EUP18 v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 248
•26 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
EUP18 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 248
File number(s): SYG 2609 of 2018 Judgment of: JUDGE LAING Date of judgment: 26 February 2025 Catchwords: MIGRATION – application for judicial review of a decision by the Administrative Appeals Tribunal – whether the Tribunal failed to consider evidence or an integer of the applicant’s claims – whether the Tribunal fell into the species of error considered in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; (2003) 216 CLR 473 – application succeeds Cases cited: Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; (2003) 216 CLR 473
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 98 ALJR 610
Minister for Immigration & Multicultural & Indigenous Affairs v VWBA [2005] FCAFC 175
Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176; (2017) 257 FCR 111
Division: General Number of paragraphs: 40 Date of hearing: 19 September 2024 & 10 February 2025 Place: Sydney Counsel for the Applicant: Ms F McNeil Solicitor for the Applicant: MS Haque and Associates Counsel for the First Respondent: Mr G Johnson Solicitor for the First Respondent: Sparke Helmore Lawyers Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 2609 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EUP18
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LAING
DATE OF ORDER:
26 FEBRUARY 2025
THE COURT ORDERS THAT:
1.A writ of certiorari issue quashing the decision of the Administrative Appeals Tribunal dated 21 August 2018 in case number 1511268.
2.A writ of mandamus issue directed to the Administrative Review Tribunal requiring it to reconsider and determine the matter according to law.
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:
The applicant seeks judicial review of a decision made by the Administrative Appeals Tribunal (as it was) (Tribunal). The Tribunal affirmed a decision of a delegate (Delegate) of the first respondent (Minister) refusing to grant the applicant a Protection (Subclass 866) visa (protection visa).
For the following reasons, the application before the Court succeeds.
BACKGROUND
The applicant is a citizen of Bangladesh, who applied for a protection visa on 19 December 2014.
On 23 July 2015, the Delegate refused the application.
On 18 August 2015, the applicant applied to the Tribunal for review of the Delegate’s decision. The applicant attended a hearing before the Tribunal on 30 July 2018.
On 21 August 2018, the Tribunal affirmed the Delegate’s decision.
THE TRIBUNAL’S DECISION
The Tribunal considered at [21]-[59] of its decision the applicant’s claims about members of his family being harassed, kidnapped, threatened and extorted by members of Jamat-i-Islam Party (JI).
The Tribunal at [60] found the applicant not to be a credible or truthful witness in relation to his claims regarding threats and harassment from JI. This was by reference to issues identified with the applicant’s evidence at [61]-[75] of its decision. The Tribunal concluded at [73]-[75]:
73.I do not accept that members of JI or anyone else demanded land belonging to the applicant’s family in 2011, or that he, his wife and children were kidnapped in 2011 and released after promising to pay their abductors about $150,000 at some time in the future, or that they continued to demand that he pay this money and harassed and abused him and other family members for payment until he left Bangladesh, or that members of JI attacked and damaged or destroyed his family home in [redacted] in 2014 or at any other time. I find that these claims were all concocted to support his case for protection in Australia.
74.I also noted the related claims that JI believes that the applicant is rich and cheated the group by not paying the money they demanded or that he was blessed by Christians to be lacking in credibility. However, there is no credible evidence before me which suggests that the applicant is or ever was of adverse interest to JI or anyone else for any reason prior to his departure from Bangladesh and I also reject these claims.
75.After considering all of the relevant evidence, I am not satisfied that the applicant faces a real chance of experiencing serious or significant harm if he returns to Bangladesh because he or his family have been threatened or harassed by JI or another group in relation to an attempt [to] take land belonging to them or an attempt to extort money from them.
The Tribunal considered that the applicant had not otherwise provided evidence suggesting that he faced significant problems in Bangladesh because of his ethnicity (at [76]). Despite some doubts, the Tribunal accepted that the applicant was a Santal (at [79]). However, the Tribunal was not satisfied that he suffered serious discrimination because of his ethnicity prior to departing Bangladesh (at [79]). The Tribunal found the applicant’s evidence regarding the problems he claimed to have faced “confused and unconvincing” (at [81]). Although the Tribunal accepted that the applicant may have faced some degree of discrimination in the past, it did not accept that he faced serious or significant harm on this basis or that there was a real chance that he would do so on account of his ethnicity in Bangladesh in the reasonably foreseeable future (at [80]-[83]).
The Tribunal accepted that the applicant was a Christian from a Christian family (at [84]). The Tribunal did not accept that the applicant faced a real chance of relevant harm on this basis (at [84]-[86]). As the interpretation of the Tribunal’s reasons in this regard is the subject of contention, it will be considered further below.
Having regard to the above, the Tribunal was not satisfied that the applicant met the criteria for a protection visa. Accordingly, the Tribunal affirmed the Delegate’s decision (at [87]-[92]).
