DRU16 v Minister for Immigration

[2017] FCCA 1093

FEDERAL CIRCUIT COURT OF AUSTRALIA

DRU16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1093

Catchwords:
MIGRATION – Protection Visa – whether tribunal’s decision affected by jurisdictional error – where no error established in tribunal’s decision – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Applicant: DRU16

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 1121 of 2016

Judgment of: Judge Vasta

Hearing date: 22 May 2017

Date of Last Submission: 22 May 2017

Delivered at: Brisbane

Delivered on: 22 May 2017

REPRESENTATION

Counsel for the Applicant: Mr Newman

Solicitors for the Applicant: Newman & Associates

Solicitors for the  Respondents: Minster Ellison

ORDERS

1. That the Application filed 5 December 2016 be dismissed.

2. That the Applicant pay the costs of the First Respondent of and incidental to this proceeding fixed in the sum of $5,600.00 (inclusive of GST).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 1121 of 2016

DRU16

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore)

1. By application filed on 5 December 2016, the Applicant, DRU16, seeks a judicial review of a decision of the Administrative Appeals Tribunal give on 8 November 2016.  That decision itself affirms a decision of the delegate for the Minister not to grant the Applicant a protection visa. 

2. Basically, the background facts are that the Applicant came to Australia in June 2005 as a student.  He returned to Bangladesh three times in 2006, 2007, and 2008 to visit his family.  He had a bridging visa that expired sometime after 2009 and so was illegally in this country for more than four years after the expiry of that last visa.  He then lodged an application for protection.

3. In short, he claims to fear persecution or significant harm from Muslims, particularly Islamic extremists because he is a member of the Hindu minority.  He says that he is additionally vulnerable because of his family’s profile in the community and his mother’s work with a Hindu cultural organisation.  He also claims that because he would be perceived, that is, he and his family would be perceived as supporting the Awami League, that that may further motivate the Bangladesh Nationalist Party or Jamaat-e-Islami, JI, to pursue him.

4. The Tribunal had the benefit of the Applicant’s evidence before it, plus his written application, plus what he had said to the delegate, as well as quite a copious amount of country material.  The Tribunal noted that they generally had a favourable view of the Applicant’s credibility at the hearing. 

5. What the Applicant has said is that he is a Hindu and he came from a province called Dinajpur.  Now, that province is one of the leading Hindu areas in Bangladesh, with the Hindu minority accounting for 20 per cent of that district’s population, whereas the national average of Hindus in Bangladesh is about 9 per cent.

6. He told the Tribunal that he and his family are quite open about their Hindu faith, and they participate in festivals, they play music publically, they worship idols, and they have been involved in a number of Hindu community activities.  He said that he himself has continued his Hindu faith whilst being in Australia.

7. The Applicant told the Tribunal that his immediate family were his mother and father and sister.  His father is a doctor, who has a medical practice, and he has a consulting room and a small dispensary in the family home.  The Applicant claimed that the father and a friend established the local hospital in the area with about 60 to 80 beds, and the father is part owner of the hospital and a former financial director.  The patients seen in that hospital are both Hindu and Muslim.

8. His mother, the Applicant told the Tribunal, is active in the cultural organisation that is called Udichi, which has a local branch near the family’s home, and the mother is quite active in that cultural organisation which promotes the Hindu culture. 

9. The Applicant told the Tribunal that his sister studied medicine at a medical college in Dhaka, the capital, and she returns to visit the family during school breaks, and that she is doing an internship.  Her plan was to work in the family owned medical practice, though he added that the mother and father were worried about the security situation for Hindus and wanted her to emigrate to Australia.

10. The Applicant, before the Tribunal, was able to talk generally about the persecution of Hindus in Bangladesh, and he was able to corroborate that with quite a deal of country information that he had procured as well as the country information that the Tribunal had.  He had no real information about reports of any incidents in his own town, because he said it was small and even if there were incidents, it would not make it into the National Press.

11. He was asked to give some examples of when he and family members have been targeted or made to feel unsafe.  His reply was that during Hindu festivals, the Muslims used to ask for money and they would pressure the Hindus to turn down the music, and that they were verbally harassed or abused, and that some Muslims sometimes broke idols that Hindus had prepared to worship, or the temple had been vandalised and the police would not intervene. 

12. And whilst he said the situation was not as bad in the city where he lived, but in the villages the Muslims would close down the festivals and act aggressively.  He spoke about the Hindu elders being able to mediate sectarian tensions, and there had not been any serious incidents in his locality.  He talked about the reports he had about other incidents in places not that far away from where he was established.  He said that his father dealt with both Hindu and Muslim patients in his medical practice, though the Applicant noted that it was a bit scary when the father had to make house calls. 

13. The Applicant claimed that his mother had complained about being hassled from time to time, and that she wound back and even stopped some of her activities.  He said that he suspects that they have other problems but have avoided talking about them. He said that his sister, because she had lived and studied in Dhaka, had witnessed many incidents of Muslim violence and harassment towards Hindus.  He claimed that his sister had been followed by Muslim men who had teased her.  The Applicant also claimed that his family supported the Awami League, as I have mentioned before.

