BHX18 v Minister for Home Affairs
[2018] FCCA 3498
•29 November 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BHX18 v MINISTER FOR HOME AFFAIRS & ANOR | [2018] FCCA 3498 |
| Catchwords: MIGRATION – Review of Immigration Assessment Authority (IAA) decision – refusal of protection visa – applicant claiming a fear of harm in Bangladesh – applicant disbelieved in critical respects – other fears not well founded – whether IAA failed to properly consider a claim or unreasonably failed to get an updated DFAT country report – no jurisdictional error established. |
| Legislation: Migration Act 1958 (Cth), ss.36, 65, 414, 415, 473CB, 473CC, 473DB, 476 |
| Cases cited: BDI17 v Minister for Immigration [2018] FCCA 2162 Minister for Immigration v SZQRB [2013] FCAFC 33; (2013) 210 FCR 505 MZYXS v Minister for Immigration [2013] FCA 614 |
| Applicant: | BHX18 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 714 of 2018 |
| Judgment of: | Judge Baird |
| Hearing date: | 29 November 2018 |
| Date of Last Submission: | 29 November 2018 |
| Delivered at: | Sydney |
| Delivered on: | 29 November 2018 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondents: | Mr G Johnson |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application be dismissed.
The Applicant pays the First Respondent’s costs fixed in the sum of $7,328.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 714 of 2018
| BHX18 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
(ex tempore, revised from transcript)
This is an application pursuant to s.476 of the Migration Act 1958 (Cth) seeking judicial review of a decision of the Immigration Assessment Authority, made on 19 February 2018, affirming the decision of a Delegate of the Minister for Home Affairs, made on 14 December 2017 to refuse to grant the Applicant a Safe Have Enterprise (subclass 790) Visa. The Application for judicial review was filed in this Court on 19 March 2018.
Background
The Applicant is a citizen of Bangladesh, and is a Bengali Sunni Muslim now aged approximately 29 years old. He was born in Dhaka province. His parents and eight of his ten siblings continue to reside in his home village which is predominantly a farming village. His two other siblings also live in Bangladesh.
On 24 March 2013, the Applicant arrived on Christmas Island as an irregular maritime arrival. On 14 April 2013, he took part in an entry interview with the Department of Home Affairs (then the Department of Immigration and Border Protection). According to the entry interview records, at Part C, item 7, which asks: “[w]ere there any armed groups, political groups, or religious groups operating in the area you lived?”, the Applicant responded in the affirmative, stating:
Political groups are fighting in the village. Amman League fight with anti-party.
Further, in response to item 18, which asks “[w]hat do you think will happen to you if you return to your country of nationality (residence)?”, the Applicant stated:
I will face difficult situations with the family. I will have to do a hard labour job.
On 18 May 2016, the Applicant applied for the Visa. The application annexed a statement by the Applicant which outlined his claims for protection, and why he fears harm if returned to Bangladesh. In that statement he stated that:
One day while working at our shop, there was a fight in front of our shop between members of the Awami League and the BNP [Bangladeshi National Party]. One person was killed, who belonged to the BNP. The fight involved a large amount of people. I became scared when I saw all of the commotion. I closed my shop and tried to get away from the violence.
He then stated that a few days after the murder BNP supporters came back to the shop and asked him to be a witness, and expected that he should go to the police station and tell them what he saw. He stated that he told the BNP supporters that he had not seen anything, and he did not want to be involved in their dispute. He then stated that:
Approximately, a week after the murder, my fear was actualised when the Awami League supporters came to our shop and threatened me. They told me that I had better not give evidence otherwise they would kill me.
He then became fearful, and with money provided from his father, fled.
