DVP16 v Minister for Immigration
[2018] FCCA 2703
•21 September 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DVP16 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2703 |
| Catchwords: MIGRATION –Application for judicial review of decision of Administrative Appeals Tribunal (Tribunal) affirming decision not to grant protection visa – whether the Tribunal required to disclose to applicant it intended to rely on country information and inconsistencies – whether Tribunal provided applicant opportunity to present his case – whether Tribunal erred in assessing risk of future harm on the basis of a finding that the applicant intended to avoid engaging in conduct because he feared such conduct would expose him to harm – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36(2), 36(2A) 48B, 417, 423A, 424A, 425, 430(1), 476 |
| Cases cited: Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71 |
| Applicant: | DVP16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3541 of 2016 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 9 August 2018 |
| Date of Last Submission: | 30 August 2018 |
| Delivered at: | Sydney |
| Delivered on: | 21 September 2018 |
REPRESENTATION
| Applicant in person, assisted by an interpreter |
| Solicitor for the First Respondent: | Mr J Hutton of Australian Government Solicitor |
ORDERS
The application is dismissed.
The applicant pay the first respondent’s costs set in the amount of $5,000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3541 of 2016
| DVP16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant, who is a national of Bangladesh, applies for a remedy under s.476 of the Migration Act 1958 (Cth) (Act) in relation to a decision of the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant a Protection (Class XA) visa (Protection visa).
Background
The applicant entered Australia on 5 July 1999 on a visitor visa, and he applied for protection on 30 July 1999. A delegate of the Minister refused that application, and the Refugee Review Tribunal (RRT) affirmed that refusal. After withdrawing an application for judicial review, the applicant unsuccessfully applied for Ministerial intervention under s.417 and s.48B of the Act.
On 2 October 2012 the applicant purported to make the application for a Protection visa that is the subject of this proceeding. The Department of Immigration and Citizenship (as the Department of Home Affairs was then known) (Department) deemed the application to be invalid. On 29 August 2013, following the judgement of the Full Federal Court in SZGIZ v Minister for Immigration and Citizenship,[1] the application the applicant lodged on 2 October 2012 was deemed to be valid.
[1] [2013] FCAFC 71
Claims for protection
The applicant’s claims for protection are set out in a statutory declaration made on 21 September 2012.[2] The applicant there states he arrived in Australia in 1999 and applied for protection because he feared persecution on his return to Bangladesh based on his being a member of a minority religion. The applicant made the following claims:
a)The applicant’s family has lived for several generations at “Gopal Gonj” where the applicant, while growing up, witnessed “a lot of discrimination against the Hindu minority by the majority Muslim community members in Bangladesh”.
b)The applicant’s father was a “prominent minority activist, who tried to concentrate on organizing the minority groups against the Muslim suppressions”. As a consequence, the applicant’s father faced various assaults and torture, and “the Muslim community leader and the Muslim fundamentalists tried to assassinate” the applicant’s father.
c)The leaders of the BNP (that is, the Bangladeshi Nationalist Party) supported “an independent candidate who was the leader of the local BNP” with the intention of creating division within the Hindu and minority communities to establish “their subversive strong hold in or locality”. That resulted in Hindu minority leaders scattering, the Muslim community leaders creating division “within these communities on the point of contesting” the applicant’s “father’s seat as a BNP candidate”, the applicant’s father losing the parliamentary election and becoming a target of other political parties as well by the minority community leaders which “resulted in great suppressions against” the applicant’s family “by Muslim fundamentalist groups”.
d)The “Muslim fundamentalist groups lodged a false and fabricated case against” the applicant’s father, which led him “to keep underground to avoid detection by the Police and Muslim Community leaders”.
e)The situation became worse after the Awami League came into power in 1996. The applicant’s family became a major target of the “Muslim Community Leaders and they confiscated all of” the applicant’s family “mobile property”, and “burned down our house on three occasions”.
f)In July 1997 the Awami League, “led by Muslim Fundamentalist groups, surprisingly attacked and assaulted us mentally and physically”. The “Muslim Fundamentalist” threw the applicant and his family out of their dwelling and “displaced us from all of our assets and property and threatened to kill us if we did not leave Bangladesh”. The enforcement authorities also collaborated with the Awami League activists and the “Muslim Community Leaders”, thus preventing the applicant and his family from obtaining justice.
g)As a consequence the applicant and his family fled to India. The Indian government, however, was reluctant to give the applicant and his family any shelter, and gave an ultimatum that they return to Bangladesh. The applicant then managed to obtain an Indian passport in 1997 and entered Australia in 1999 on a visitor visa.
