properly consider” his particular circumstances because it erred in its assessment of his credibility by failing to take into account the letter from Jago Hindu, as discussed below, jurisdictional error on this basis has not been made out. In any event, there was nothing in that letter to suggest that the Applicant had a high profile or was a religious leader or leader within Jago Hindu.
No jurisdictional error is established on this basis.
Failure to Take Evidence into Account Issue
Ground 1 is expressed, in the alternative, as a contention that the Tribunal failed to take into account the whole of the oral and written evidence. The first particular claims that the Applicant “gave” all the details of his past activities with Jago Hindu and that he was targeted because of his association with this organisation.
This claim gave rise to an issue as to whether the Tribunal fell into jurisdictional error of the nature identified in Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 by failing to refer to evidence in the form of a letter from the Secretary of Jago Hindu which was provided to the Department in support of the protection visa application. The parties addressed this issue in post-hearing written submissions.
The letter, on what appears to be Jago Hindu letterhead, is dated 8 April 2014 (the day after the Applicant left Bangladesh). It is said to be signed by the named Secretary of the Jago Hindu in Dhaka, Bangladesh. The copy in the Courtbook bears a notation “original sighted 24 Nov 14”.
The letter is as follows (errors in original):
TO WHOM IT MAY CONCERN
Dear Sir / Madam
I am writing on behave of [the Applicant], village: [address]. He is by born in Bangladeshi and Hindu religion … He is the member of JAGO HINDU Organisation and work for Hindus right and publicity of Hinduism. But in September and October 2013 [the Applicant] and his family faced several killing attempt and threaten from unknown number by the ISLAMI HUZUR and Madrasa Student. The Islamic HUZUR and Madrasa student issuing a false claim against him that he abuse Mohammed and holly Quran. Also [the Applicant] refused to get any assistance from local police station. After all thus happening he feel very scared and unsafe to live in Bangladesh. On 07 April 2014 he leaves for Australia to survive his life.
Therefore we would like to request the Australian Government that please allow [the Applicant] to stay permanently in your country.
Yours sincerely …
In submissions the Applicant referred to the fact that in SZRKT Robertson J had summarised (at [71]) the reasons of the Federal Magistrate at first instance, in finding that it had been open to the court to conclude that the Tribunal had erred by giving no consideration to an item of corroborative evidence (a university transcript). Those findings were based on the particular factual circumstances in SZRKT, but included the absence of any reference to the document in question in the hearing or in the Tribunal’s reasons; the fact that the Tribunal’s finding was based entirely on its opinion of the intrinsic implausibility of the applicant’s oral evidence; the fact the document was critically relevant corroborative material; and the absence of any specific evidence the Tribunal had given consideration to the document. Robertson J also noted that the Federal Magistrate was not persuaded otherwise by the Tribunal’s general and formulaic reference to having had regard to material on the Department and Tribunal files. This was the only aspect of SZRKT cited in the Applicant’s submissions.
The Applicant acknowledged that the Tribunal was prepared to accept that he was of Hindu faith and had some involvement in Jago Hindu. However it was suggested that this finding was based on the Applicant’s oral evidence to the Tribunal. There was said to be no indication that the Tribunal’s finding in this respect was influenced by the content of the letter, such as to indicate that it took it into account.
The Applicant also submitted that, on a fair reading, the content of the letter indicated that there was a causal link between his membership of the Jago Hindu and the harm he claimed to have suffered and feared at the hands of the Islamist Huzur (referred to in the Tribunal’s reasons as “fanatical Muslims”). It was contended that the content of the letter, if considered, may have affected the Tribunal’s assessment of whether the Applicant’s membership of Jago Hindu placed him at greater risk of harm than other Hindus, because on its face it was corroborative of and relevant to his claims.
The Applicant submitted that it was apparent from the absence of any express mention of this letter in the Tribunal decision that it did “not appear” to have turned its mind to the letter or to have considered the impact of the letter on its assessment of the Applicant’s credibility. It was said to be open to the court to infer that the letter was not considered by the Tribunal.