Proceeding before the Authority
Applicant’s protection claims
The Applicant’s claims to protection are set out at [4] of the Authority’s decision. They can be summarised as follows:
(a)there is politically related violence in his home village due to tensions between supports of the Bangladesh Awami League (AL), and the BNP. The Applicant’s family have always been BNP supporters and occasionally the Applicant would attend meetings and become involved in BNP political processions. His elder brother is an active BNP member;
(b)the Applicant engaged in farming with his father. He also helped his father run a grocery shop in the village bazaar where they sold the produce they grew, and also produce bought from other farmers. In approximately January 2013 the Applicant was working at the shop when a fight broke out between a large amount of people who were AL and BNP members. One of the BNP members was killed during the fight;
(c)a few days after the fight, BNP supporters came to the shop and said that they knew the Applicant had seen the BNP member being killed as it occurred outside the shop, and wanted the Applicant to make a report about the matter to the police. The Applicant did not want to become involved in the matter and told them he had not seen anything. About a week after the fight, AL supporters came to the shop and threatened to kill the Applicant if he gave evidence. The AL members came to his house on a second occasion and made further threats. The Applicant fled about a month after the incident;
(d)there has been an ongoing family dispute about sharing the land between the Applicant’s father and his paternal uncles. While the family was preoccupied with these problems, three of his uncles took advantage of the situation and changed the deeds of the land ownership;
(e)in early 2017, the AL member who led the threats against the Applicant came to the family home and attacked the Applicant’s brother after finding out that the Applicant was not there. His brother is now blinded in one eye;
(f)the Applicant fears that BNP supporters will pursue him to be their witness on return, and the AL will see this happen. He fears being killed or harmed by AL or by mastaans (organised crime syndicates) acting on behalf of AL as the murder has not been resolved in Bangladesh. He also fears being harmed by AL due to his BNP support and his brother’s BNP membership;
(g)while the Applicant was in detention in Australia, some Bangladeshi officials came to the detention centre to verify the applicant’s identity. The police subsequently came to the Applicant’s home in Bangladesh to verify his identity. They stated that they knew the Applicant was in Australia and told his father that the Australian government needed some papers from them which if not provided would result in the Applicant being returned to Bangladesh. They asked his father for some money in exchange for issuing the papers. The applicant fears that the incident could be used as a reason to further target him on return.
BNP support
At [6]-[16], the Authority considered the Applicant’s affiliation with the BNP and his issues with AL. The Authority outlined the Applicant’s account of the alleged murder outside the father’s shop. The Authority noted inconsistencies at [6]-[7], and changed submissions, or clarifications of submissions, made in the post-interview submission (which I note was sent 11 September 2017, and prepared with the assistance of a migration agent).
At [9], the Authority noted the inconsistencies between the entry interview and the statement accompanying the Applicant’s Visa application. The Authority stated at [9]:
The applicant in his visa application stated that he did not previously mention his BNP support because he was concerned the Australian government would think he was a political thug. Nor did he mention that he witnessed a murder as he was frightened of being sent back and his friends in the detention centre had cautioned him against giving too much information. Additionally he was not made aware that the information from the entry interview would be used for assessing his protection claims, he had not spoken to a lawyer and did not understand the rules and regulations in Australia. For these reasons he did not give his full claims or mention his support of BNP.
At [10], the Authority observed that there were significant discrepancies between the other statements, including the Visa interview and the entry interview, and the Authority observed that these raised significant concerns regarding the credibility of the Applicant’s claims.
At [11], the Authority observed that the Applicant’s account of his and his family’s BNP involvement has also changed over time, and noted the changes and the chronology of changes. The Authority stated that after consideration of the Applicant’s account and the inconsistencies, it was willing to accept that the Applicant’s father may have been a BNP supporter, however that there was no evidence before it that the Applicant’s father had any active in BNP involvement, or any profile arising from this support. The Authority stated:
I consider the applicant has overstated his own interest in the BNP and his and his family’s BNP involvement. I am not satisfied that the applicant was ever an active or visible supporter of the BNP or that he attended processions or meetings occasionally such that he would be perceived to be a BNP supporter; nor am I satisfied that his brother is an active BNP member who organises meetings. I am also satisfied that the applicant was not considered by AL to be personally affiliated to or supportive of the BNP.
The Authority then turned to the Applicant’s account regarding the outbreak of fighting between BNP supporters and the AL in the bazaar in January 2013, observing that it was “brief and lacking in detail”. The Authority referred to DFAT information in some detail and other country information.
The Authority made further reference to country information. At [13] it found that given the AL’s ability to operate with a degree of impunity under the protection of the police, it considered it implausible that the BNP or AL would have approached the Applicant either to be a witness or to deter the Applicant from making a report to the police. The Authority stated that it was not satisfied that the Applicant, although seeing a political clash and witnessing a murder, was approached by the BNP to be a witness, or was threatened by the AL following the clash.
