DVD18 v Minister for Immigration, Citizenship and Multicultural Affairs

[2022] FedCFamC2G 858

Federal Circuit and Family Court of Australia

(DIVISION 2)

DVD18 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 858

File number(s):

SYG 2047 of 2018

Judgment of:

JUDGE LAING

Date of judgment:

21 October 2022

Catchwords:

MIGRATION – application for judicial review of a decision by the Administrative Appeals Tribunal affirming decision not to grant a protection visa – whether the Tribunal failed to comply with its statutory duty under s 424A – allegation of apprehended bias – whether the Tribunal misapplied the ‘real chance’ test – application dismissed.

Legislation:

Migration Act 1958 (Cth) ss 424A, 438

Cases cited:

BJO18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 189; (2020) 281 FCR 594

Chan v Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379

CJV19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 354

Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337

Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51; (2010) 15 ALD 303

Minister for Immigration and Ethnic Affairs v Guo and Another [1997] HCA 22; (1997) 191 CLR 559

Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507

Springs v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 197; (2021) 389 ALR 431

SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 81 ALJR 1190

Tran v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 297

Division:

Division 2 General Federal Law

Number of paragraphs:

43

Date of hearing:

12 October 2022

Solicitor for the Applicant:

Mr R Turner, Ronayne Owens Lawyers

Solicitor for the First Respondent:

Ms K Evans, Sparke Helmore

Counsel for the Second Respondent:

Submitting appearance, save as to costs.

ORDERS

SYG 2047 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

DVD18

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

order made by:	JUDGE LAING
DATE OF ORDER:	21 October 2022

THE COURT ORDERS THAT:

1.The application be dismissed.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE LAING

1. Before the Court is an application for judicial review of a decision made by the Administrative Appeals Tribunal (Tribunal). The Tribunal affirmed a decision of a delegate (Delegate) of the first respondent (Minister) refusing to grant the applicant a Protection (Class XA) (Subclass 866) visa (protection visa).

   background

2. The applicant is a citizen of Bangladesh who arrived in Australia in 2013 as the holder of a Work and Holiday (Class US) (Subclass 462) visa.

3. On 27 May 2014, the applicant applied for a protection visa.

4. On 28 September 2015, the Delegate refused to grant the application.

5. On 24 October 2015, the applicant applied to the Tribunal for review of the Delegate’s decision.

6. The Tribunal affirmed the Delegate’s decision on 5 July 2018.

   the tribunal’s decision

7. The Tribunal noted that the Department's file contained a purported certificate issued under s 438 of the Migration Act 1958 (Cth) (Act). The underlying material contained an allegation that the applicant had no personal or political problems in Bangladesh and that he had submitted fake documents. The Tribunal disclosed the certificate to the applicant and the content of the allegations, although it raised doubts about the certificate’s validity. The applicant responded that he believed the allegations were made by his former employer (Employer) in retaliation made for complaints made to the FWO and ATO (at [8]-[9]).

8. The Tribunal accepted that the applicant was a national of Bangladesh (at [32]).

9. However, the Tribunal expressed concerns about the credibility of the applicant’s evidence. It stated at [33]-[34]:

   33.As to the applicant's credibility, while the Tribunal has, as detailed below, significant concerns regarding aspects of the applicant's claims and evidence, particularly those he claims led him to leave Bangladesh and why he fears return, there are other aspects of his claimed circumstances which the Tribunal is satisfied are true. Specifically, the Tribunal accepts because of his consistent evidence that the applicant was born in Bangladesh and he is a Hindu. It also accepts on the basis of the independent documentary evidence that the applicant and [his colleague (Colleague)] have made complaints to the FWO, ATO and Department against [a company (Company)], of which [the Employer] is the managing director for unpaid wages, lack of superannuation, employment of illegal workers and other breaches of employment practices. From the information provided the Tribunal accepts that the FWO has investigated the matter and has determined on the information before it that the applicant is owed [an amount]. It accepts that [the Company] has gone into liquidation and the FWO is currently considering legal action to be taken against [the Employer] personally. It accepts the evidence that [the Employer’s] whereabouts are unknown. It accepts that the applicant and [the Colleague] have engaged a lawyer to assist them with obtaining their unpaid wages.