[2] CB54-57
According to the Tribunal’s reasons for decision, one claim the applicant made was that he would feel compelled to reclaim the family properties that have been taken, and that he would be harmed in the process.[3] According to the Tribunal, the following occurred at the hearing in relation to this claim (emphasis in original):[4]
When this issue was initially explored in the hearing, the applicant indicated that he would not take steps to recover the land because this would not be possible, and that he could be harmed in doing so. Later in the hearing, the applicant contradicted this earlier evidence, indicating that he would feel compelled to return to Gopalganj and seek to recover the property. Towards the end of the hearing, this inconsistency was explored by the Tribunal in some detail. There continued to be a vacillation in the applicant’s claims as to whether he would take steps to take back the land. The tribunal asked the applicant what steps he would take, for example would he consult a lawyer to seek to take legal action to get the property back. The applicant provided no indication that he would take such steps, or that he would take any steps. Ultimately, the clear evidence of the applicant was that he w ould not take steps, as much as he would like, to recover the land, because there would be no process available to . . . achive [sic] this, and he would not have the courage to do so.
After an adjournment in the hearing, to allow the applicant to consult with his representative, the representative submitted that the applicant’s evidence in the hearing had been that he would take steps to take back the land. The Tribunal indicated that, in its assessment of the evidence, this was not the applicant’s concluded position. The applicant then indicated to the Tribunal that he would feel compelled to try and take back the land. The applicant’s representative also made reference to the first Tribunal decision which indicates the applicant gave evidence in that hearing that he would take steps to take back the land.
[3] CB198, [43]
[4] CB198, [44]-[45]
Tribunal’s reasons
The Tribunal accepted that the applicant’s family were driven out of Gopalganj by extremists Muslims,[5] and it was prepared to accept that there may have been Awami League interests involved in the intimidation of the applicant’s family on the basis of the applicant’s having links with the BNP.[6] The Tribunal accepted that the targeting of the applicant and his family was based on “a carryover of animosity directed towards the applicant’s father, based on his political and other activities”, but it did not consider that Hindus generally in the town were targeted.[7] The Tribunal was also prepared to accept that the applicant’s mother and all three siblings went to India in 1997, and that none have returned to Bangladesh.[8] The Tribunal was satisfied that family property in Gopalganj and Dhaka was taken by Muslim extremists or interests associated with the Awami League.[9]
[5] CB197, [39]
[6] CB197, [39]
[7] CB197, [40]
[8] CB197, [41]
[9] CB197, [41]
Relying on country information, the Tribunal accepted that Hindus making claims to land are subject to moderate levels of official discrimination.[10] The Tribunal was not satisfied, however, that the applicant would take steps on return to Bangladesh to reclaim lost family property such as to lead to a real risk of his facing significant harm.[11] The Tribunal said it:[12]
was confident that the applicant’s genuine position, as indicated at the conclusion of the hearing before the adjournment, is that he would take not take steps because there is no process he could utilise to achieve this, and that he would not have the courage to do so, on the basis that he may be harmed by those who have taken the properties, particularly if they are associated with the Awami League. The Tribunal considers that this concern is realistic in light of the political and security situation in Bangladesh.