The Authority then recited the Applicant’s claim regarding the AL member who he said led the threats against the Applicant in 2013, then left Bangladesh and, returning in early 2017 to ask after the Applicant, on finding the Applicant was not there, erupted into an altercation during which his brother was hit with a stick in the eye and was blinded. At [15], the Authority stated that, given it did not accept that the Applicant was threatened by the AL in 2013, it did not accept that the same AL member came to the family home in 2017 asking after the Applicant. It did not accept the Applicant’s claim that the Applicant’s family was not targeted in the interim because the AL member was living overseas, saying:
If the family was of interest to the AL for any reason, I do not accept that they would have only approached the family after the AL member’s return to the village. I accept that the applicant’s brother may have suffered an injury to his eye, but given that I do not accept the applicant was of any interest or was threatened previously by AL I do not accept his brother was attacked by the AL for this or any other reason.
At [16], the Authority stated that after consideration of the Applicant’s account and country information, it accepted that his father may have been a “latent BNP supporter”. However, it did not accept that his brother is an active BNP member, or that the Applicant has been involved in any BNP activities, or has ever been an active BNP supporter.
Given the Authority’s findings regarding the Applicant’s lack of involvement and profile, the Authority was not satisfied that the Applicant was perceived to be a BNP supporter by the AL. The Authority accepted that the Applicant may have been working in the bazaar when there was a clash between AL and BNP, but given the implausibility of some aspects of his claim, and the lack of supporting evidence, it was not satisfied with the Applicant’s claims to have witnessed a murder, been approached by the BNP or threatened by AL, nor the claims regarding the AL’s visit looking for the Applicant in 2017. The Authority concluded that it was not satisfied that the Applicant was of any interest to the BNP or AL prior to his departure from Bangladesh.
Land dispute
At [17]-[19], the Authority considered the land dispute outlined in [7 (d)] of these reasons. The Authority referred to country information that land disputes were a major issue and are common everywhere. At [19], the Authority accepted that there may be an ongoing dispute between the Applicant’s father and his paternal uncles in relation to the allocation of the family land, but based on the Authority’s earlier findings, the Authority was not satisfied that the Applicant’s uncles took over a portion of the family land and changed the land title during the period of dispute. The Authority also stated at [19]:
Additionally the applicant has consistently stated that he worked with his father farming the family land and selling the produce until his departure and has not claimed at any time to have experienced any issues arising from the land dispute. I am satisfied that the applicant has not been threatened or harmed by anyone due to the family land dispute.
Visit by Bangladesh police
At [20]-[22], the Authority considered the visit to the Applicant’s father’s house by the Bangladesh police, and at [22] accepted that the police came to his father’s house in 2013 to verify the Applicant’s identity following an interview between the Applicant and Bangladeshi officials in Australia in May 2013. The Authority also accepted that the Applicant’s father was asked to pay a sum of money in exchange for the police providing a report which verified the Applicant’s identity.
The Authority then, under the heading of “Refugee Assessment”, considered and concluded in relation to the land dispute that it was not satisfied that the Applicant faced a real chance of any harm from family members or the government authorities, or any others, for reasons arising from that dispute.
In relation to the claim of being a murder witness and BNP supporter, the Authority, at [26]-[30], referred to what of the evidence it had accepted, and the respects in which it was not satisfied with the claims.
The Authority, whilst accepting that the Applicant witnessed a political clash between AL and the BNP in the bazaar near the Applicant’s shop and closed the shop as he feared being caught up in the violence, was not satisfied that the Applicant was of any interest to, or approached by, the BNP or AL prior to his departure from Bangladesh, or that the AL attacked the Applicant’s brother in 2017 (at [27]). The Authority stated:
Given the clash occurred over five years ago and was one of many such incidents of politically motivated violence which occurred in the lead up to the 2014 elections and during hartals, I am also not satisfied that the applicant would be of any interest to AL, mastaans or the BNP on return for this reason.
At [28], the Authority considered in some detail country information and observed, by reference to country information:
Most politically motivated violence occurs between political parties during times of political unrest particularly during national elections and hartals (strikes), with BNP leaders subjected to a high level of official discrimination during periods of heightened political tension, particularly national elections; and BNP supporters or members in rural areas are subjected to a low level of violence associated with AL extortion. High levels of political violence continued throughout 2016 and 2017, however the majority of the political violence involved intra-AL party clashes. AL-BNP inter-party violence is reported to have declined since the hartals of early 2014. DFAT assesses that AL, BNP and Jamaat‑e‑Islami members are subjected to a low level of inter-party violence but notes that AL activists or the Bangladeshi authorities are much more likely to pursue and harm prominent opposition leaders or opposition student and youth members rather than mere supporters or party function attendees.