14. The Tribunal noted that the Applicant provided very little by way of specifics or supporting evidence to corroborate the claims, and it was difficult to distinguish between his own experience on one hand and those of others in general.  But the large amount of country information did support the Applicant’s account of his and the family’s experiences, such that the Tribunal accepted that there had been, from time to time, harassment and discrimination.

15. The Tribunal then assessed the Applicant against the refugee criterion.   

16. The Tribunal put some weight, though not much, on the Applicant not having made an application for protection for well over four years and simply his simply staying here working illegally.  The Tribunal, in effect, was saying the one would have thought that if the Applicant needed this country’s protection, that he would have applied for protection well before the time that he did.   However that does have to be tempered somewhat by the Applicant’s own evidence that he has seen, through what his parents have told him and what he has read, that the situation in Bangladesh has deteriorated.

17. The Tribunal looked at all of the country information as well.  At paragraph 40 the Tribunal accepted:

    “…that the applicant experienced some discrimination and harassment at the hands of local Muslims, but does not accept that these incidents involved serious harm. The applicant claimed that the security outlook for Hindus had deteriorated in Dinajpur (and Bangladesh more generally) particularly given the rise in Islamic extremist activity and, he implied, intensified communal tensions and declining law and order. This meant an increase in ‘random’ attacks (ie. the risk that ordinary citizens can get caught up in terrorist or criminal acts) and the ever-present risk that small disagreements can escalate to communal violence.

    The Tribunal surmised that such facts did not amount to “serious harm” as that term would be understood.

18. The Tribunal also looked at the fact that there had been a bombing in a temple about 20 kilometres away from the Applicant’s village; that another temple, which was not known how far away it was from the Applicant’s village, had been the subject of another attack of bombs and of bullets sprayed from outside into the temple and that there were two suspects who were Mujahideen militants that were captured and charged by police; and that there had been a protest outside the National Press Club in Dhaka criticising the authorities for not doing enough to protect religious minorities in the region.

19. The Tribunal, though, put that into some context by saying that there was, in that district, a population of at least half a million Hindus out of the total population of about two and a half million. The Tribunal looked at quite a deal of country information from international crisis group reports, US Department of State reports, and the Department of Foreign Affairs and Trade’s own country information. The Tribunal concluded that even though the region where the Applicant is based has more incidents of anti-Hindu violence than other parts of Bangladesh, such was not sufficient to get to the point of having a “well-founded fear of persecution”.

20. The Tribunal, at paragraph 47, said:

    “Having regard to the applicant’s circumstances, and relevant country information, the Tribunal finds that he may face some degree of discrimination and harassment as a Hindu, but it is not satisfied that such treatment, individually or cumulatively, involves serious harm amounting to persecution. The Tribunal is not satisfied that he faces a real chance of being subject to any more serious harm, such as instances of physical violence or sustained targeting.” 

21. The Tribunal looked at the matter of political persuasion and noted that the Applicant was from a well-known Hindu family, and his mother was involved in cultural activities, and that they favoured the Awami League as a political party, and that there may very well be opposition from the BNP Party that exerts pressure on Hindus who are perceived to support the Awami League, and that there is a risk of tensions flaring up into actual violence. But the Tribunal was not satisfied that this had occurred to the Applicant or to any of his family members, and found that the risk of such violence does not amount to a “real chance”.

22. The Tribunal looked at the backdrop of rising Islamic fundamentalism and the claim that the Applicant had made, that anyone who returns from a western country is at risk of being targeted and persecuted by Islamists.  The Tribunal said that there was no persuasive information before the Tribunal to suggest that the Islamic fundamentalists, or the society at large, target Hindu Bangladeshis returning from abroad or, in particular, from western countries. 

23. The Tribunal was not satisfied on that evidence that the Applicant faces a real chance of being targeted and seriously harmed.

24. So, in summary, the Tribunal found that the Applicant does not have a “well-founded fear of convention based persecution”.  As well, the Tribunal was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the Applicant being removed from Australia, that there was a “risk that he would suffer significant harm”, and that is the reason that they made the finding that they had.

25. The Applicant filed the application with two grounds.  They were these: 

    “(1) In the past the Islamic extremist have always taken out their anger and frustration on the local minorities due to current attack and arrest of terrorist in the country and other part of the worlds,  minorities get tortured, attacked and many times killed.

    (2) Noted website english.eibela.com used to post news about attacks on minority in the internet.  The website was down but now will prove that the attack on Hindus has increased to a state that people are asking President Trump to interfere.”

26. As noted today, neither of those grounds are actually a ground of review.  They are more statements.  I gave leave today for an amended ground of application to be made, and that ground is:

    “The tribunal erred in law and in its jurisdiction when, against a backdrop of increasing religiously inspired violence against a minority group of a different faith, the fact that the applicant could not point to a substantial incident of harm, either to himself or to his family, had the necessary consequence that the applicant could not and did not possess a well-founded fear of persecution.”