[10] CB198, [44]
[11] CB199, [49]
[12] CB198, [47]
The Tribunal was not satisfied the applicant would be at real risk of significant harm if he returned to Bangladesh from those who had previously targeted his family. The Tribunal relied on almost 20 years having passed after the culmination of the adverse attention the applicant’s family had received, the passage of 30 years after the applicant’s father had died, and the applicant and his family having been absent from Bangladesh since 1997.[13] In any event, the Tribunal found it would be reasonable for the applicant to relocate to Dhaka, and that to the extent the applicant would suffer any risk of harm if he were to return to his home area, that risk would be localised to that area.[14]
[13] CB199, [52]
[14] CB199-200, [55]-[59]
The Tribunal was not satisfied the applicant faces a real risk of harm on his return to Bangladesh because he is or may be perceived to be a supporter of the BNP or any other political party. That is so because the applicant did not claim any current political involvement and did not indicate he would wish to be politically involved on his return to Bangladesh.[15] The Tribunal further found that if it were wrong on this finding, and there remained a lingering perception of BNP affiliation, the Tribunal found the risk of harm would be localised, and it would be reasonable for the applicant to relocate to Dhaka to avoid harm on that basis.[16]
[15] CB200, [60]
[16] CB200, [60]
The Tribunal accepted the applicant would wish to continue to practice his Hindu religion on his return to Bangladesh; and it also accepted there are reports of a number of attacks against and harm suffered by Hindus. The Tribunal noted, however, that those reports need to be considered in the context of there being 13.5 million Hindus living in Bangladesh, being 8.5% of the entire population, there are no restrictions on Hindus practising their religion, and Hindus make significant contributions to Bangladeshi public life, including politics, academia, and the arts.[17] The Tribunal also accepted that militant extremism has increased in Bangladesh; but even based on increasing attacks the “statistical calculation”, namely, the comparison of the number of instances of harm compared with the total size of the Hindu population, when considered with the applicant’s own circumstances, the Tribunal concluded that the risk of significant harm to the applicant based on his being a Hindu is remote; and, for that reason, it was not satisfied the applicant faces a real risk of significant harm in Bangladesh based on the practice of his Hindu religion.[18]
[17] CB200, [64]
[18] CB201, [68]
The Tribunal considered but did not accept the applicant’s claims that, on his return to Bangladesh, there is a real risk he would be forced to convert,[19] he would be harmed because he has lived in a Western country,[20] or because his family had in the past been well off.[21]
[19] CB201, [69]
[20] CB201, [71]
[21] CB201-202, [72]-[73]
Grounds
The applicant, who is not legally represented, relies on the grounds of application stated in the application he filed commencing these proceedings, on the grounds stated in a document titled “amended notice of appeal” the applicant filed on3 March 2017, and also on the matters set out in a document titled “Outline of Applicant’s Submissions” (OAS) filed on 27 July 2018. The applicant made some brief submissions before me, but he said that he relied on the matters he put in writing. I will consider separately the grounds stated in the application, the “amended notice of appeal”, and the OAS.
Grounds in Application
The application contains the following grounds of application:
1. The Administrative Appeal Tribunal (Refugee)(the Tribunal) made error of law and failed to exercise the proper procedure I relation to make decision on the review of the applicant’s protection visa rejection by the Minister’s delegate.
2. The manner in which the tribunal dealt with the application and the applicant was such that it is possible to fairly apprehend that the tribunal did not bring an impartial mind to the resolution of the matter before it.
3. The second respondent has denied the applicant’s natural justice and procedural fairness pursuant to s423A and 430(1)(c) and (d) of the Migration Act 1958.
4. The applicant claims that the Tribunal was preoccupied and that was why he was denied natural justice and procedural fairness when the Tribunal formed the view about the applicant before the hearing. Preoccupation is clearly authenticated in its decision that the Tribunal has cut & pasted from the delegate’s decision.
5. The applicant was deprived of the natural justice and procedural fairness. Because the decision maker did not afford the applicant whose interest has adversely affected by the decision as it did not given the opportunity to present his case. The Tribunal did not follow the hearing rule as based on Maxim which is clearly recognized as a denial of procedural fairness.
Ground 1 discloses no jurisdictional error because it does not identify the error it is claimed the Tribunal made, and it does not identify the procedure it is claimed the Tribunal ought to have followed but failed to follow.
Ground 2 also discloses no jurisdictional error because it does not identify the acts or omissions of the Tribunal which it is claimed constituted the manner in which the Tribunal dealt with the application for review, or how what the Tribunal did or did not do might indicate to an impartial lay observer that the Tribunal might not bring an impartial mind to bear on the application for review.
Ground 3 also discloses no jurisdictional error. Section 423A of the Act applies where an applicant raises a claim before the Tribunal that has not been raised before the primary decision maker. There is nothing in the Tribunal’s reasons which suggests the Tribunal relied on s.423A of the Act. Further, s.430(1)(c) and (d) of the Act relates to requiring the Tribunal to record in the written statement the Tribunal is required to make under s.430(1) of the Act findings in material questions of fact, and evidence or other material on which the findings of fact are based. There is nothing to suggest the Tribunal had not complied with ss.430(1)(c) and (d) of the Act; and in any event the Tribunal’s decision would not have been invalid had it not complied with s.430 of the Act.[22]
[22] Minister for Immigration and Citizenship v SZLSP [2010] FCAFC 108, at [85] (Rares J): “This does not permit s 430(1) to be construed as a requirement that goes to jurisdiction in the sense that the decision will be invalid because a written statement has not been prepared.”