By reference to DFAT reports in July 2016, the Authority stated that the report notes that AL activists or the Bangladeshi authorities are much more likely to pursue and harm prominent opposition leaders or opposition student and youth members, rather than mere supporters or party function attendees. I note that in addition to the DFAT country information, the Authority footnotes a range of other country information.
At [29], the Authority stated that although it accepted that his father may have been a BNP supporter, it was not satisfied that the Applicant’s father was an active supporter with any local profile, nor did it accept that his brother is an active BNP member, or that the Applicant has been involved in any BNP activities, or has ever been an active BNP supporter. It noted that there was no evidence of any family involvement in the BNP or in politics apart from his father’s mere support for BNP. It concluded that:
Given the applicant’s lack of any political involvement, the lack of any interest in the applicant by the AL prior to his departure, as well as his lengthy absence from his village and from Bangladesh since approximately 2013, I am not satisfied there is a real chance of him suffering any harm on return to Bangladesh from AL, the police or mastaans for this reason. The country information also does not indicate that relatives or associates of BNP supporters are targeted or harassed and I am also not satisfied that he would be targeted by AL due to any family associations with the BNP.
The Authority considered and dealt with each of the police visit, that the Applicant would be a returned asylum seeker and a person having illegally departed, whether the Applicant would face a real chance of harm on any of these grounds, and stated that it was not satisfied that the Applicant would suffer such harm. The Authority concluded that the Applicant did not meet the requirements of the definition of refugee in section 5H(1) of the Act, and did not meet the criteria of s.36(2)(a) of the Act.
Turning to complementary protection assessment, the Authority addressed the criterion for complementary protection assessment at [26]‑[28], first reciting the criterion, then the definition of significant harm under s.36(2)(a) of the Act. At [38], by reference to its anterior findings, and observing, by reference to the Full Federal Court decision in Minister for Immigration v SZQRB [2013] FCAFC 33; (2013) 210 FCR 505, that the real-risk test imposes the same standard as the real-chance test applicable to the assessment of well-founded fear, for the reasons the Authority had already stated, the Authority concluded that it was not satisfied that the Applicant faces a real risk of significant harm. At [39], the Authority concluded that the Applicant did not meet the criterion in s.36(2)(aa) of the Act. The Authority affirmed the Delegate’s decision.
Grounds of Review
The application for judicial review raises three grounds of review along with particulars, which particulars are set out in full in schedule 1 at the end of these reasons (unaltered). The three grounds of review are as follows (unaltered):
1. The IAA failed to engage with the Applicant's claim when conducting its inquisitorial inquiry.
2. The IAA failed to engage in active intellectual process in assessing the Applicant's claim under the complementary Protection ground.
3. The IAA failed to engage in genuine and realistic consideration of the Applicant's claim by failing to take into consideration of the Ministerial Direction No. 75 and failed to comply with the Direction and failed to mention in its decision.
Proceeding in this Court
Before me today, the Applicant appeared self-represented and was assisted by a Bengali interpreter. The Applicant was almost monosyllabic in engaging with the Court, but confirmed that he understood his grounds, and was ready to appear and make submissions today. He confirmed that he wished to proceed. He had come here to proceed. He brought a copy of the Court book, and had a copy of the application, and was provided by Mr Johnson (appearing for the Minister), with a further copy of the submissions filed and served by the Minister.
The Applicant submitted that his application for the Visa had been lodged over five years ago. The Applicant queried how, in those circumstances, could either the Delegate or the Authority make a decision so quickly. I understood him to be querying how the Delegate or Authority could make their decisions so promptly, given the lengthy time that had elapsed from his arrival until the Department interviewed him, and then, how could there be in turn such a quick decision by the Delegate, reference to the Authority, and decision by the Authority.
When pressed in relation to ground 1, the Applicant said he had a fear because he had been threatened by both parties - the AL and BNP, and his brother having his eye taken out and being threatened. He stated that the Court had everything he relied on, and he confirmed that there was no additional evidence he wished to rely on. On being pressed by me to say why his grounds of judicial review should be made out, the Applicant said that the documents are in his file, and what he said in his interview, and again, that they didn’t take any consideration, and just gave the decision.