   34.As to the applicant fearing return for the reasons he claims, or facing the difficulties he claims he and his family faced in Bangladesh and the threats of harm he faced while in Australia, for the reasons that follow the Tribunal does not accept that the applicant is a credible witness. For the reasons that follow it finds the applicant was not involved in the Gonojagoron Moncho or Shahbag protests or movement, faced any of the difficulties he claims due to being involved in this movement or as a result of being Hindu or that he suffered harm in Bangladesh for this reason or fled Bangladesh as he feared harm. While it accepts that he has made a complaint to the ATO, FWO and other organisations for unpaid wages and breach of employment practices against [the Company] and [the Employer] and assisted [the Colleague] with similar complaints it does not accept that either he or his family have been threatened by [the Employer], his associates, relatives and the police in Bangladesh and Australia. It finds the applicant's testimony inconsistent as to his claims to fear harm, amounting to a fabrication for the reasons below. This leads the Tribunal to find that the applicant is not a witness of truth as to his claims as to the difficulties amounting to harm and regarding fears of harm on return to Bangladesh.

10. The Tribunal further considered the applicant’s claims as follows:

    (a)Past harm while living in Bangladesh – Gonojagoron Moncho and Hindu claims: The Tribunal did not accept that the applicant or his family were involved in the Gonojagoron Moncho movement, were members or attended protests or faced any of the difficulties he claimed as a result of being involved and as they are Hindu. The Tribunal further did not accept that the applicant and his family were seen as politically opposed to fundamental Muslims and the Bangladesh Nationalist Party (BNP) as a result of his father being involved in Hindu organisations, or the fact that he and his family are Hindu (at [35]). The Tribunal observed that there were inconsistencies in the evidence given by the applicant and with independent country information about when the movement and protests occurred (at [36]). The applicant had also given inconsistent evidence regarding the harm he claimed that he and his family had suffered (at [38]-[40]) and regarding where he had lived before departing Bangladesh (at [41]). The Tribunal considered that the applicant’s behaviour before leaving Bangladesh further undermined his protection claims (at [41]).

    (b)Threats and difficulties as a result of complaints made to the FWO, ATO and other organisations: The Tribunal did not accept that the applicant was “a credible witness as to the difficulties, including threats of harm, he and his family have faced as a result of making these complaints at the hands of [the Employer], the police in Bangladesh, his business associates and friends in Australia and members of the Bangladeshi community” (at [43]). The Tribunal considered that the applicant and his witness (the Colleague) had provided inconsistent evidence in this regard (at [43]-[48]). Limitations within the corroborative evidence were also found to be of concern (at [48]).

11. In assessing the applicant’s credibility the Tribunal stated:

    49.For all the above reasons, considered cumulatively, the Tribunal does not find the applicant to be a credible, truthful and reliable witness as to why he fears return and the difficulties he claims he will face on return. The Tribunal is of the view that the applicant has fabricated claims and concocted evidence to achieve an immigration outcome. On the basis of the above cumulative credibility concerns the Tribunal therefore does not accept that the applicant is a credible witness and cannot be satisfied on the evidence before it that the applicant is a truthful witness regarding his claims as to why he departed Bangladesh and why he fears return.

12. The Tribunal accepted that the Employer may have links to politicians, police and people of influence. It accepted that corruption was an issue in Bangladesh. However, The Tribunal did not accept that the applicant faced a real chance of harm on this basis. This was due to its adverse credibility findings regarding the difficulties and threats that the applicant claimed to have faced (at [57]).

13. The Tribunal therefore did not accept the applicant’s claims regarding his previous Employer or his family’s political involvement and risk (at [58]-[62]). The Tribunal did not accept that the applicant faced a real chance of relevant harm on these bases (at [63]-[70]).