Ground 4 complains the Tribunal was “preoccupied”. It is not clear what the ground intends to mean by this word. A reasonable construction is that the Tribunal did not consider or properly consider the applicant’s claims. The ground seeks to support that claim with the assertion that the Tribunal “cut & pasted from the delegate’s decision”. The ground, however, does not identify the part or parts of the delegate’s decision the Tribunal is said to have “cut & pasted”. It is not apparent from the material before me that the Tribunal did any “cut and paste”. It may be that this ground is intended to refer to the passage from the RRT’s judgment the Tribunal set out in its reasons.[23] If so there is nothing objectionable in the Tribunal reproducing what it accurately describes as a passage from the RRT’s reasons. In any event, it is apparent from my summary of the Tribunal’s reasons, and I find, that the Tribunal correctly understood and considered the applicant’s claims. Ground 4, therefore, discloses no jurisdictional error.
[23] At CB191-193, [18]
Ground 5 claims the Tribunal denied the applicant natural justice and procedural fairness by not affording the applicant an opportunity to present his case. The ground does not identify what aspect of the applicant’s case the ground claims the Tribunal denied the applicant an opportunity to present, or the acts or omissions by which it is claimed the Tribunal failed to provide the applicant with an opportunity to present his case. In any event, from the Tribunal’s reasons themselves, it is apparent the Tribunal did give the applicant a reasonable opportunity to present his case. The Tribunal’s reasons show the Tribunal asked the applicant questions, and put to the applicant concerns it had. Ground 5, therefore, also fails.
“Amended Notice of Appeal”
The “amended notice of appeal” repeats in large measure the grounds contained in the application; but it includes claims or submissions under the heading of “Particulars”.
Grounds in “amended notice of appeal”
Ground 1 of the “amended notice of appeal” is the same as ground 1 of the application except the words “Minister’s delegate” have been replaced by the words “first respondent”. Ground 2 of the “amended notice of appeal” is the same as ground 2 of the application except it includes the words “and the applicant” after the words “with the application”. Grounds 3 and 4 of the “amended notice of appeal” are identical to grounds 3 and 4 of the application. Ground 5 of the “amended notice of appeal” is sufficiently different from ground 5 of the application that it merits my setting it out (errors in original):
The applicant was deprived of the natural justice and procedural fairness. The tribunal did not give neutral view in assessing/reviewing the applicant’s claim whose interest has adversely affected by the primary decision. The review authority did not given the applicant opportunity in a correct manner to present his case. The Tribunal did not follow the hearing rule as based on Maxim which is clearly recognized as a denial of procedural fairness.
This ground, considered alone, does not disclose any jurisdictional error. It does not identify the acts or omissions of the Tribunal which the ground claims constituted the Tribunal’s denying the applicant of procedural fairness, or which constituted the Tribunal’s not giving the applicant an opportunity to present his case in a correct manner, or which constituted the Tribunal’s not following the hearing rule. Nor does the ground identify the acts or omissions on the basis of which it is claimed the Tribunal did not neutrally consider the applicant’s case.
Grounds in “Particulars” to “amended notice of appeal”
The “Particulars” contain a number of claims or assertions. First, it is claimed that the Tribunal “totally disregarded the fact that the additional information that [the applicant] submitted to the tribunal during his hearing on 10/11/2016”. It is not clear to what information this ground intends to refer. Perhaps the ground is intended to refer to the country information the applicant’s representative provided or identified after the hearing in a letter dated 15 November 2016.[24] That letter identifies the country information which it claimed to be relevant to “land grabbing” targeting Hindus, extortion by the Awami League politicians, recent attacks on Hindu minorities, and growing Islamic terrorism in Bangladesh. If this is the information this part of the “Particulars” contends the Tribunal disregarded, I do not accept the contention. The Tribunal in its reasons referred to “[f]urther independent information” having been provided following the hearing.[25] I find the Tribunal intended “[f]urther independent information” to refer to the country information described in the applicant’s representative’s letter of 15 November 2016.
