DBY16 v Minister for Immigration

[2017] FCCA 1183

FEDERAL CIRCUIT COURT OF AUSTRALIA

DBY16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1183

Catchwords:
MIGRATION – Application for judicial review – application summarily dismissed.

Legislation:

Migration Act 1958 (Cth) ss.36(2)(a), 45AA

Migration Regulations 1994 (Cth) reg. 2.08F

Cases cited:
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40

Applicant: DBY16

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 973 of 2016

Judgment of: Judge Jarrett

Hearing date: 24 April 2017

Date of Last Submission: 24 April 2017

Delivered at: Brisbane

Delivered on: 24 April 2017

REPRESENTATION

Counsel for the Applicant: Ms C.E. McConaghy

Solicitors for the Applicant: HopgoodGanim Lawyers

Counsel for the First Respondent: Mr J.D. Byrnes

Solicitors for the First Respondent: Clayton Utz

The Second Respondent entered a submitting appearance

ORDERS

1. The application for review filed on 17 February, 2017 be dismissed.

2. The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $7,206. 

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 973 of 2016

DBY16

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal that affirmed a decision of a delegate of the first respondent to refuse the applicant a Temporary Protection (Class XD) visa. 

2. The applicant is a Bangladeshi national.  He is an ethnic Bengali and a Sunni Muslim.  He left Bangladesh in December, 2012 by boat without authorisation of the Bangladesh authorities.  He arrived in Australia on 20 March, 2013.  On 20 June, 2013 he applied for a Protection (Class XA) visa through his migration agent.  A delegate of the first respondent refused that application on 30 December, 2014. 

3. On 29 January, 2015 the applicant applied to the Tribunal for review of the delegate’s decision. The applicant initially applied for a protection visa, but because of the operation of s.45AA of the Migration Act1958 and regulation 2.08F of the Migration Regulations 1994 (Cth), he was taken to have made a valid application for a Temporary Protection (Class XD) visa. The Tribunal proceeded on that basis.

4. Hearings were held before the Tribunal on 11 February, 2016 and 25 August, 2016 because the Tribunal could not make a decision on the application in favour of the applicant on the material that it had before it. 

5. On 11 October, 2016 the Tribunal set aside the decision of the delegate to refuse to grant the applicant a Protection (Class XA) visa and substituted a decision to refuse to grant the applicant a Temporary Protection (Class XD) visa.  No issue was taken by the applicant with any of that. 

6. The applicant’s claims to attract Australia’s protection obligations rest in the notion that he has a well-founded fear of persecution by reason of his political opinion, if he were to be returned to Bangladesh.  He claims to fear harm if he returns to Bangladesh because of his association with the Bangladesh National Party, or the BNP. 

7. His brother was a local leader of the BNP at some point and he and his family have been supporters generally of the BNP.  He also pointed out to the Tribunal that there was a land dispute with, seemingly, a neighbour who was linked to the ruling Awami League, and that led to harassment, physical clashes and extortion between the Awami League landowner and his family.  He claimed that there were ongoing difficulties between the families.  The applicant’s claim was that he feared harm, physical harm – persecution, from Awami League activists or members, or the Bangladeshi authorities.  He claimed that they would detain, torture, extort, abuse and/or kill him if he goes back to Bangladesh.  He also claimed to fear harm as a failed asylum seeker. 

8. The Tribunal considered each of those claims.  It accepted that the applicant’s brother had held a leadership position in the BNP.  It accepted his claims that he and his family supported the BNP, but that the applicant himself was only a low-level supporter.  The Tribunal was unpersuaded and indeed it was not the applicant’s case it seems, that he had any leadership or managerial or promotional position in the political party.

9. The Tribunal made some adverse credit assessments of the applicant.  It expressed in its decision that it had some broad concerns with the applicant’s credibility and formed the view that he tended to draw on established facts and exaggerated those to form the basis for his protection claims.  The Tribunal did not accept that the applicant’s association with his brother gave him any particular elevated profile in the BNP.  

10. The Tribunal assessed the claims that arose out of the property dispute with the applicant’s family’s neighbour.  The Tribunal expressed some concern about the claim and set out its reasons for its scepticism about that.  But it accepted that the applicant’s family owned property and there had been some kind of dispute.  It did not accept that the dispute escalated into broader conflict or had taken on a political character. 

11. The Tribunal assessed the applicant’s claims that the Awami League pursued the applicant and his family through continual harassment, mainly due to his brother’s continued BNP membership.  The applicant brought to the Tribunal’s attention a number of incidents he says occurred over a period of about two years or so where Awami League activists claimed to have visited the applicant’s family home, demanded money and threatened his family members.  The Tribunal expressed significant doubts about those claims and thought that they were “problematic”.  The Tribunal did not consider that it was likely that any harassment or adverse attention, to which the applicant’s family had been subjected by reason of the land dispute and the neighbour, was related to their political affiliations. 

12. The Tribunal considered information – referred to in the reasons as country information – before it and concluded that there was evidence that tended to suggest that there were generally high levels of political violence in Bangladesh, both between and within the major parties.  The Tribunal referred to the most recent country report and referred to it, as counsel for the Minister has pointed out, extensively throughout the Tribunal’s reasons.

13. By this application the applicant relies on two grounds of review. The grounds are developed in the written submissions for the applicant. The first is that the Tribunal fell into jurisdictional error by deciding that the threshold requirements under s.36(2)(a) of the Act had not been met based on a misconstruction of the expression “political opinion” in article 1A of the Refugees Convention. It is as well to remind myself that, according to the Convention, a refugee is any person who:

    …owing to a well-found fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country;  or who, not having a nationality and being outside the country of his former habitual residence… is unable or, owing to such fear, is unwilling to return to it. 