In reply, the Applicant submitted that the current situation of his country is not good, and that the person who attacked his brother is looking for him. He submitted that if he goes home to his country he will not be safe, and that they are torturing his family, and he will be killed. The Applicant did not, substantiate any of these submissions with any evidence, either filed in accordance with the Court orders or otherwise.
Consideration of Grounds
Ground 1
Ground 1 has two aspects. First, that the Authority failed to engage with the Applicant’s claims that he had a political opinion against AL, submitting that holding a political opinion supporting the BNP should not be equated with a political opinion against the AL. Secondly, that the Authority failed to consider the Applicant’s claim that he is a member of a family unit of BNP supporters, and whether, as a member of a family unit of BNP supporters, the Applicant would face harm.
How the Applicant presented his claim to the Department in writing, and what he told the Delegate in his Visa interview, however, was not that he claimed harm because of a general perception to be opposed to the AL.
It is apparent that the Authority, at [11], took into account the Applicant’s claims regarding AL, and observed that the claims in relation to his and his family’s involvement with the BNP changed, over time. It is apparent that the Applicant only ever claimed harm from AL first, in relation to being a witness to a murder, and secondly, arising from his family’s involvement in, and support for, the BNP. The Authority found that the Applicant did not witness a murder, and did not accept that he or his brother were active supporters of the BNP. The Authority accepted, at most, that the father might have been a latent BNP supporter: see [16]. The Authority considered and reached findings that it was not satisfied, as I have said above, that the Applicant witnessed a murder, was approached by the BNP, or threatened by AL, nor that the AL came looking for the Applicant in 2017, or that the brother was attacked as a result.
I conclude that the Authority gave clear, cogent and considered reasons in rejecting the Applicant’s claims in connection with his asserted political profile. See at [15], where the Authority found that had the Applicant been of any interest to the AL, it would not only have approached his family after the AL member’s return to the village, but would have done so in-between times. The Authority properly considered and addressed the Applicant’s claims in this respect.
In respect of both parts of Ground 1 - both the claim raised of opposition to AL, and to be a member of a family unit of BNP supporters, the Authority addressed the claim as raised by the Applicant. The Authority is not required to expressly address a claim not expressly advanced or which does not squarely arise on the materials: NABE v Minister for Immigration(No. 2) [2004] FCAFC 263; (2004) 144 FCR 1.
In relation to the claim to be a member of the family unit of BNP supporters, I find that the Authority did consider, and save for accepting that the father was a latent BNP supporter, rejected the Applicant’s claims of political association with the BNP, either directly or through family members. As I have said above, the Authority found that the Applicant had overstated his own interest and his family’s interest: see at [11].
I conclude that the Authority did not need to go further. I have concluded that in relation to Ground 1, particulars (a) and (b), no error is established by the Authority’s decision.
Ground 2
Ground 2 raises two matters. First, at Ground 2(a), the Applicant contends that the Authority did not engage intellectually with his claim that he faced degrading, inhuman or cruel treatment. However, at [38] the Authority relied on its findings made in relation to the refugee claims in concluding that it was not satisfied that the Applicant faced a real risk of significant harm for the purposes of s.36(2)(aa) of the Act. It was available to the Authority to express its reasons in this way, by reference to its anterior findings: MZYXS v Minister for Immigration [2013] FCA 614, particularly at [31].
Secondly, at Ground 2(b) the Applicant has said that he fears from organised crime syndicates in Bangladesh, and that the Authority failed to consider this claim under the complementary protection ground. However, as I have said, at [38] the Authority referred to and relied on its consideration and its findings in relation to the refugee ground. By reference to [27] and [29] of the Authority’s decision, I find that the Authority expressly referred to the claim to fear harm from syndicates (mastaans), and that the Authority rejected that claim, giving reasons.
The Applicant expressed his claim to fear harm from the syndicates as directly connected to his claim of having witnessed the murder, and to have been at risk from the AL. The Authority had rejected these claims, and I find that it did so on reasons that were open to it. I conclude in relation to Ground 2, both particularised paragraphs (a) and (b), that the Authority’s reasons do not reveal any jurisdictional error. Ground 2 is not established.
Ground 3
Ground 3 asserts that the Authority failed to engage in genuine and realistic consideration of his claims by failing to take into account Ministerial Direction No 75.