[24] CB144-181
[25] CB195-196, [25], [26]
Second, the “Particulars” assert the Tribunal relied on country information and inconsistencies between the claims the applicant made in his application for a Protection visa and the claims he made before the Tribunal as part of its reasons for affirming the delegate’s decision, and did not put those inconsistencies in writing to the applicant for comment. I take this to be a claim the Tribunal failed to comply with s.424A of the Act. To the extent that claim is made, I do not accept it. First, country information is information of the sort identified in s.424A(3)(a) of the Act; that is, it is information “not specifically about the applicant or another person and is just about a class of persons of which the applicant of which the applicant or other person is a member”. That means that by operation of s.424A(3) of the Act, s.424A did not apply to the country information on which the Tribunal relied. Second, to the extent the Tribunal relied on inconsistencies between claims the applicant made as a reason or part of the reason for affirming the delegate’s decision, those inconsistencies were not “information” for the purposes of s.424A of the Act. They cannot be characterised as containing in their terms a “rejection, denial or undermining of” the applicant’s case.[26]
[26] Minister for Immigration and Citizenship v SZLFX [2009] HCA 31, at [22]
Third, the “Particulars” assert the Tribunal “committed legal error by failing to consider those documents as required” by s.424(1) of the Act. It is unclear which documents it is here asserted the Tribunal did not consider. For that reason this assertion discloses no jurisdictional error.
Fourth, the “Particulars” assert the Tribunal only briefly described the definition of “refugee defined in the UN Convention”, and the definition of “Complementary Protection visa (ss36(2A) of Migration Act 1958”, and otherwise failed to confirm with the applicant whether he understood what the crucial issues were, but simply assumed the applicant understood the issues. As a consequence the Tribunal lost its neutrality. These claims fail for a number of reasons. The transcript of the hearing before the Tribunal is not in evidence, so it is not possible to assess the nature of the explanation the Tribunal gave and the extent to which the applicant understood the issues. Second, the applicant had the benefit of legal assistance in connection with his application for review. That fact by itself prevents me from being satisfied the applicant did not understand the issues. Third, whether or not the applicant understood the issues does not by itself mean the Tribunal made any jurisdictional error. The relevant question is whether the Tribunal provided the applicant a “real and meaningful” invitation under s.425 of the Act to appear before the Tribunal to give evidence and present arguments.[27] There is nothing in the Tribunal’s reasons that could reasonably suggest the applicant’s invitation to appear before the Tribunal was not real and meaningful.
[27] Minister for Immigration & Multicultural & Indigenous Affairs v SCAR [2003] FCAFC 126, at [37]
Fifth, the “Particulars” assert the Tribunal rejected the applicant’s entire claim without giving the applicant the benefit of the doubt, and by requiring the applicant to strictly prove his claims. The “Particulars” refer to paragraphs 39, 61, and 62 of the Tribunal’s reasons. I do not accept this assertion. The Tribunal accepted most of the applicant’s evidence. That is evident in the findings made in paragraphs 39, 61, and 62, each of which is in favour of the applicant.
Sixth, the “Particulars” assert the Tribunal erred in finding that the applicant as a Hindu in Bangladesh had concocted all of his claims. I do not accept that assertion because the Tribunal made no finding that the applicant had concocted his claim based on his being a Hindu.
Seventh, the “Particulars” assert the Tribunal erred in failing to apply the correct subjective and objective test of well-founded fear and erred in failing to consider whether, “as a Hindu minority, there was a real chance the applicant may suffer persecution in the reasonably foreseeable future by reason of his political beliefs”. I do not accept these assertions. First, the applicant’s claims were required to be assessed only against the complementary protection criterion provided for by s.36(2)(aa) of the Act, not the refugee criterion provided for by s.36(2)(a) of the Act. Second, and as I have already noted, the Tribunal considered whether, but was not satisfied that, the applicant faces a real risk of significant harm in Bangladesh based on the practice of his Hindu religion, and whether the applicant faces a real risk of harm on his return to Bangladesh because he is or may be perceived to be a supporter of the BNP or any other political party.