Insofar as the Tribunal referred to the absence of “independent information” which would suggest any greater risk of harm to members of the Jago Hindu than for any other Hindu practitioner, the Applicant submitted that it was clear on the face of the letter that, notwithstanding that it supported the Applicant’s claims or was written on his behalf, it was independent information as it contained information from a source other than the Applicant.
The Applicant contended that the Tribunal’s decision turned primarily on its view that he lacked credibility, that the letter was directly relevant to his core claims and that it could therefore have materially affected the Tribunal’s assessment of his credibility so that the Tribunal fell into jurisdictional error of the kind identified in SZRKT by failing to consider it.
The Applicant acknowledged that the weight to be given to the letter would be a matter for the Tribunal, but submitted that in the absence of any express finding or reasoning dealing with the letter there was no indication that the Tribunal had turned its mind to these matters.
The First Respondent conceded that there was no mention of this letter in the Tribunal’s reasons. However it was submitted that whether the Tribunal was obliged to consider a document or documents depended the circumstances of the case and the nature of the documents. It was acknowledged that relevant factors included the cogency of the evidentiary material and the place of that material in the assessment of the Applicant’s claims (see SZRKT at [112]).
It was contended first that there was insufficient basis to conclude that the Tribunal did not have regard to the letter. The First Respondent submitted that the letter was not so plainly relevant to the issues before the Tribunal that any such inference could be drawn from the fact that it was not mentioned in the Tribunal’s reasons (cf SZRKT at [71] – [74]). It was submitted that in SZRKT the Tribunal’s adverse finding as to the applicant’s credit, and therefore its rejection of his claims, was founded on its finding that he had not been truthful about his further study and that the piece of evidence that was overlooked was directly corroborative of his evidence as to his former study (see SZRKT at [119]). In contrast, in this case in considering the Applicant’s credibility the Tribunal had multiple difficulties with his claims, none of which were addressed by the letter. It was suggested that in these circumstances it may be unsurprising that the Tribunal did not expressly address the letter in its reasons.
The First Respondent also contended that the fact that the Tribunal remarked that there was “no independent information” that would suggest any greater risk of harm to members of the Jago Hindu than for any other Hindu practitioner, did not suggest that it had overlooked this letter. It was submitted that the letter was not “independent information”, given that it was written on behalf of the Applicant and after his departure from Bangladesh. It was pointed out that the letter did not suggest any greater risk of harm to members of the Jago Hindu. The First Respondent acknowledged that the letter stated that the Applicant and his family had faced attempted attacks and threats, but submitted that it had not, in terms, linked that harm to his membership to Jago Hindu or provided any other information about the risk of harm to members of the Jago Hindu.
In any event, the First Respondent submitted that even if the Tribunal did fail to consider this letter, this did not amount to jurisdictional error in the circumstances of this case as, at best, the letter provided limited corroboration of some of the Applicant’s claims to have been previously attacked. However it was reiterated that the Tribunal had a number of credibility issues with the Applicant’s claims about past events which cumulatively led it to reject his claims in that respect and that this letter did not directly address any of the issues on which the Tribunal had based its credibility conclusion. Hence it was submitted that the letter was not so material that any failure to consider it meant that the Tribunal could be said to have failed to consider the Applicant’s claims or to have otherwise fallen into jurisdictional error.
The letter was clearly corroborative of the Applicant’s claim to be a member of Jago Hindu and, in an unspecified sense, to “work for Hindu rights and publicity of Hinduism”. This was an aspect of the Applicant’s claims to fear harm.
There is no mention of the Jago Hindu letter in the Tribunal decision. The Tribunal did state that it considered “all of the evidence” and it did not think the Applicant had been a truthful witness in relation to key aspects of his claim. In its conclusions in relation to the Applicant fearing harm based on being Hindu it also stated that it had considered “all the evidence before it”. These general statements do not in themselves satisfy me that the Tribunal had regard to the letter.
I am not satisfied that the Tribunal’s reference to the absence of “independent information” which would suggest any greater risk of harm to members of the Jago Hindu than for any other Hindu practitioner supports an inference that the Tribunal overlooked the letter. When regard is had to the Tribunal’s decision as a whole, it is clear that it was referring to country information, as discussed in the hearing and in the post-hearing submission to the Tribunal. The letter was not information of this nature.