At paragraph (a) of the particulars in relation to this Ground, the Applicant asserts that the Authority failed to comply with Ministerial Direction No 75, and to have reference to PAM guidelines. Ministerial Direction No 75 is irrelevant. It relates to decision-making under s.65 of the Act, which is not what the Authority does. Even if it did apply to the Authority’s decision-making power, the Ministerial Direction No 75 subject matter is not relevant to this case as it refers to a refusal of protection visas relying on ss.36(1C) and ss.36(2C)(b) of the Act, neither of which are applicable to the Applicant’s circumstances.
Mr Johnson for the Minister beneficially suggests that the Applicant may have intended to refer to Ministerial Direction No 56 which would apply to the Delegate’s decision, however, the Authority is not so bound. Ministerial Direction No 56 guides decision-makers performing functions or exercising powers under ss.65, 414, or 415 of the Act when considering an application for grant of a protection visa, and when reviewing a decision to refuse to grant a protection visa.
The Authority’s decision-making power, however, arises under s.473CC of the Act, not s.65 of the Act: see the decision of Judge Smith of this Court in DTH17 v Minister for Immigration [2018] FCCA 729 at [36].
The Applicant asserts in particular (b) that the Authority made a jurisdictional error by failing to obtain and rely upon a more recent DFAT report. The Applicant refers to and cites extracts from a report dated 2 February 2018.
Under Part 7AA of the Act, the Authority, is subject to strict requirements as to what documents it can and cannot consider. Pursuant to s.473DB(1) of the Act, the Authority is to consider and review material provided to it under s.473CB of the Act. That is, as provided by the Secretary. It is not required to accept or request new information, nor to interview the referred applicant. Given the time at which the Delegate’s decision was made, 14 December 2017, and when the Secretary referred the decision and review material to the Authority, namely on 19 December 2017, it is apparent that the Secretary did not have the 2018 DFAT report available to it.
The way Ground 3 is articulated, the Applicant claims that the Authority failed to consider the report, which at least implicitly carries with it an assertion that the Authority had that report before it, which given that timing, it did not have. The Authority does not have a duty to get, request, or accept new information. The Minister refers to DBA16 v Minister for Immigration [2017] FCA 1580 at [25]-[28] in that regard. However, as Mr Johnson accepts, the Authority has a duty to exercise its powers reasonably, and to consider exercising its powers reasonably, including its power to obtain new information under section 473DC(1) of the Act.
The Minister, in support of the proposition that it is well-established that the selection of and weight to be given to country information is a matter within the jurisdiction of the decision-maker, refers to NAHI v Minister for Immigration [2004] FCAFC 10. As Judge Driver recently observed in BDI17v Minister for Immigration [2018] FCCA 2162:
[64] Whilst s.473DC(1) of the Migration Act states that the Authority may get new information, s.473DC(2) makes clear that the Authority “does not have a duty to get, request or accept, any new information”.
The Full Court of the Federal Court considered the reasonableness of the Authority’s exercise of its power to consider whether to obtain new information in Minister for Immigration v CRY16 [2017] FCAFC 210; (2017) 253 FCR 475, in which case the Authority failed to consider whether to invite the referred applicant to give new information on a relevant issue. Paraphrasing the observations of Judge Driver, in BDI17 at [70], whether it is a jurisdictional error for the Authority to fail to consider getting any updated DFAT report on the country of reference is a question dependant on the circumstances of the particular case.
In the present case, and distinguishable from the circumstances before Judge Driver in BDI17, the extract of the 2018 DFAT report to which the Applicant specifically refers describes a security situation which the Authority has taken into account, and had already had regard by reference to the country information before it: see particularly at [28], to which I have referred above. The country information there referred to is, in substance, what is now referred to by the Applicant in Ground 3(b). I do not consider the reference at [28] to be time limited. The reference to national elections identifies a volatility in the security situation in Bangladesh over time.
I consider that the facts before me and the conclusion I reach in this case differ from the facts before, and the conclusions reached by, Judge Driver in BDI17. First, having regard to the DFAT extract. It cannot be said that there is anything significant in that country information differing from the country information that the Authority did refer to. Secondly, it cannot be said that the failure to locate and refer to the 2018 DFAT report was unreasonable. This is because the Applicant did not claim to fear harm due to general Bangladeshi unrest. He did not claim to be involved in BNP activities at any greater degree than having participated in occasional meetings and processions, or otherwise than through his father’s alleged BNP support and his brother being an active BNP member (according to a post-interview submission by his then-migration agent on 11 September 2017). He put his brother in a more active position than himself. The claims of involvement were both addressed and rejected by the Authority.