Eighth, the “Particulars” assert the Tribunal relied on the “extract from the primary decision on which it relied”, that it was bound to comply with s.424A of the Act in relation to that extract, and the Tribunal was “quite influenced and biased by the primary decision given by the delegate”. To the extent the “Particulars” use the words “extract from the primary decision” to refer to an extract from the delegate’s decision, the Tribunal did not set out in its reasons any extract from the delegate’s decision. To the extent “extract from the primary decision” is intended to refer to the extract from the RRT’s reasons for decision the Tribunal set out in its reasons,[28] the passage the Tribunal set out cannot be characterised as containing a “rejection, denial or undermining of” the applicant’s case.[29] Section 424A of the Act did not apply, therefore, to the passage from the RRT’s reasons for decision. Further, there is nothing to suggest that the Tribunal considered any information contained in the passage from the RRT’s reasons as a reason or part of the reason for affirming the delegate’s decision.
[28] At CB191-193, [18]
[29] Minister for Immigration and Citizenship v SZLFX [2009] HCA 31, at [22]
Ninth, the “Particulars” assert the Tribunal at no stage during the hearing brought to the applicant’s notice the adverse conclusions that it was to make against him. That may be so; but the Tribunal was under no obligation to do so. It was not obliged to comply with s.424A in relation to its conclusions because s.424A of the Act applies to “information” and that word “does not encompass the Tribunal’s subjective appraisals, thought processes or determination”.[30]
[30] VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123 at [24]
The OAS
The OAS makes a number of claims. First, it repeats the assertion made in the “Particulars” that the Tribunal relied on country information and on inconsistencies between the claims the applicant made in his application for a Protection visa and the claims he made before the Tribunal as part of its reasons for affirming the delegate’s decision.[31] For the reasons I have already given, the Tribunal did not fail to comply with s.424A of the Act to the extent it did rely on country information or on such inconsistencies.
[31] OAS, [1-3], [4]
Second, the OAS claims the Tribunal did not put to the applicant whether the applicant could safely relocate.[32] I do not accept that claim. According to the Tribunal’s reasons, the Tribunal asked the applicant questions about the applicant’s relocating. For example, the Tribunal’s reasons refer to the Tribunal indicating to the applicant “that he may be able to live safely in Dhaka if there were difficulties in his home area”.[33] In any event, even if the Tribunal made some error in the manner it considered or questioned the applicant about relocation, the Tribunal was satisfied the applicant did not face a real risk of significant harm if he were to return to his home area.
[32] OAS, [4]
[33] CB199, [54]
Third, the OAS claims the Tribunal failed to disclose to the applicant the particular construction the Tribunal gave “to the different information from the independent sources”.[34] This is a claim that the Tribunal did not disclose the country information on which it relied. For reasons I have already given, the s.424A of the Act does not apply to the country information on which the Tribunal relied.
[34] OAS, [4]
Fourth, the OAS repeats the assertions made in the “Particulars” based on the Tribunal’s having relied on the “extract from the primary decision”.[35] For the reasons I have already given, to the extent that assertion refers to the Tribunal’s setting out in its reasons the extract from the RRT’s reasons for decision, s.424A of the Act did not apply to the extract.
[35] OAS, [4]
Fifth, the OAS appears to claim it was not open to the Tribunal to rely on the general country information “to weigh against the applicant’s case”. That is incorrect. As was said by the Full Court of the Federal Court of Australia in NAHI v Minister for Immigration & Multicultural & Indigenous Affairs:[36]
There can be no objection in principle to the Tribunal relying on ‘country information’. The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function. . . . . It is not . . . an error of law, or a jurisdictional error, for the Tribunal to base a decision on ‘country information’ that is not true. The question of the accuracy of the ‘country information’ is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of ‘country information’, it would be engaging in merits review.
[36] [2004] FCAFC 10, [11] (Gray, Tamberlin, Lander JJ)
Sixth, the OAS claims the Tribunal “erred in holding that the applicant is an ‘incredible witness’ as he failed to state his political activities and fears to the tribunal”.[37] This does not reflect any finding the Tribunal made. The Tribunal did not accept, however, part of the applicant’s evidence, and that related to the evidence the applicant gave about his intention to recover his family’s property if he were to return to Bangladesh. I have reproduced earlier in these reasons what the Tribunal in its reasons for decision records the applicant said at the hearing before it. The Tribunal records the applicant gave inconsistent evidence where the applicant initially stated he had no intention of recovering the property but then stated he did have that intention. It was reasonably open to the Tribunal in those circumstances to find, as it did, that the evidence the applicant gave first in time was more credible than the inconsistent evidence he gave at the later time.