1. As the applicant points out here, the Tribunal accepted that the applicant, his brother and his other family members were at least in favour of the BNP, and as such there was a perception that they would be at risk of harm by reason of the generalised political violence that existed and exists in Bangladesh.  But that is not the end of the matter.  The Tribunal determined that the applicant did not have some elevated political profile, or any political profile at all.  It also used the phrase “adverse political profile” when describing the applicant and his support for the BNP. 

2. The applicant complains in this application that by making those references and by approaching the task by reference to whether the applicant had some elevated political profile, it was narrowing the test that is to be applied for the purposes of both s.36(2)(a) and the Refugees Convention.

3. It is right to say, as the applicant says, that the phrase “political opinion” as used in the Refugees Convention is a broad one.  It is not limited to membership of a particular political party or support for a particular party or a leader, as the authorities demonstrate. 

4. Here, the Tribunal has determined that the applicant has a particular political opinion.  That is to say, he was in favour of a particular party.  But that of itself says nothing about whether he had a well-founded fear of persecution by reason of that political opinion.  The Tribunal considered this matter at paragraphs 70 through to 73 of its reasons and concluded as follows (footnotes omitted):

   70.    The applicant claims to have a well-founded fear of persecution arising from the following:  (a) Solomon’s high level involvement with the BNP;  (b) the applicant’s family traditional support for the BNP ;  (c) the applicant’s support for the BNP;  and (d) the applicant association with his family and Solomon.

   71.    As noted above, the Tribunal accepts that the applicant and his family prefer the BNP and his brother Solomon may have been a BNP member up to 2006 when he left Bangladesh to live and work in Saudi Arabia.  It accepts that the applicant’s family might have a land dispute with neighbours and that the family business may have had to pay some protection money or bribes, perhaps to AL Cadres.  However, the Tribunal does not accept that these circumstances were for political reasons or that they involved harm amount to persecution.  The Tribunal has rejected all of the applicant’s other claims, including that AL Cadres and/or the disgruntled neighbour regularly extorted large sums from the applicant’s family;  that they terrorised the family in their home and that they provoked the applicant into fighting with Mujumba’s son, resulting in demands for revenge.  It also does not accept that the applicant is subject to ongoing adverse interest from AL cadres, the neighbours or anyone else for reasons of their support of the BNP, any land dispute, personal issues such as fights, or any related matter.

   72.
   and this is the important paragraph:

The Tribunal has found nothing to suggest that merely preferring the BNP over the AL gives rise to a real chance of persecution on political grounds.  Its assessment above of the applicant’s past experiences and its findings lead it to conclude that he has no adverse profile for political or other convention-related reasons. 

1. The Tribunal did not accept that if the applicant returned to Bangladesh now or in the reasonably foreseeable future that there was a real chance that he would face serious harm amounting to persecution for reason of the fact that he might prefer the BNP, or any other association through his family. In those circumstances, the Tribunal determined that for those reasons no ground for the interference with the delegate’s decision under s.36(2)(a) was made out.

2. As the Tribunal’s decision and reasons make clear, it was for the applicant to establish that there was a real chance of persecution on political grounds; that is, that he had a well-founded fear of persecution by reason of his political opinion.  That required two things of the Tribunal, at least.  The first was a determination as to whether the applicant held a political opinion.  It found that fact in his favour.  The second was whether he had a well-founded fear of persecution by reason of that political opinion.  The Tribunal was not satisfied that his fear of persecution was well-founded. 

3. It might well have been the case that there was material before the Tribunal that might have led to a different conclusion, but that is not the test.  It is for the Tribunal to make the findings of fact that need to be made on the application before it.  The Tribunal found the facts, and there is nothing that appears from the Tribunal’s reasons, and nothing that appears from argument before me, that suggests that the Tribunal’s fact-finding in those respects was illogical or irrational or that the result arrived at by the Tribunal was otherwise unreasonable. 

4. In my view, the first ground does not reveal any jurisdictional error on the part of the Tribunal. 

5. The second ground is to the effect that the Tribunal fell into error because it failed to take into account a relevant consideration. 

6. As counsel for the respondent pointed out, to succeed on such a ground it is generally necessary to demonstrate that the material that was not taken into account was material that the Tribunal or body was otherwise required to take into account, that it was, to use the words of Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40, I think, a mandatory consideration. Here, the only mandatory consideration was the taking into account of the latest country report in respect of Bangladesh. That seems to have been made mandatory by the ministerial direction referred to in argument.

7. But the reasons of the Tribunal make it clear that the Tribunal took that country information - the relevant country report – into account.  What the Tribunal does with the information before it, how it uses it, what weight it gives it and what influence it might be permitted to have on the Tribunal’s determinations, are matters entirely for the Tribunal.  It is not something, generally speaking, in respect of which this Court can interfere. 

8. Nothing has been demonstrated in argument which would suggest that the Tribunal has fallen into jurisdictional error by failing to take into account a relevant consideration.

9. The information taken into account by the Tribunal was used by it in the way in which the Tribunal saw fit.  And there is no reason to think that that led the Tribunal into jurisdictional error.  

10. In those circumstances, the application for review must be dismissed, with costs. 

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 24 April, 2017.

Date: 1 June, 2017