27. Such a ground of application presupposes that it was the fact that the Applicant could not point to a substantial incident of harm, either to himself or to his family, which was the only reason that the Applicant could and did not possess a “well-founded fear of persecution”. 

28. As my recitation of the Tribunal’s decision would illustrate, the conclusion that the Tribunal came to was not because of any one particular matter; it was because of a number of circumstances all put together that gave the Tribunal the means by which it could conclude that the Applicant did not meet the Convention criterion or the complimentary protection criterion.

29. In oral submissions, Mr Newman, for the Applicant, submitted that the way in which the Tribunal couched a lot of its language would show that the Tribunal was against the Applicant from the start. Mr Newman pointed to paragraph 18 of the reasons which reads:-

    “During the course of the Tribunal hearing, the applicant intimated – without resiling from or downplaying his protection claims – that his parents and sister have standing in the community, and his return to Bangladesh without having completed his studies in Australia would be difficult.  He couched this in terms of the problems he would face in trying to find work or set up a business (in part because his membership of a Hindu minority), but the tribunal sensed he was also preoccupied by the potential disappointment of his family.”

30. Mr Newman categorised the way in which the Tribunal had couched that language as if the Applicant was really saying, “Have a look at how good my family is going, and yet I think that I have a well-founded fear of persecution”. The reaction of the Tribunal was that such a statement was verging on the absurd. 

31. At paragraph 25, when the Tribunal said:

    The Tribunal had some difficulty in switching the applicant’s focus from these broad statements to the particular concerns and experiences that he and his family have had.”

    What the Tribunal was really trying to say to the Applicant was, “Yes, you keep telling us about these matters, but what has that got to do with your family?” 

32. At paragraph 29, the subtext Mr Newman suggested really was, “Well, because you cannot point to personal harm, you cannot have this well-founded fear.” 

33. The way in which the Tribunal has gone about its reasoning is, in my view, quite logical. The Tribunal started off by talking about the Applicant’s credibility, and what were the matters that influenced the Tribunal’s assessment of credibility, which was, as I have said before, a generally favourable view of the credibility. 

34. Paragraph 18 was part of that. It had nothing pejorative about it.  It was simply stating what the Applicant had said. 

35. The following section after the next one was “Mistreatment as Hindus – the applicant’s and his family’s experience”.  Paragraph 25 was a simple fact as to looking at what really was the evidence of mistreatment of Hindus, and what the Applicant’s and his family’s, experience was so as to be able to look at what the evidence was to establish the Applicant’s own “well-founded fear of persecution”.

36. Paragraph 25, again, was not pejorative.  It was simply stating what the Applicant had said, and that the Applicant seemed to focus on broad statements and not any particular experiences that he or his family had had.  That was simply a fact of how the Applicant went about explaining or putting his case forward.

37. The same can be said for paragraph 29. 

38. It was not until paragraph 37 occurred that there was actually even an assessment of the claims of the Applicant, and, even then, there was quite a deal of material that the Tribunal discussed which was either accepted or not. The reasoning for their conclusion really starts at paragraph 46 and concludes at paragraph 52.

39. It seems to me that the Tribunal has done what it was supposed to do, and that is to look at the credibility of the Applicant to assess all of the evidence given by the Applicant and to assess that against the country information. The Tribunal has then looked at whether the criterion for the Convention and the criterion for complimentary protection have been made out or not. This is in keeping with what the duty of the Tribunal truly is.

40. There were oral submissions that the Tribunal must “appreciate the evidence in its context”.  In my view, the Tribunal has done that.  What has happened, however, is that the Tribunal have made conclusions as to the evidence with which the Applicant simply does not agree.  That is not, in any way, a basis for finding a jurisdictional error.

41. The final submission from Mr Newman when confronted with these facts was, “Well, if that is the case, how could this Applicant ever meet the test?”  Quite frankly, on this evidence, it would seem to me as though he could never have met the test; but that is not the Applicant’s fault or anyone’s fault, it is simply the way in which the law works.  There are criteria which must be met.  The evidence before the Tribunal either meets those criteria or it doesn’t.  In this case, the evidence for the Applicant did not meet the criteria.

42. The parliament set the law and it is for, firstly, the Administrative Appeals Tribunal to abide and adhere to the law, and it is this Court’s duty, on review of how the Administrative Appeals Tribunal has looked at the matter, to ensure that the law has been followed.  It is not a case of this Court being allowed to view the matter with sympathy, or bias, or prejudice. 

43. This Court must ask, “has the Tribunal assessed the evidence; has it done what it must do under the Act; and were the conclusions made by the Tribunal open to it?”  Having found that all of that can be answered in the affirmative, I find that there is no jurisdictional error.

44. I therefore dismiss the application with costs in the sum of $5,600.00.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date:  24 May 2017