[37] [4]
Seventh, the OAS asserts the Tribunal erred in holding the applicant was not pursued and threatened by the opposition parties. That does not reflect any finding the Tribunal made. The Tribunal accepted the applicant’s claim that he and his family had been driven by extremist Muslims, and it was prepared to accept there may have been Awami League interests involved in the intimidation of the applicant’s family on the basis of the family’s BNP linkages.[38]
[38] CB197, [39]
Eighth, the OAS claims the Tribunal used “a template of the usual recital of the law relating to the convention” but the Tribunal failed to show how this applied to the applicant’s case.[39] It is true the Tribunal included in its reasons what may reasonably be characterised as a template statement of the criteria for the granting of a Protection visa under s.36(2) of the Act, most of which related to the refugee criterion provided for by s.36(2)(a) of the Act; and it is also true the Tribunal did not apply what it there said about s.36(2)(a) to the applicant’s case. But this does not disclose any jurisdictional error. The Tribunal correctly proceeded on the basis that the matter before it “relates only to [the] complementary protection criterion (section 36(2)(aa) of the Act)”.[40]
[39] OAS, [4], page 4
[40] CB189, [15]
Ninth, the OAS claims the Tribunal “totally disregarded the fact that the new information that were submitted to the first respondent in his second PV application”.[41] This repeats claims the applicant has already made, and which I have not accepted, that the Tribunal relied on country information and on inconsistencies between the claims the applicant made in his application for a Protection visa and the claims he made before the Tribunal as part of its reasons for affirming the delegate’s decision. The OAS also claims the Tribunal failed to give the applicant an opportunity to respond to the findings the Tribunal made that “the documents tendered by the applicant were inconsistent or not genuine”. The Tribunal made no such findings and, for that reason alone, it was not required to provide the applicant with an opportunity to respond about potential findings about documents not being consistent or genuine.
[41] OAS, [5]
Tenth, the OAS repeats the claims the applicant has already made that the Tribunal failed to confirm with the applicant that he understood the crucial issues, that the Tribunal failed to give the applicant the benefit of the doubt, that the Tribunal did not bring to the applicant’s notice the adverse conclusions it intended to make, the Tribunal found the applicant had concocted evidence, and the Tribunal was “preoccupied”.[42] For the reasons I have already given I do not accept these claims.
[42] OAS, [6]
Eleventh, the OAS claims the Tribunal failed to review the applicant’s case with a “fresh look” and consider relevant documents that were submitted.[43] I do not accept that claim. My summary of the Tribunal’s reasons demonstrates the Tribunal did consider the applicant’s case in the manner in which it was required.
[43] OAS, [6]
Other issues
During the hearing I asked Mr Hutton, who appeared for the Minister, whether there was any significance to the Tribunal’s concluding that the applicant would not seek to recover his family’s property, and therefore expose himself to the risk of harm, because he would not have the courage to expose himself to such risk. The question arose whether this reasoning gave rise to a difficulty of the sort that was considered by the High Court in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs.[44] Mr Hutton sought, and I granted him leave to file written submissions on that question.
[44] [2003] HCA 71
In his written submissions the Minister referred to the judgment of Judge Driver in SZSWB v Minister for Immigration and Border Protection where his Honour said:[45]
At the heart of the decisions in Appellant S395 and SZSCA is the proposition that protection visa applicants should not be required to deny or conceal a Convention attribute in order to find safety in their country of origin when that Convention attribute is the basis upon which they seek protection in Australia.
The Convention in issue in those cases was the Refugees Convention. There is, however, no logical reason why the same principle should not apply to the Conventions which support the complementary protection provisions of the Migration Act – in particular, the International Covenant on Civil and Political Rights (ICCPR). A protection visa applicant cannot claim complementary protection in respect of conduct consistent with the ICCPR. Conversely, it would be an error for the Tribunal to expect a protection visa applicant to forego a right conferred by the ICCPR in order to find safety in his or her country of origin, especially if it was the exercise of that right which gave rise to the harm feared by the applicant. . . .
As noted earlier, the Tribunal’s error was a failure to determine whether the applicant’s modified conduct was influenced by the threat of harm he faced, which was inconsistent with the ICCPR, before finding that the applicant did not face a real risk of significant harm.
