DCW16 v Minister for Immigration

[2017] FCCA 1234

FEDERAL CIRCUIT COURT OF AUSTRALIA

DCW16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1234

Catchwords:
MIGRATION – Protection (Class XA) visa – whether refugee review tribunal’s decision affected by jurisdictional error – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.5H, 5J, 36(2)(a)

Cases cited:

S395/2002 v MIMA (2003) 216 CLR 473

Applicant: DCW16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 982 of 2016

Judgment of: Judge Jarrett

Hearing date: 13 April 2017

Date of Last Submission: 13 April 2017

Delivered at: Brisbane

Delivered on: 8 June 2017

REPRESENTATION

Counsel for the Applicant: Mr Quinn

Solicitors for the Applicant: Hopgood Ganim Solicitors

Counsel for the First Respondent: Mr Byrnes

Solicitors for the First Respondent: Clayton Utz

The Second Respondent entering a submitting appearance

ORDERS

1. The further amended application filed on 21 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 982 of 2016

DCW16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. By this application the applicant challenges a decision of the Administrative Appeals Tribunal which affirmed a decision of a delegate of the first respondent to refuse the applicant a protection (Class XA) visa.

2. The applicant has filed a further amended application for review in which he particularises his grounds of review.  Both parties have filed written submissions to which I have had regard.

Background

1. The applicant is a citizen of Bangladesh, is an ethnic Bengali and Sunni Muslim.  He left Bangladesh in January, 2013 by boat and arrived in Australia without authorisation on 28 February, 2013.

2. On 16 July, 2013 he applied for a protection (Class XA) visa.  On 10 October, 2014 a delegate of the first respondent refused that application. 

3. The applicant applied for a review of that decision by the Administrative Appeals Tribunal on 21 October, 2014.  The Tribunal held hearings on 27 January, 2016 and 23 and 26 August, 2016.  The applicant appeared before the Tribunal with the assistance of an interpreter in the Bengali and English languages.  He was represented by a registered migration agent. 

4. The applicant claimed to fear harm if he returned to Bangladesh based on his political opinion.  He claimed that he was in favour of Jamaat-e-Islami.  He claimed that he would be taken to be pro-Bangladesh Nationalist Party and imputed with that pro-BNP opinion.  He claimed that he was opposed to the ruling Awami League.  He claimed to fear harm from Awami League activists or thugs acting on behalf of the Awami League.  The applicant had claimed that he had been involved in Jamaat-e-Islami initially through the Islamic Chhatra Shibir (the student wing of Jamaat-e-Islami) and that he had supported Jamaat-e-Islami’s coalition partner, the Bangladesh National Party.  He gave examples of his activities in support of those organisations which included attending local meetings, participating in processions, distributing letters and calling on persons during elections to encourage them to vote for Jamaat-e-Islami.  He was not, however, a member of that political party. 

5. The Tribunal did not accept the applicant’s claims.  The Tribunal was sceptical about the extent to which the applicant was engaged in the political process in Bangladesh particularly given that he was neither a member of Jamaat-e-Islami or that he was enrolled to vote.  The Tribunal questioned the applicant about his support for Jamaat-e-Islami while he was in Australia but the applicant told the Tribunal that he had not been in contact with any members at the time of the decision and explained that he had not done so because he thought it could reignite memories of his past in Bangladesh and induce more anxiety.  The Tribunal was sceptical about that explanation.

6. The Tribunal found that having regard to the applicants vague claims he was at most a low level supporter of Jamaat-e-Islami and the Tribunal did not accept that he was engaged in organising and assisting with processions, rallies or meetings as he had claimed.  The Tribunal did not accept that the Awami League or anyone else perceived him as being a committed Jamaat-e-Islami supporter or activist.

7. In support of his claims, the applicant asserted that he had suffered an attack with knives and sticks in late 2010 at the hands of Awami League activists.  The Tribunal, however, did not accept his claims about that.  The applicant himself did not know the identity of his attackers and only speculated that they were Awami League activists because, he asserted, they knew he was “doing JI politics”.  He told the Tribunal that after the attack he went into hiding for two years but the Tribunal did not accept that claim either.  Whilst the Tribunal thought that the applicant might be drawing on an incident that he had experienced in the past it did not accept that Awami League activists had attacked him because of his support for Jamaat-e-Islami or any other political reason.  The Tribunal found it difficult to imagine that the applicant attracted the adverse attention of the Awami League any more than his other family members did who continued to live in his home village.

8. The applicant had claimed that Awami League activists had threatened him in late 2011 or early 2012 and that he had been arrested by police and briefly detained.  The Tribunal, however, did not accept those claims.  Further, it did not accept that his family had been mistreated or threatened since the applicant had left Bangladesh in early 2013.

9. The Tribunal concluded that the applicant did not have a well-founded fear of convention related persecution now or in the future.  It formed the view that he was not and would not be of adverse interest to the Bangladeshi authorities or the Awami League.  For similar reasons, the Tribunal was not satisfied that the applicant met the complimentary protection criteria.

