BIY17 and Anor v Minister for Immigration and Anor

[2018] FCCA 2076

FEDERAL CIRCUIT COURT OF AUSTRALIA

BIY17 & ANOR v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2076

Catchwords:
MIGRATION – Protection visa applications – review of decision of Administrative Appeals Tribunal – whether the Tribunal erred by failing to consider whether the second applicant would be subjected to sexual harassment or assault on return to Bangladesh – whether the Tribunal erred by failing to consider the first applicant’s imputed political opinion – no jurisdictional error – application dismissed.

PRACTICE & PROCEDURE – Leave sought by applicants to amend their application to include a ground that the Administrative Appeals Tribunal failed to consider claim against the Awami League – leave granted.

Legislation:

Migration Act 1958 (Cth)

Cases:

WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 236 FCR 593

First Applicant: BIY17

Second Applicant: BIZ17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 973 of 2017

Judgment of: Judge Smith

Hearing date: 3 July 2018

Date of Last Submission: 3 July 2018

Delivered at: Sydney

Delivered on: 3 July 2018

REPRESENTATION

The first applicant appeared in person.

Counsel for the First Respondent: Mr M Smith

Solicitors for the Respondents: Mills Oakley

ORDERS

1. The application be dismissed.

2. The applicants pay the first respondent’s costs fixed in the amount of $5,400.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 973 of 2017

BIY17

First Applicant

BIZ17

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Extempore and Revised)

1. The applicants seek judicial review of a decision of the Administrative Appeals Tribunal made on 6 March 2017.  The applicants contend that the Tribunal failed to consider a number of claims made by them.  In order to assess those arguments, it is necessary to outline briefly the applicants’ claims to be owed protection by Australia, as well as the Tribunal’s findings of fact. 

2. The applicants are citizens of Bangladesh and are husband and wife.  They lodged an application for a protection visa on 15 December 2014.  The claims made at that stage were made by the husband and I will refer to him as the applicant.

3. In essence, the applicant’s claims were that he feared harm in Bangladesh because of his ethnicity as a Bihari.  Biharis are a group of people stranded in Bangladesh at the time of its independence in 1971.  The applicant also claimed to fear harm on the basis that he was a successful businessman.  On 3 July 2015, a delegate of the Minister made a decision to refuse to grant the applicants protection visas.

4. The applicants then applied to the Tribunal for a review of that decision.  The Tribunal held two hearings: the first on 8 November 2016 and the second on 7 December 2016.  The applicant attended both of those hearings and his wife attended the second of them.  The Tribunal handed down its decision on 6 March 2017. 

5. In broad terms, the Tribunal rejected the applicant’s claims because it found that the applicant was not a credible witness.  It did not accept that he was a Bihari and while it did accept that he had been a businessman in Bangladesh, it did not accept that he had faced or would face any harm as a consequence of that. The Tribunal concluded that there was no real risk that either of the applicants would be subjected to significant or serious harm upon return to Bangladesh. 

6. There was one ground in the application filed by the applicants, namely, that the Tribunal failed to consider the claim that the second applicant, the applicant’s wife, would suffer sexual harassment and assault.  By leave granted at the hearing, the applicants also relied upon a second ground, namely, that the Tribunal failed to consider the applicant’s actual political opinion against the Awami League (AL)[1].

   [1] Bangladesh Awami League is one of the 2 major political parties in Bangladesh.

7. In their written submissions, the applicants also claimed that the Tribunal failed to consider the applicant’s imputed political opinion as supporting the Jamaat[2] and as a Rajakar[3].  It is well established that the failure by the Tribunal to consider a claim that arises on the material, or is expressly made by an applicant, may constitute jurisdictional error. However, it is not every failure to refer to a claim that will constitute such an error.  For example, where a claim is referred to in the Tribunal’s reasons and where it has been subsumed in findings of greater generality or a factual premise upon which it is based has been rejected, there will be no such error:  see WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 236 FCR 593at [47].