However, the Tribunal was “prepared to” accept that the Applicant was a Hindu and had some involvement in Jago Hindu. These were the primary matters to which the letter attested. The Tribunal considered the Applicant’s fear of harm on these bases. The Tribunal also accepted the Applicant’s oral evidence that he was an ordinary member and did not have a leadership role in Jago Hindu. The letter did not specify the level of the Applicant’s involvement in Jago Hindu. Nor did it state that there was a greater risk of harm to members of Jago Hindu than to other Hindu practitioners, albeit that it described some (but not all) of the past incidents the Applicant claimed he had experienced.
Moreover the Tribunal’s acceptance that the Applicant was a member of Jago Hindu was despite its adverse credibility findings (based on other issues about his evidence) which led it to reject his claims about past events and systematic targeting.
Notwithstanding the absence of any reference in the Tribunal’s reasons to the letter in support of the Applicant’s claim to be a member of Jago Hindu, in these circumstances I am not satisfied that it can be inferred that the Tribunal failed to have regard to the letter insofar as it corroborated this aspect of the claim. The Tribunal considered the Applicant’s claim to fear harm as a Hindu practitioner and as an ordinary member with some involvement in Jago Hindu.
Further, even if the Tribunal did overlook the letter, as Robertson J stated in SZRKT at [97] “merely to ignore” relevant material “does not establish jurisdictional error”. The “fundamental question” is “the importance of the material to the exercise of the Tribunal’s function and thus the seriousness of any error” (SZRKT at [111]).
In this case, while the letter was cogent material in relation to the Applicant’s claim to be a Hindu and a member of Jago Hindu, the Tribunal accepted that the Applicant was such a member. Hence in this respect this is not a case in which any failure to take into account the letter resulted in a failure by the Tribunal to deal with the Applicant’s claims in that respect.
Critically, the letter does not assert that membership of the Jago Hindu or the level of the Applicant’s involvement was any part of the reason he was targeted, threatened or attacked in the past as claimed. It simply stated that the Applicant was a member and then repeated the Applicant’s claims that in September and October 2013 he and his family faced several killing attempts and threats and that he refused to get any assistance from local police station. This was inferential support for the Applicant’s claim that he reported to Jago Hindu some claimed September and October 2013 incidents and threats. However the letter does not purport to address all the incidents claimed by the Applicant or, importantly, his claim that he was systematically targeted in a premeditated and sustained way by members of an anti-Hindu group over a period of 6 to 7 months.
Other than in relation to Jago Hindu membership, at best the letter provided some limited corroboration of the Applicant’s claims to have been previously attacked. I am not satisfied that the letter was taken into account by the Tribunal in this respect.
However the letter did not directly address any of the issues which cumulatively led the Tribunal to reject the Applicant’s claims about past events. The letter did not relate to the inconsistencies in the Applicant’s evidence or the Tribunal’s concerns about Mr Ison’s evidence referred to in its credibility findings. Importantly, it did not address or support, even inferentially, his claim that he was systematically hunted and targeted in a sustained and co-ordinated effort. The Tribunal understood and took into account the Applicant’s claim that he was working as a member of a pro-Hindu group (as an ordinary member) in considering his claim that there had been a premeditated and sustained attempt by members of an anti-Hindu group to track him down. However, his claim was that he was systematically targeted over 6 to 7 months (a matter not addressed in the Jago Hindu letter). The Tribunal was unpersuaded by this claim, even having regard to the Applicant’s involvement in Jago Hindu as an ordinary member. It was not satisfied that the Applicant had a high level profile or was a leader in Jago Hindu “such as to attract the sustained and co-ordinated efforts to locate him that are claimed”. There was nothing in the letter to the contrary.
The Tribunal dealt with the Applicant’s claims to have been targeted, threatened and attacked in September to October 2013 on the basis of its adverse credibility finding. In circumstances where the letter merely repeated such claims, but did not relate to or address any of the issues of concern that resulted in the Tribunal’s credibility findings, it has not been established that the letter could have materially affected the Tribunal’s assessment of the Applicant’s credibility.