PROCEEDING BEFORE THIS COURT
The applicant commenced the current proceeding through an application filed on 17 September 2018. The matter remained in the central migration docket for some time and was previously docketed to another judge before being docketed to me and listed for hearing. The applicant ultimately relied upon an amended application filed on 3 December 2024 containing the following grounds:
Ground 1
At the time the applicant left Bangladesh for Australia, he was married with two children. Part of his claims was that he feared persecution such that he felt compelled to leave his wife and children to seek safety. If the applicant had a close and loving relationship with his wife and children when he left Bangladesh, the fact that he left Bangladesh in November 2014 and, in pursuit of obtaining a protection visa in Australia, had not returned by the date of the AAT's decision in August 2018, supports a conclusion that he had (and continues to have) a genuine fear of harm. The AAT should have considered, but did not consider, this issue in assessing the applicant's claims.
Ground 2
The applicant claimed he was a member of the Santai indigenous group, and he faced a real chance of serious harm on this basis if required to return to Bangladesh. The AAT accepted the applicant was Santal. However, the AAT found that it was "not satisfied that he suffered serious discrimination because of his ethnicity prior to departing Bangladesh": at [79]. One reason for this finding was a reasoning process by the AAT at [80] that "if he had been ostracised and faced serious discrimination ... as claimed at the hearing I believe that he would have mentioned these problems prior to the hearing". The applicant, in fact, mentioned problems of discrimination prior to the hearing on 30 July 2018. The AAT overlooked this part of the applicant's evidence (being his prior claims of discrimination). This is a jurisdictional error.
Ground 3
The decision of the AAT is affected by jurisdictional error, in that the AAT failed to perform the statutory task that fell to it or failed to consider the Applicant's claim, pursuant to the Migration Act 1958 (Cth): s36(2)(a), s5H(1)(a), s5J.
Particulars
(a)The AAT accepted that the applicant is a Christian and comes from a Christian family (AAT reasons at [84]).
(b)The AAT also accepted it is plausible that the applicant may have been threatened if involved in evangelising to non-Christians (AAT reasons at [86]).
(c)The AAT further found that "there is no suggestion that [the applicant] was involved in evangelising to non-Christians after he moved to Dhaka or that he has any intention of evangelising to non-Christians if he returns to Bangladesh, and I do not accept that there is a real chance he will suffer serious or significant harm [on] return to Bangladesh for evangelising to non Christians". The latter finding was not open to the AAT.
(d)The Tribunal failed to consider why the applicant will act in that way (namely, in not evangelising to non-Christians), giving rise to an error of the kind identified in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 1.
Ground 1 – the applicant’s family
Under ground 1, the applicant contended that the Tribunal failed to consider an integer of his claims. This was said to have been that the applicant had been compelled to leave his family in Bangladesh and had not returned by the time of the Tribunal’s decision some years later.
The applicant observed that the Tribunal had accepted at [9]:
9.… He married in 2007 and has two children… His wife and children currently reside with members of his wife’s family in Dhaka…
The applicant submitted that part of his claims was that he feared persecution such that he felt compelled to leave his wife and children to seek safety. At CB 310-311, he stated:
23. I have a real fear of persecution if I return Bangladesh now...
24.I left my beloved wife and children at home including other members at risk. Physically, mentally and psychologically, I am affected in thinking about the death and any harms of the members of the family."
The applicant submitted that, if he had a close and loving relationship with his wife and children when he left Bangladesh, the fact that he left Bangladesh in 2014 and had not returned by the date of the Tribunal’s decision supported a conclusion that he had (and continues to have) a genuine fear of harm. The applicant contended that the Tribunal did not consider this issue and therefore failed to consider a component integer of his claims.
I accept the Minster’s submissions as to why this ground is unable to succeed. As the Minister submitted, the applicant did not claim that his leaving of his family was a claim for protection, either as itself or as a component integer. It is not apparent how such a claim (or integer of a claim) could be said to have clearly arisen.
The applicant did give evidence, as set out above, that he had left his family. This was said to have occurred for the reasons claimed (namely, because of the claimed threats from JI, as well as issues arising from his ethnicity and Christian faith). The Tribunal had regard to the applicant’s evidence that he had left his family and that he feared for their safety (at [9], [34] and [42]). However, the Tribunal did not accept the claimed basis of the fear for their safety nor the applicant’s claimed reasons for leaving Bangladesh (at [60]-[86]).
In these circumstances, I am not persuaded that the Tribunal failed to consider the applicant’s claims regarding his family, any component integer thereof, or the applicant’s evidence regarding his family. The Tribunal was not obliged to reason in the manner suggested by the applicant, namely that the fact that he had left his family strongly supported his claims for protection. As the Minister submitted, there can be a number of reasons for a person leaving their family in one location and residing in another. The fact that the applicant did so did not necessarily corroborate the applicant’s claims for protection. The Tribunal was not obliged to reason that it did.