10. On 6 October, 2016 the Tribunal affirmed the decision of the delegate not to grant the applicant a protection visa. 

The Grounds of Review

1. In his further amended application, the applicant sets out four grounds of review. The final ground in the applicant’s further amended application for review was abandoned.  I will deal with each of the remaining grounds separately.

Ground 1 – misconstruction of the expression of “political opinion” in Article 1A of the Refugees Convention

1. The applicant argues that the Tribunal fell into jurisdictional error by deciding that the threshold requirements of s.36(2)(a) of the Migration Act 1958 had not been met based on a misconstruction of the expression political opinion in Article 1A of the Refugees Convention.  The applicant argues that Article 1A(2) of the Refugees Convention defines a refugee as someone who has a fear of persecution for reasons of membership of a particular social group or political opinion.  He argues that he does not require an applicant to be more than a “low level supporter of a political party” nor does it require engagement in a “wider range” of political activities.  The applicant points to authorities which establish the following propositions:

   a)the expression political opinion is not limited to “membership of a particular political party or support for a particular party or leader”;

   b)political opinions maybe diverse, imprecise and idiosyncratic; and

   c)a person need not hold a particular political opinion in order to meet the definition of refugee under the Refugees Convention.  It will be sufficient that the person is merely imputed with political opinion by the persecutor.

2. The applicant argues that he did not seek his protection visa on the basis that he was a high level supporter of Jamaat-e-Islami.  His claim was that he feared harm if he returned to Bangladesh based on his political opinion which was in favour of Jamaat-e-Islami, he would be cast with an imputed pro-BNP opinion and that he was opposed to the ruling Awami League. 

3. The applicant argues that the Tribunal fell into error by applying a narrow interpretation of political opinion and applying a test which “exceeds that requirement by Article 1A(2) of the Refugees Convention”.

4. The applicant’s reference to the Refugees Convention is not to the point.  To establish an entitlement to a protection visa, the applicant needed to, amongst other things, satisfy the Tribunal that he was a refugee: s.36(2)(a) of the Migration Act 1958 (Cth). Relevantly for the present proceedings, refugee is defined in s.5H of the Act to be a person who is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country.  The phrase well- founded fear of persecution is defined in s.5J of the Act.

5. As the Tribunal’s reasons made clear, its consideration of the nature and extent of the applicant’s involvement in political activities in support of Jamaat-e-Islami was necessary so that the Tribunal could reach a conclusion about whether the applicant had a well-founded fear of persecution.  That his fear of persecution upon return to Bangladesh was well-founded was a function of his political activism and involvement.  However, the Tribunal determined that his involvement in politics was not as extensive as the applicant claimed that it had been.  In those circumstances, whilst the Tribunal was of the view that the applicant might be seen as a low level support of Jamaat-e-Islami, it assessed that he did not have a well-founded fear of persecution.

6. As the first respondent submits, the Tribunal was not operating under any misapprehension.  Rather, it was preceding on the basis that low level support or activities could evidence a political opinion or be evidence of same or it could lead to the imputation to the applicant of a political opinion in support of Jamaat-e-Islami or the Bangladesh National Party.  The Tribunal decided that the applicant had a political opinion by reference to his claims of support for Jamaat-e-Islami.  It did not reject his claim that he held a political opinion which was in opposition to the ruling Awami League.  The applicant’s argument proceeds on the basis that having established that he held a political opinion which was opposed to the ruling Awami League, it must follow that he had a well-founded fear of persecution for a convention reason. 

7. But the conclusion that there is a real chance that if he is returned to Bangladesh he would be persecuted for his political opinion and therefore he has a well-founded fear of persecution (see s.5J of the Migration Act 1958 (Cth)) does not necessarily follow simply because he establishes that he holds an opposing political opinion to the ruling Awami League. The Tribunal’s task was to make an assessment about whether there was a real chance that if he was returned to Bangladesh he would be persecuted for his political opinion. Given the nature and extent of his political activities as found by the Tribunal, it did not consider there was a real chance that he would be persecuted for his political opinion. Accordingly, the Tribunal determined that there was no well-founded fear of persecution as the applicant claimed he had.

8. This ground of review has no merit. 

Ground 2 – illogicality

1. By this ground the applicant claims that the Tribunal fell into jurisdictional error by making a decision that was manifestly illogical, irrational or unreasonable.  He argues that the Tribunal recorded that whilst the applicant has been in Australia he was not in contact with any members of Jamaat-e-Islami.  The Tribunal recorded that he was reluctant to contact Jamaat-e-Islami or other similar bodies because that could “reignite memories of his past in Bangladesh and induce more anxiety”. 

2. The applicant argues that whilst the Tribunal was sceptical about the applicant’s failure to remain informed and engaged with Jamaat-e-Islami whilst in Australia the Tribunal did not take into account that the applicant stated that he still believes in the policies of Jamaat-e-Islami.  In those circumstances, the applicant argued that “persecution does not cease to be persecution for the purposes of the convention because those persecuted can eliminate the harm by taking avoiding action”.