Given the absence of any suggestion in the Jago Hindu letter that the Applicant had any high profile or leadership role in the organisation or of any link between his role and the claimed targeting and also the limited description of some of the claimed past harm (but not the incidents addressed in the credibility findings and with no indication as to the source of the information or support for the Applicant’s claims that these incidents were part of a sustained and systematic targeting), the letter was not cogent evidence of importance to the Tribunal’s credibility findings. In particular it did not go to any matter relevant to the credibility of the Applicant’s claims about past systematic targeting for 6 to 7 months of the sustained and premeditated nature he claimed he had experienced. The letter was not of such potential significance in the assessment of the credibility of those claims that it was so plainly relevant or of such materiality or importance to the exercise of the Tribunal’s function that the Tribunal’s failure to refer to it in reaching its adverse credibility findings amounted to a constructive failure to exercise its jurisdiction (see SZRKT at [111] – [112] and also see Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; (2014) 309 ALR 67).
Mischaracterisation of the Applicant’s Claims issue
An issue also arose at the hearing as to whether the Tribunal had mischaracterised the Applicant’s claims about past harm, insofar as it characterised those claims as involving a claim that there had been a “premeditated and sustained attempt by members of an anti-Hindu group to track down and harm” him.
The First Respondent addressed this issue in written submissions. Counsel for the Applicant accepted in post-hearing submissions that there was no such mischaracterisation. Hence it is unnecessary to address this issue further.
Ground 1 is not made out.
Procedural Fairness and s.424A
The second ground in the application is that the Tribunal failed to accord procedural fairness to the Applicant as it failed to put to him for comment its “adverse findings in respect of [his] witness and in particular, its findings that those supporting documents and evidence were fabricated or contrived to support the applicant’s application for the protection Visa”.
The particulars to this ground are that the Tribunal failed to comply with s.424A(1) of the Act by not inviting the Applicant to comment on particular information considered by the Tribunal. It was contended that the Tribunal only drew attention to or invited the Applicant’s comment on “the number of what it perceived to be inconsistencies or improbabilities in information”.
The Applicant had nothing to say in relation to this ground, except to confirm that his “witness” was Mr Ison.
First, insofar as it is suggested that the Tribunal made any finding that supporting documents and evidence were “fabricated or contrived to support the applicant’s application for a protection visa”, as the First Respondent contended, the Tribunal made no such finding.
This ground may be seen raising an issue as to whether the Tribunal raised dispositive issues with the Applicant in the course of the Tribunal hearing. Such a claim is not made out. It is well-established that procedural fairness does not require the Tribunal to give an applicant a running commentary on what it thinks about the evidence that is given (see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 at [48]). The Applicant has not identified any dispositive issues that were not put to him or of which he was not made aware by the delegate’s decision such as to identify even arguable jurisdictional error.
It was not necessary for the Tribunal to put to the Applicant for comment at the hearing its thought processes in relation to the evidence of Mr Ison. The Tribunal did not make “adverse findings” in respect of Mr Ison. It did not doubt the credibility of Mr Ison’s account, but found that it raised further concerns about the Applicant’s evidence. It was of the view that there was a disconnect in Mr Ison’s evidence that the Applicant was there (at his place of employment) one day and disappeared the next, on the basis that Mr Ison’s knowledge of such a fact was not consistent with him having only a casual awareness of the Applicant’s activities or residence. It was of the view that if Mr Ison had become aware of the Applicant’s disappearance it might be expected he would have asked his staff about his reasons for leaving (and been told by the general manager that he had left to seek protection in Australia). This caused the Tribunal to discount Mr Ison’s evidence as suggesting that the Applicant left his employment suddenly and without explanation.
In any event, insofar as any of the Tribunal’s concerns related to Mr Ison’s statutory declaration of 22 March 2016, that document was provided to the Tribunal by the Applicant. It was not necessary for the Tribunal to put any part of it to the Applicant for comment under s.424A(1) of the Act (see s.424A(3)(b) of the Act).
It is the case that the Tribunal is under an obligation to put to an applicant adverse information consisting of oral evidence given by another witness at the Tribunal hearing which enlivens the s.424A(1) obligations (see SZEWL v Minister for Immigration and Citizenship [2009] FCA 209; (2009) 174 FCR 498), but neither the Applicant or the Tribunal decision identifies any particular adverse oral information from Mr Ison that was such as to raise such an obligation. There is no transcript of the Tribunal hearing in evidence.