[45] [2014] FCCA 765
Mr Hutton also drew my attention to the judgment of Judge Street in BPX17 & Anor v Minister for Immigration & Anor where his Honour said:[46]
Mr Jones skilfully argued that because the real chance and real risk test are the same it should follow that the principles in S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 in respect of persecutory harm had direct application to the issue of significant harm under s 36(2)(aa). Significant harm is defined by s 36(2A). I do not accept the submission that S395 has direct application in terms of the suppressing of an attribute to the determination of complementary protection.
[46] [2017] FCCA 3047 at [25]
Although appeals have been brought against the orders made by Judge Driver in SZSWB and Judge Street in BPX17, the question of the application of the principles consider in S395 to the assessment of claims made under s.36(2)(aa) of the Act was not considered in either appeal.
I do not need to decide which of the decisions of Judge Driver and Judge Street I should follow. That is so because even on Judge Driver’s approach the Tribunal in the case before me did not fail to apply what Judge Driver considered to be the principle in S395. Judge Driver said that “it would be an error for the Tribunal to expect a protection visa applicant to forego a right conferred by the ICCPR in order to find safety in his or her country of origin, especially if it was the exercise of that right which gave rise to the harm feared by the applicant” (emphasis added). There is nothing in the Tribunal’s reasons for decision that suggests the Tribunal proceeded on the basis that it expected the applicant take steps to avoid the risk of harm he would face if he were to take steps to recover the family property. The Tribunal simply found that the applicant had himself decided he would take no such steps because he was unwilling to assume the risk of harm the taking of such steps would entail; and the Tribunal assessed the applicant’s claims on that basis.
The Tribunal’s approach was consistent with the reasoning in S395 as that reasoning was explained by the plurality in Minister for Immigration and Border Protection v SZSCA:[47]
The essential reasoning in S395 was that the Tribunal had diverted itself from its task of determining whether there would be a real chance that the applicants would be persecuted if they returned to Bangladesh, by focusing on an assumption about how the risk of persecution might be avoided. Gummow and Hayne JJ said that the enquiry was what might happen if the applicants returned, not whether adverse consequences could be avoided. It followed that the issue to which the correct enquiry was directed – whether the fear of persecution was well founded – had not been addressed.
[47] [2014] HCA 45 at [17]
The Tribunal in the case before me did that which Besanko J found the Tribunal did in CNW15 v Minister for Immigration and Border Protection, namely:[48]
The Tribunal did not require the applicant to do anything. It simply made findings as to what he was likely to do.
[48] [2018] FCA 849, at [37]
In my opinion, therefore, the Tribunal made no jurisdictional error by concluding that the applicant would not seek to recover his family’s property, and therefore expose himself to the risk of harm, because he would not have the courage to expose himself to such risk, and to assess the applicant’s claims on the basis of that finding.
Before I leave this section of my reasons, I should note the Minister’s submissions that even if S395 applies, the Tribunal found that the harm to which the applicant would be exposed would not amount to “significant harm”. The Minister relies on the following passage from the Tribunal’s reasons:[49]
The Tribunal is not satisfied that, the fact the applicant would take action to reclaim family land due to lack of avenues to achieve this, and the risk of harm should he try, falls within any definition of significant harm for the purpose of the complementary protection criterion.
[49] CB199, [50]
I accept the Minister’s submission. That means that even if the Tribunal was incorrect when assessing the future risk of harm to the applicant to rely on the applicant’s not taking action to reclaim his family’s property because he feared risk of harm to himself if he did so, that would not have been a material error because the Tribunal was in any event not satisfied that the risk of harm the applicant feared was significant harm for the purposes of the complimentary protection criterion.
Disposition and costs
For these reasons, I propose to order that the application be dismissed.
As to the question of costs, I note that at the hearing the applicant informed me he did not propose to attend on the day I proposed to hand down judgment. I explained to the applicant that my usual practice is to hear submissions as to costs on the day I hand down judgment, noting that the usual order as to costs is that the losing party is ordered to pay the costs of the successful party. Mr Hutton informed me that if the Minister were to succeed he would seek costs set in the amount of $5,000. The applicant said he had nothing to say about costs.
There is no reason why the applicant, being the unsuccessful party, should not be ordered to pay the Minister’s costs. I am satisfied it is appropriate to set those costs in the sum of $5,000. I propose, therefore, to also order that the applicant pay the Minister’s costs set in the amount of $5,000.
I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Date: 21 September 2018
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