3. The applicant argues that the Tribunal was unreasonably critical of the applicant for taking “avoiding action”.  Presumably the avoiding action which the applicant says the Tribunal thinks he was taking was the failure by the applicant to stay in contact with Jamaat-e-Islami or members of that political party in Bangladesh.  It is argued that by taking that avoiding action, the applicant is in practical terms, eliminating harm to himself.  The applicant argues that in approaching the case in the way in which it did, the Tribunal did not apply the decision of the High Court in S395/2002 v MIMA (2003) 216 CLR 473 at [40] where McHugh and Kirby JJ said:

   ·   The purpose of the Convention is to protect the individuals of every country from persecution on the grounds identified in the Convention whenever their governments wish to inflict, or are powerless to prevent, that persecution. Persecution covers many forms of harm ranging from physical harm to the loss of intangibles, from death and torture to State sponsored or condoned discrimination in social life and employment. Whatever form the harm takes, it will constitute persecution only if, by reason of its intensity or duration, the person persecuted cannot reasonably be expected to tolerate it. But persecution does not cease to be persecution for the purpose of the Convention because those persecuted can eliminate the harm by taking avoiding action within the country of nationality. The Convention would give no protection from persecution for reasons of religion or political opinion if it was a condition of protection that the person affected must take steps - reasonable or otherwise - to avoid offending the wishes of the persecutors. Nor would it give protection to membership of many a “particular social group” if it were a condition of protection that its members hide their membership or modify some attribute or characteristic of the group to avoid persecution. Similarly, it would often fail to give protection to people who are persecuted for reasons of race or nationality if it was a condition of protection that they should take steps to conceal their race or nationality.

4. However, in my view the applicant’s argument misconstrues S395/2002 and the Tribunal’s decision in the present case. The interest that the Tribunal had in whether the applicant continued his interest in Jamaat-e-Islami and what was happening in Bangladesh was simply to make some assessment about the authenticity of the applicant’s claims. As the first respondent points out, the Tribunal explains in its reasons for decision why the applicant’s engagement in Jamaat-e-Islami while in Australia was important. The Tribunal said at [27]:

   ·   Given the paucity of the applicant’s evidence to support his claimed political engagement while in Bangladesh, the Tribunal explored his interests since his arrival in Australia. When asked whether he continues to support JI, in any way, the applicant replied that he is not in contact with any members now. He said that he goes to the mosque to pray, but that he is not associated with any political, religious or social group that might have a link to JI, in Bangladesh or Australia. The Tribunal appreciates that the application might be preoccupied with establishing himself in Australia. The applicant also commented that he is reluctant to contact JI or similar bodies because this could reignite the memories of his past in Bangladesh, and induce more anxiety. The Tribunal is sceptical about this comment, as a politically engaged person might equally be keen to maintain their network, for instance to keep abreast of local political news and for social reasons. In the absence of any medical evidence, it places minimal weight on the applicant’s claimed anxiety a reason for the applicant's lack of ongoing interest.

5. In my view, the applicant does not demonstrate that the Tribunal’s decision is affected by illogicality or irrationality in the sense for which he contends.  No jurisdictional error is demonstrated by this ground.

Ground 3 – failure to take into account a relevant consideration

1. By this ground the applicant argues that the Tribunal fell into jurisdictional error because it did not take into account Department of Foreign Affairs trade information assessments that it was required to take into account by Ministerial Direction 56 and that it failed to consider specific relevant examples of the Awami Leagues propensity for violence against supporters of Jamaat-e-Islami and the Bangladesh National Party and the culture of impunity in Bangladesh.

2. However an examination of the Tribunal’s reasons reveals that it did neither of those things.  The applicant complains that the Tribunal failed to consider country information before it that Jamaat-e-Islami members had been subjected to ongoing waves of arrest and had a high level of official discrimination during periods of heighten political tension.  However, the Tribunal clearly did consider the information referred to in the applicant’s outline.  The Tribunal expressly quoted the country information about which the applicant now complains the Tribunal did not take into account at [48] and [49] of its reasons for decision.  It expressly identified the DFAT country information in the report of 5 July, 2016 in its reasons and as the first respondent points out, the applicant’s own outline cites the parts of the Tribunal’s decision that referred to that country information.  The Tribunal’s reasons at [50] reveal that the Tribunal considered the applicant’s circumstances as against that country information. 

3. I accept the first respondent’s submissions that the Tribunal gave detailed and comprehensive reasons which properly considered the material in respect of which the applicant now makes complaint. 

4. There is nothing in this ground of review.  It does not establish jurisdictional error.

5. The final ground in the applicant’s further amended application for review was abandoned.

Conclusion

1. The applicant has failed to establish that the Tribunal’s decision was affected by jurisdictional error.  The further amended application filed on 21 February, 2017 must be dismissed with costs. 

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Jarrett

Date:  8 June 2017