14. The Tribunal also did not accept that the applicant faced a real chance of relevant harm as a Hindu in Bangladesh. In this regard, the Tribunal had regard to country information and the family’s personal circumstances at [71]-[75] before concluding at [76]-[78]:

    76.The Tribunal accepts there are continuing outbreaks of communal violence and attacks on Hindus, and there appears to have been an increase in sectarian and terrorist violence. However, as noted above, there are between 12 and 15 million Hindus in Bangladesh and the evidence does not suggest that outbreaks of sectarian or terrorist violence are so widespread or frequent that Hindus generally face a real chance of experiencing serious or significant harm in Bangladesh today merely because they are Hindus. Furthermore, no evidence has been provided which suggests that the applicant or his family face a greater risk than others of experiencing sectarian or terrorist violence because of their Hindu religion if the applicant returns to Bangladesh. The Tribunal notes that neither the applicant nor his family are politically active, as was his evidence at hearing, and while he referred to land being taken 10 to 20 years ago there does not appear to be any ongoing dispute or difficulties arising from this. While the Tribunal accepts that his father is involved in Hindu organisations and the Bangladesh Hindu Buddhist Christian Unity Council, the evidence does not indicate he has faced difficulties as a result of this amounting to a real chance of serious harm or a real risk of significant harm. Therefore on the basis of the applicant and his family's personal situation and DFAT information that there is a moderate risk and attacks are sporadic, the Tribunal does not accept that the applicant or his family face a real chance of serious harm or real risk of significant harm were the applicant to return to Bangladesh as he is a Hindu and/or his family are Hindus.

    77.In reaching this conclusion I have considered the newspaper articles and reports on the situation in Bangladesh provided by the applicant, including the US reports on religious freedom submitted. The Tribunal notes that none of these articles contained information which was specific to him or his family and it appears that they had been provided to show the general situation. These articles provide specific examples of sectarian and political violence occurring in Bangladesh. However, they contain nothing which alters the conclusion that the applicant does not face a real chance of experiencing such harm. The Tribunal has also considered the claim that Hindus are fleeing but the evidence indicates that there are still millions of Hindus living in Bangladesh, some of whom are involved in political life.

    78.As a result, the Tribunal does not accept that the applicant faces a real chance of persecution involving serious harm if he returns to Bangladesh in the reasonably foreseeable future as he and his family are Hindus, his father is involved in Hindu and minority faith based organisations or as Hindus are perceived to be aligned with the Awami League, opposed to the BNP, Islamic fundamentalists, JI and Chhatra Shibir. Similarly, based on the findings above and on the information before it, the Tribunal is not satisfied that there is a real risk that he will suffer significant harm on his return to Bangladesh as he and his family are Hindus and involved in minority faith based organisations, or as Hindus are perceived to be aligned with the Awami League, opposed to the BNP, Islamic fundamentalists, JI and Chhatra Shibir.

15. Having regard to the above, the Tribunal was not satisfied that the applicant was a person to whom protection obligations were owed (at [79]-[84]). The Tribunal accordingly affirmed the Delegate’s decision (at [85]).

    proceedings before this court

16. The applicant commenced the proceedings before this Court by application filed on 24 July 2018. On 12 October 2018, the applicant filed an amended application relying upon the following grounds:

    1.        The Tribunal failed to comply with its statutory duty

    Particulars

    a.The Tribunal had information which was the reasons, or part of the reason, for affirming the decision.

    b.The Tribunal failed to provide clear particulars of that information to the Applicant, explain why it was relevant and give him a genuine opportunity to respond to it.

    2.        The Tribunal's decision was affected by apprehended bias

    Particulars

    a.The Tribunal found inconsistencies where there were none.

    b.The Tribunal based its decision on inconsistencies in the evidence but failed to find in favour of the Applicant in relation to the evidence that was consistent.

    3.        The Tribunal applied the wrong test

    Particulars

    a.        At paragraph 76, the Tribunal found

    “Therefore on the basis of the applicant and his family’s personal situation and DFAT information that there is a moderate risk and attacks are sporadic, the Tribunal does not accept that the applicant or his family face a real chance of serious harm or real risk of significant harm were the applicant to return to Bangladesh as he is a Hindu…”

    b.The Tribunal's finding is based on there being a 'moderate risk' which is the wrong test

    c.Although the Tribunal refers to a 'real chance' that finding is based on its earlier finding that there is a 'moderate' risk

    d.The Tribunal has failed to realise that a 'moderate risk' can amount to a 'real chance'.

    e.The Tribunal found that the Applicant was a Hindu.

    f.There was evidence, that the Tribunal accepted, that Hindus are mistreated which could amount to persecution or serious harm.

    g.Hindus are a social group and/or a religion

    h.It follows, logically, that the Applicant would, if he returned to Bangladesh, be subject to persecution and/or serious harm.