I consider that the Authority did not act unreasonably in failing to exercise its power to get a more recent DFAT report, even if it could be said – and I am not convinced – that it was practicable in the time available for the Authority to become aware of it, and reasonably practicable to obtain the report. I have concluded that the circumstances of the present case are distinguishable from those considered by Judge Driver in BDI17. Additionally, even if, contrary to my conclusions, it could be said that the Authority acted unreasonably in not considering getting any updated DFAT report, in my discretion I would not grant relief given the extract from the 2018 report on which the Applicant relies in Ground 3(b) does not disclose any significant change in the situation considered by the Authority. It follows that Ground 3 is not established.
Conclusion
I dismiss the Application, with costs.
I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Judge Baird
Date: 20 December 2018
Schedule 1
Particulars of Grounds of Review
The IAA failed to engage with the applicant's claim when conducting its inquisitorial inquiry.
(a)The applicant noted in his evidence to the Department of Home Affairs (Para 11 of the IAA decision) that the Awami League perceive that he is against the Awami League. The IAA failed to consider the applicant claim (at least imputed) that he holds or perceived to be holding a political opinion against the Awami League. It should be noted that holding a political opinion supporting the BNP should not be equated with a political opinion against the Awami League because it is a totally a separate claim (holding political against the Awami League)
(b)The IAA failed to consider the applicant's claim that he is a member of a family unit of the BNP supporters. The IAA accepted or at least adverted that the applicant's father is a supporter of the BNP. However, the IAA failed to consider whether as a member of a family unit of BNP supporters, the applicant would face harm.
The IAA failed to engage in active intellectual process in assessing the applicant's claim under the complementary Protection ground.
(a)The IAA though adverted some of the claims (See IAA decision para 38) but did not adequately engage in assessing whether the applicant would face degrading, inhuman or cruel treatment if returned to Bangladesh. The IAA simply said that since the applicant would not face a real chance of harm, he would not face a real risk of significant harm without engaging with the claims under the complementary Protection ground.
(b)The applicant said that he fears from organized crime Syndicates in Bangladesh. The IAA failed to consider this particular claim under the Complementary Protection ground. There is no evidence in the IAA decision that it has adverted and assessed the above claim under the Complementary Protection ground.
The IAA failed to engage in genuine and realistic consideration of the applicant's claim by failing to take into consideration of the Ministerial Direction No. 75 and failed to comply with the Direction and failed to mention in its decision.
(a)The IAA is required to take account of policy guidelines prepared by the Department of Immigration- PAM in accordance with Ministerial Direction No.75, made under s.499 of the Act. The Tribunal failed to mention in its decision that it would take into account of policy guidelines prepared by the Department of Immigration - PAM in accordance with Ministerial Direction No.75, made under s.499 of the Act including the DFAT report. Therefore, it is clear that the IAA failed in its legal duty which would render the IAA decision void.
(b)The IAA failed to consider the latest DFAT report dated 02 February 2018 when assessing the applicant's claim to assess whether he would face serious or significant harm if he returned to Bangladesh now or in a foreseeable future and therefore, it failed to engage in genuine and realistic consideration of the applicant's claim with the most recent country report prepared by the DFAT.
(c)In its most recent DFAT report dated 02 February 2018, the DFAT relevantly noted that "the security situation in Bangladesh is volatile and can deteriorate quickly with little warning. Security threats include politically-motivated violence, particularly ahead of the next national elections in late 2018 or early 2019." (See DFAT country report dated 02 February 2018 para 2.29). This is a very significant observation by the DF AT which deals with worsening of general country situation due to the next election scheduled in late 2018 or early 2019. It should be noted that the Tribunal has accepted that the applicant's father is a supporter of the BNP. The above significant observation of the DFAT is relevant because as a member of a family unit of the BNP supporter, there is a real risk that he would face serious or significant harm at least on the basis of his connection with the family of BNP supporters due to the next election which would occur in a near foreseeable future.
(d)By failing to consider the latest DFAT report dated 02 February 2018, the IAA failed to give adequate consideration to the applicant's claim.
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