More generally, the Applicant has not identified any particular information which enlivened the obligation under s.424A(1) and was not put to him. I note that the Tribunal recorded (at paragraph 34 of its reasons) that at the hearing it put to the Applicant an aspect of the oral evidence he had given in his interview with the delegate pursuant to s.424AA of the Act. The Applicant elected to provide a response to the Tribunal in writing following the hearing. It was this information that the Applicant subsequently conceded was inaccurate. No issue of any failure to comply with s.424A arises in this respect (see s.424A(2A) of the Act).
This ground is not made out.
Credibility and/or Misinterpretation Ground
The second last ground in the application is numbered 4 but is in fact the third ground. It is as follows (errors in original):
4. Grounds The Tribunal made a jurisdictional error when it discarded all the oral and written submission without giving any solid evidence of cumulative credibility concern in the finding of reasons.
Particulars .In the decision the Tribunal found that there were some inconsistency between he gave at the Tribunal hearing and his written claims and the statements he made at the protection interview. Applicant claims that he misunderstood the questions at the time of interview because the Banglai Language interpreter did not say the whole thing what the Tribunal said to the applicant.
The applicant claims that there was miscommunication between the applicant, the Tribunal member and the interpreter.
First, insofar as this ground takes issue with the adequacy of the interpretation and translation at the Tribunal hearing, there is no evidence before the court to substantiate such a claim.
In the course of the hearing the Applicant indicated that he did not press this concern. He did not identify any aspect of what occurred at the Tribunal hearing that raised any other concern about miscommunication. There is no transcript in evidence. There is nothing in the Tribunal reasons to suggest that the Applicant was not afforded a meaningful invitation within s.425 of the Act. There is no evidence that the Applicant expressed any concern about the communication at the hearing or that the Tribunal was concerned that the Applicant was not able to effectively comprehend or respond to the questions that were put to him.
Insofar as there is a wider miscommunication concern, the Tribunal conducted a de novo review at a time when the Applicant had representation by a solicitor/migration agent. In making its findings the Tribunal had regard to the Applicant’s claim that allowance should be made for the fact he had no representation before the delegate. However it found that the Applicant’s original statement was very detailed and precise and that the Applicant was educated. It was not satisfied that the absence of representation in the departmental interview or issues relating to the preparation of the original statement explained the cumulative impact of the inconsistencies in the Applicant’s evidence or overcame the plausibility issues it identified.
Further, the Tribunal considered the Applicant’s explanations for inconsistencies in his evidence. It is not apparent from its reasons that the Applicant raised any concern about misunderstanding questions in the Tribunal hearing, whether because the interpreter “did not say the whole thing”, or otherwise. In the Applicant’s post-hearing statutory declaration he explained that at the Tribunal hearing he had been extremely nervous and anxious and not able to concentrate on the questions. He did not raise concerns about mistranslation or other miscommunication in the Tribunal hearing.
In addressing the discrepancy between his evidence at the Tribunal hearing and his interview with the delegate, while the Applicant sought to provide a reason to the Tribunal as to why the information he had given to the delegate was inaccurate in relation to where he moved to at particular times, he did not raise any issue about translation. Rather he agreed (having listened to the recording of the interview with the delegate) that he had given clearly inaccurate information about his first move to the delegate and raised the possibility that he had not paid attention because he had assumed the delegate was referring to his second move and that his response indicated a lapse in concentration during the interview.
Insofar as this ground cavils with the Tribunal’s adverse credibility finding on the basis that the Tribunal did not agree with the Applicant’s evidence and the submissions made to it, the Tribunal considered the Applicant’s claims and his oral and written submissions. It gave detailed reasons for its findings, which were not limited to inconsistencies in the Applicant’s oral evidence and were articulated properly. It was not necessary for the Tribunal to accept uncritically the Applicant’s account or to have rebutted evidence before not being satisfied of his credibility in the manner that appears to be contended.