    Ground 1 – failure to comply with s 424A

17. Ground 1 contended that the Tribunal failed to comply with its statutory duty. The particulars suggested that this was through a failure to comply with s 424A of the Act. This was confirmed in the written submissions filed by Mr Turner on behalf of the applicant. Those submissions contended that the Tribunal breached s 424A of the Act by relying upon oral evidence given during the applicant’s interview with the Department without complying with the procedure required by that provision.

18. In this regard, Mr Turner relied upon [6] of the Tribunal’s decision, where the Tribunal generally stated that it had regard to oral evidence provided during the Department interview.  Mr Turner also relied upon [12], in which the Tribunal stated that it had listened to the tape of the interview and that evidence, where relevant, appeared within its decision. Mr Turner submitted that the Tribunal relied upon this evidence to make adverse credibility findings.

19. In particular, Mr Turner submitted that the Tribunal relied upon it at [36]. In that paragraph, the Tribunal observed that the applicant had given evidence at interview that he started attending Gonojagoron Moncho or Shahbag movement protests in 2008 or 2009. This was found to be inconsistent with his other evidence as to when he started attending, as well as with country information indicating that they began in 2013.

20. Mr Turner also relied upon [38] of the Tribunal’s decision. In that paragraph, the Tribunal observed that the applicant had given inconsistent evidence regarding the harm he and his family had previously suffered as Hindus and on account of their involvement in the Gonojagoron Moncho or Shahbag movement/protests. In his statutory declaration, the applicant claimed that he and his father had been badly beaten following an attack on their house and business establishment in 2013, requiring hospitalisation. At interview he referred to being beaten in 2009 during a demonstration but did not refer to his home being invaded or to hospitalisation. At his hearing before the Tribunal, the applicant had not claimed that he or his family were subjected to physical harm.

21. However, I accept Ms Evans’ submission for the Minister that the evidence relied upon in this regard was not “information” capable of enlivening s 424A of the Act. It is well settled that “information”, for the purposes of s 424A of the Act, concerns evidentiary material or documentation and not the Tribunal’s “subjective appraisals” such as those regarding “the existence of doubts, inconsistencies or the absence of evidence”: SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 81 ALJR 1190 (SZBYR) at [18]. In order to enliven s 424A, “information” must contain in its “terms a rejection, denial or undermining of the [applicant’s] claims” to be owed protection obligations: SZBYR at [18] and Springs v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 197; (2021) 389 ALR 431 at [19]-[28].

22. At the hearing of this matter, Mr Turner emphasised that it was the evidence given at interview that he contended enlivened s 424A and not its inconsistency with other evidence. However, the applicant’s evidence at interview that he began attending protests in 2008 or 2009 did not, in its terms, undermine his claims to be owed protection. Nor did the applicant’s evidence that he had been beaten in 2009 during a demonstration. Rather, it was the inconsistency of this evidence, when assessed in relation to other evidence before the Tribunal, that did so. Such an inconsistency was not “information” for the purposes of s 424A of the Act.

1. It follows that ground 1 is unable to succeed.

   Ground 2 – apprehended bias

2. Ground 2 raised an allegation of apprehended bias.

3. Apprehended bias may be demonstrated where a “fair-minded lay observer might reasonably apprehend” that an impartial mind may not have been brought to determination of the matter: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [33] per Gleeson CJ and McHugh, Gummow and Hayne JJ. However, it is well established that allegations of bias must be “distinctly made and clearly proved”: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 at [72]. It would be rare for such an allegation to be established based upon the reasons for decision alone: Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51; (2010) 15 ALD 303 at [18].

4. Mr Turner contended that apprehended bias was demonstrated by the Tribunal’s reliance upon inconsistencies where no real inconsistency existed and failure to consider what weight should be attributed to various consistencies that it had found.