   [2] Bangladesh Jamaat-e-Islami, previously known as Jamaat-e-Islami Bangladesh or Jamaat is the largest Islamist political party in Bangladesh. The Supreme Court of Bangladesh made a ruling that the party was unfit to contest national elections on 1 August 2013.

   [3] An East Pakistani paramilitary force that aided the Pakistan Army during the Bangladesh Liberation War. In the Bengali language “razakar” can also be a pejorative term akin to the word traitor or Judas.

8. The claim which is the subject of the first ground was made in a statutory declaration made by the applicant on 1 March 2017.  At [7] of that declaration, the applicant stated:

   Accordingly, my wife and I would be targeted and would face degrading, inhuman and cruel treatment in Bangladesh.  I also fear that my wife would be subjected to sexual harassment and assault due to my issues.

9. The issues referred to in that claim are those summarised in [4] and [5] of the statutory declaration.  They essentially are based upon the applicant’s Bihari ethnicity and the perception that the applicant would hold a particular political opinion and in addition to that reason, the applicant would be targeted, abducted and subject to extortion by the AL and affiliated criminal gangs.  Those claims were summarised in a submission by the applicant’s lawyers dated 3 November 2016 (see page 214 of Exhibit A, also summarised in a statutory declaration made by the applicant on 3 November 2016 at [24]). They are also a distillation of the claims made earlier by the applicant in support of his protection visa application, both in writing and before the delegate (see pages 99 and 146 of Exhibit A). 

10. In its statement of reasons, the Tribunal expressly referred to the claim concerning the applicant’s wife at [32]. At [71], the Tribunal rejected the applicant’s claims based upon his Bihari ethnicity and at [72] expressly rejected the claim that the applicant’s wife would be harmed on that basis.

11. The Tribunal at [73], records that it had rejected other claims concerning extortion and threats on account of wealth, business success and Bihari ethnicity.  At [77], the Tribunal rejects each of the applicant’s claims and at [79] makes an express finding that it was not satisfied that there was a real risk that either of the applicants would be subjected to significant harm upon return to Bangladesh.  There is no reason not to read the reference to significant harm as to include a consideration of serious harm, given the balance of the Tribunal’s reasons.

12. In combination then, the Tribunal’s findings dealt, both expressly and by implication, with the claim the subject of the first ground.  The first ground is rejected. 

13. The second ground relies on the assertion that the Tribunal failed to consider the claim that the applicant held an actual political opinion, as opposed to a perceived political opinion.  However, no such claim was made.  In each of the statutory declarations, submissions and other forms of evidence given by the applicant, he consistently stated that he would be perceived to hold a political opinion for reason of his ethnicity. Not once did he say that he actually held such an opinion.  In those circumstances, the Tribunal was under no obligation to consider the possibility that the applicant might face harm for reasons of his actual political opinion. 

14. The second part of the second ground is the assertion that the Tribunal did not consider whether the applicant would face harm for his imputed political opinion supporting the Jamaat and as a Rajakar.  At [71] of the Tribunal’s reasons, it expressly rejected the claim to fear harm as a result of a perception that the applicant supported the Jamaat.

15. The applicant’s claim concerning his perception as a Rajakar, or as otherwise spelt Razakar, was made at the interview with the delegate on 30 June 2015.  There it is noted that the applicant claimed that in mid-2014 his neighbours had informed the authorities that he was a Razakar, a war criminal.  The Tribunal at [69] of its reasons, expressly dealt with that claim and rejected it.  The Tribunal stated that it did not accept that the neighbours or Feroz informed the RAB (the Rapid Action Battalion) that the applicant husband is a war criminal or Razakar.

16. In light of those findings, the assertion that the Tribunal failed to consider those claims must be rejected.  Ground 2 of the application is rejected. 

Conclusion

1. The applicant has failed to establish that the Tribunal’s decision was affected by jurisdictional error.  In his oral submissions today, he addressed questions which might affect the merits of the Tribunal’s decision but did not say anything about the Tribunal’s reasons for its decision. 

2. The application must be dismissed.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Smith

Date:       31 July 2018