Further, while the Tribunal took into account the implausibility of the Applicant’s claims about being systematically targeted and hunted, it did so in circumstances where the Applicant had confirmed that his claim was that there had been a premeditated and sustained attempt by members of an anti-Hindu group to track him down and harm him. The Tribunal considered, but found implausible, the Applicant’s claim that he was systematically hunted in the way he described over a period of 6 to 7 months. In expressing such views it had regard to the extremely elaborate lengths members of the group would have had to go to in order to find the Applicant (particularly after he and his father changed their telephone numbers), including travelling some 225 kilometres to threaten his father and ransack the family property and acting in concert (in an almost military or police-like way) to track down the Applicant over the course of one evening in November 2013.
The Tribunal also found that such efforts to locate the Applicant were inconsistent with the fact he was readily available at his daily workplace (and also at the location of his second job). It found the claimed multiple relocations of the Applicant’s residence difficult to reconcile with his daily return to his workplace, which was the one location where he claimed he had previously lived and had been visited by anti-Hindu individuals who were seeking to target him.
Further, the Tribunal had difficulty believing that, even if working for a pro-Hindu group, the Applicant would have been targeted with the effort claimed. On the Applicant’s evidence it was not satisfied he had a high level profile or was a leader in Jago Hindu such as to attract the claimed sustained and co-ordinated efforts to locate him. The Tribunal acknowledged the independent information about waves of attacks against Hindus in 2013 and early 2014, but remained unpersuaded of the truth of the Applicant’s claims that he was “systematically hunted” in the way described over a period of 6 to 7 months.
Finally, the Tribunal recognised and took into account that great care must be taken in making adverse findings based on plausibility. To the extent its adverse credibility findings were based on plausibility concerns, the Tribunal’s reasons reveal that it took the requisite care.
While credibility findings are not immune from review, in this case the Tribunal’s findings were reasonably open to it on the material before it for the reasons it gave. No jurisdictional error of the nature referred to in CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 46; (2016) 253 FCR 496 at [36] – [38] has been established. I note in that respect that even if a different decision-maker may have reached a different decision, the decision was not one at which no rational or logical decision-maker could arrive on the same evidence (see Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 per Crennan and Bell JJ at [130] – [135] and ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; (2016) 250 FCR 109 at [47]).
This ground is not made out.
Complementary Protection Ground
The last ground in the application is that the Tribunal failed to apply the correct test in relation to the complementary protection criterion in s.36(2)(aa) of the Act and made a jurisdictional error when it “did not follow Rules of Real Risk Test of persecution and harm”.
The particulars to this ground assert that the Tribunal ignored “the relevant consideration related with complementary Protection set out in s.36(2)(aa)” and that the harm or mistreatment feared by the Applicant was for reason of one or more of the five grounds recognised in the Refugees Convention, that his fear was well founded and that there was a real chance he would suffer persecution and would be killed if he returned to Bangladesh.
The Applicant had nothing to add in relation to this ground. It is lacking in clarity. Insofar as it is intended to be a contention that the Tribunal failed to apply the correct test in relation to the complementary protection criterion in s.36(2)(aa) of the Act this is not made out. The Tribunal correctly referred to the complementary protection test. The Applicant did not make any separate claim for complementary protection. The Tribunal rejected his claims to have a well-founded fear of persecution for any reason (not only for Refugees Convention reasons) and in the course of discussion of his claims considered both the real chance of serious harm and the real risk of significant harm. Notwithstanding the very brief concluding paragraphs in relation to the complementary protection criterion, I am satisfied that it was open to the Tribunal in light of its earlier findings to address the complementary protection criterion briefly. It was not necessary in that context for it to consider further the definitions of the kind of conduct that amounts to significant harm. I note in that respect that it had referred to the definition of significant harm in considering discriminatory treatment of Hindus.
Insofar as it is claimed that the harm feared by the Applicant was for one of the recognised Refugees Convention grounds this conflates the tests in ss.36(2)(a) and 36(2)(aa) of the Act and otherwise seeks impermissible merits review. The Tribunal has not been shown to have misunderstood or misapplied either criterion. This ground is not made out.
As none of the grounds raised by the Applicant have been made out, the application must be dismissed.
I certify that the preceding one hundred and fifty-five (155) paragraphs are a true copy of the reasons for judgment of Judge Barnes.
Date: 7 May 2019
0
19
2