5. In relation to the findings where it was contended that no real inconsistency existed, Mr Turner relied upon [44] and [46] of the Tribunal’s decision.

6. The part of [44] relied upon by Mr Turner was as follows:

   44.…The Tribunal also notes that the applicant said his father was taken to the police station although the witness claimed they threatened both the applicant's father and uncle, not just his father.

7. The inconsistency referred to by the Tribunal is apparent from the transcript that is in evidence. At Q388 to Q418, the applicant gave evidence that his family were threatened when his father (and only his father) attended a police station in Bangladesh. He said that this was the only time that the Employer met with and directly threatened his family (Q418). In contrast, the Colleague told the Tribunal that the Employer took the applicant’s “brother and maybe uncle to the Police Station”, subsequently confirming that the uncle had also been present (Q655). This was, on the face of it, inconsistent with the applicant’s evidence that only his father had attended the police station where it was claimed that the threats were made.

8. Paragraph [46] stated as follows (footnotes omitted, some material de-identified in case it may disclose the identity of the applicant):

   46.Further, the applicant's evidence as to threats made to the applicant and [the Colleague] on [a date] in Australia by [the Employer] is internally inconsistent and inconsistent between each other as follows:

   •As noted above, the applicant stated at hearing that both he and [the Colleague] were threatened by [the Employer] at a meeting held on [a date]. He claimed at hearing that [the Employer] said to them "you don't know about me but I will take care of you when you get back to Bangladesh". When asked to confirm the threat, the applicant said [the Employer] will kill him on return to Bangladesh. Later he confirmed that [the Employer] made threats on [the date] with harm. [The Colleague] later gave evidence at the hearing that he was threatened by [the Employer] at his home together with the applicant in… 2016. He said that [the Employer] said that there would be big trouble for him and his family if he did not withdraw the claim.

   •However, as raised with the applicant and [the Colleague] separately at hearing, in contrast to both of their evidence, is the evidence provided by [the Colleague] at the hearing held in 2016 to assess his claims.¹ The Tribunal (differently constituted) decision notes that [the Colleague] stated at hearing in 2016 that [the Employer] never personally threatened him. The decision indicates that the evidence of [the Colleague] was that [the Employer’s] brother-in-law sent a colleague to his ([the Colleague’s]) home to tell him to withdraw the case. He claims he then reported the incident to [the] police station.

   •When the inconsistency between his evidence and that of [the Colleague] as outlined in the decision was raised with the applicant, in response he referred to his email to the FWO... The Tribunal notes this states that both of them were receiving indirect threats from their employer and that they went to the police. When the internally inconsistent evidence of [the Colleague] was raised with the applicant via s.424AA, including that the inconsistency may lead the Tribunal not to place weight on his evidence, the applicant responded that [the Employer] said he has money and big power in Bangladesh and there will be big trouble. While he initially said it was not much of a threat, when the Tribunal asked him if he believes that to be a threat, he said he did.

   •When the above issue was raised with [the Colleague] at hearing, he did not directly answer the question but referred to an indirect threat by… a colleague of [the Employer’s] brother in law, and how they went to the… police station after this.

9. The evidence of the applicant and his Colleague at the hearing that the Employer had personally threatened them was, on the face of it, inconsistent with the Colleague’s evidence at the 2016 hearing that he had never been personally threatened by the Employer. It was also inconsistent with their communications with the FWO to the effect that they had only received indirect threats. These were the inconsistencies that were found in the above paragraph. Based upon the above, I do not accept that it was closed to the Tribunal to find inconsistencies where it did.

10. The Tribunal also, as Mr Turner submitted, acknowledged there had been various consistencies in the evidence (at [33], [52], [57], [71] and [76]). It is apparent that the Tribunal in identifying those consistencies was accepting that they were capable of weighing in the applicant’s favour. However, the Tribunal was not obliged to quantify the weight that it gave to such consistencies in the evidence. It is apparent that the weight attributed was lower than that which the Tribunal attributed to the other issues that it had identified in the applicant’s evidence when making its overall credibility findings. Questions of weight are ordinarily matters for the Tribunal: see Tran v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 297 at [5].

11. For the above reasons, I do not accept that the factual basis for ground 2 has been made out. However, even if the Tribunal had committed some error(s) in identifying and weighing the contended inconsistencies and consistencies in the evidence, I do not accept that this would have been sufficient to have met the high threshold for the ground of apprehended bias. A “fair-minded lay observer” would not have reasonably apprehended that the Tribunal may have failed to bring an impartial mind to determination of the matter simply because it failed to correctly assess the evidence that was before it.

12. It follows that ground 2 is unable to succeed.

    Ground 3 – application of the “wrong test”

13. Ground 3 contended that the Tribunal failed to apply the “real chance” test, as considered in cases such as Chan v Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379 (Chan) and Minister for Immigration and Ethnic Affairs v Guo and Another [1997] HCA 22; (1997) 191 CLR 559 (Guo). This is because the Tribunal relied upon country information indicating that there were “sporadic attacks” and a “moderate risk” of harm to Hindus. Mr Turner submitted that it logically followed that the applicant as a Hindu faced a real chance of relevant harm. He submitted that the Tribunal misapplied the real chance test by failing to realise that a “moderate risk” can amount to a “real chance”.

14. However, as Ms Evans submitted, the references by the Tribunal to “moderate risk” and “sporadic attacks” need to be understood within context. The Tribunal referred to a DFAT report using these terms at [72] of its reasons:

    72.… DFAT assesses that Hindus with historical land claims face a moderate risk of official discrimination because they are unlikely to be able to reclaim their property or obtain compensation despite a legal pathway enabling them to do so. Hindus face a moderate risk of societal discrimination in the form of physical violence, particularly around periods of heightened political tensions such as national elections, and may face a risk of sporadic attacks from Islamist militants.

15. The reference in country information to such terms did not necessitate a finding by the Tribunal that the real chance test was satisfied: see BJO18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 189; (2020) 281 FCR 594 at [125]-[130] per Murphy J (O’Callaghan and Snaden JJ agreeing) and CJV19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 354 at [52].

16. The Tribunal also had regard to information in the DFAT report indicating that there were between 12 and 15 million Hindus in Bangladesh. It considered that the country information did not indicate that sectarian or terrorist violence was so widespread or frequent that Hindus generally faced a real chance of relevant harm simply because they were Hindus (at [76]). Whilst the Tribunal acknowledged other country information had been provided, it observed that this referred to the “general situation” and was not specific to the applicant or his family (at [77]).

17. The Tribunal had regard to the particular situation faced by the applicant’s family in Bangladesh. The Tribunal observed that it had rejected that the applicant and his family had faced the difficulties that he had claimed. It considered that the evidence before it did not indicate that the family had faced difficulties amounting to serious or significant harm because they were Hindu. The applicant and his brother had attended university, obtained tertiary degrees and the applicant was sponsored by the government for his visa to Australia. His family remained in the same house and operated the same business for many years. The applicant had been able to maintain his residence and employment. His father held a position of apparent prominence and his contact details were publicly available (at [75]-[76]).

18. The Tribunal considered that the evidence did not suggest that the applicant’s family faced a higher risk than others of sectarian or terrorist violence on account of their religion. It found that the family were not politically active. Whilst the applicant had referred to land historically being taken, this did not appear to involve any ongoing difficulties or dispute. Considering the “family’s personal situation” together with the country information before it (indicating “moderate risk” and “sporadic attacks”), the Tribunal did “not accept that the applicant or his family face a real chance of serious harm or real risk of significant harm” on account of being Hindu in Bangladesh (at [76]).

19. This was the correct statutory test. I do not accept that the Tribunal’s reference to country information referring to “moderate risk” or “sporadic attacks” in the general situation demonstrates that this test was misapplied. It was open to the Tribunal to consider this information together with the specific situation faced by the applicant’s family and to conclude that the applicant did not face a real chance of relevant harm. That the Tribunal appreciated and applied the correct test is also evidenced by its setting out of the test, consistently with Guo and Chan, at [79]-[80] and page 25 of its decision.

20. It follows that ground 3 is unable to succeed.

    CONCLUSION

21. For the above reasons, I conclude that the application must be dismissed. I will hear the parties in relation to costs.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Laing.

Associate:

Dated:       21 October 2022