For the above reasons, ground 1 is unable to succeed.
Ground 2 – prior evidence of discrimination
Ground 2 contended that the Tribunal overlooked the applicant’s prior claims of discrimination when reasoning at [79]-[80] that it was not satisfied that he had faced serious discrimination and that “if he had been ostracised and faced serious discrimination such as being unable to sit on buses or buy good clothes or vegetables as claimed at the hearing … he would have mentioned these problems prior to the hearing".
The applicant observed that in his original statement (prior to the Tribunal hearing), he had said (at CB 55):
…As an aboriginal Santali person I am suffering a lots. We don’t have any government position no official job even some time we are not able to walk in street no tucking to others no public support no jobs nothing to do we have at this moment because I am Santal it is not only for me but all Santali young man woman’s...
In a subsequent statement (also prior to the Tribunal hearing), the applicant said (at CB 303):
10.As an aboriginal Santali person, I did suffer a lot. We did not held any government positions or any official jobs or even sometimes we could not walk freely in the street and could not talk to others. As a Santal it is not only for me but all Santali you men and women.
The applicant contended that this evidence was overlooked by the Tribunal.
The Tribunal’s reasoning at [79]-[80], which was relied upon by the applicant, needs to be understood in context. At [76], the Tribunal observed that in the applicant’s initial statement to the Department, and in the subsequent version provided to the Tribunal, the applicant had spoken “in general terms” about problems faced by Santal people but had not given evidence about significant problems he had personally experienced on account of his ethnicity. It has not been demonstrated that this interpretation of the evidence was closed to the Tribunal. Although the applicant referred to personal “suffering” generally, the problems he then described were expressed in collective terms.
The Tribunal observed that it had raised with the applicant at hearing that he had not mentioned “specific discrimination” that he had experienced. The applicant then made claims about not being able to sit on a bus or buy good vegetables or clothes. The Tribunal’s reasons record that, when the late raising of these claims was put to him, the applicant gave what was found to have been “confused and unconvincing” evidence in response.
In the above context, I am not persuaded that an inference ought to be drawn that the Tribunal failed to consider the evidence in question. The more likely inference is that the Tribunal considered this evidence, but did not consider that it sufficiently addressed the Tribunal’s concerns.
Ground 2 is therefore unable to succeed.
Ground 3 – S395
Ground 3 contended that the Tribunal fell into the species of error considered in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; (2003) 216 CLR 473 (S395). In S395, it was found that the Refugee Review Tribunal (RRT) erred in relying upon an expectation that the appellants would act discreetly regarding their sexuality in finding that they did not meet the criteria for protection. The RRT failed to consider whether acting discreetly “was a voluntary choice uninfluenced by the fear of harm if they did not live discreetly”. At [43], McHugh and Kirby JJ reasoned:
43.The notion that it is reasonable for a person to take action that will avoid persecutory harm invariably leads a tribunal of fact into a failure to consider properly whether there is a real chance of persecution if the person is returned to the country of nationality. This is particularly so where the actions of the persecutors have already caused the person affected to modify his or her conduct by hiding his or her religious beliefs, political opinions, racial origins, country of nationality or membership of a particular social group. In cases where the applicant has modified his or her conduct, there is a natural tendency for the tribunal of fact to reason that, because the applicant has not been persecuted in the past, he or she will not be persecuted in the future. The fallacy underlying this approach is the assumption that the conduct of the applicant is uninfluenced by the conduct of the persecutor and that the relevant persecutory conduct is the harm that will be inflicted. In many – perhaps the majority of – cases, however, the applicant has acted in the way that he or she did only because of the threat of harm. In such cases, the well-founded fear of persecution held by the applicant is the fear that, unless that person acts to avoid the harmful conduct, he or she will suffer harm. It is the threat of serious harm with its menacing implications that constitutes the persecutory conduct. To determine the issue of real chance without determining whether the modified conduct was influenced by the threat of harm is to fail to consider that issue properly.
The applicant relied upon Minister for Immigration & Multicultural & Indigenous Affairs v VWBA [2005] FCAFC 175 at [6], in which Sundberg and North JJ summarised the following principles arising from S395:
(a)The Tribunal will err if it assesses a claim on the basis that an applicant is expected to take reasonable steps to avoid persecution if returned to his or her country of origin. The Tribunal’s task is to assess what the applicant will do, not what he or she should do. See S395 at [40] and [50] per McHugh and Kirby JJ and at [80] and [82] per Gummow and Hayne JJ.
(b)If the Tribunal finds that a person will act in a way that will reduce a risk of persecution that would otherwise have been well‑founded, the Tribunal must consider why the person will act in that way. If it fails to do so, it commits a jurisdictional error. See S395 at [43] and [53] per McHugh and Kirby JJ and at [88] per Gummow and Hayne JJ.
(c)The Tribunal will err if, having found that a person will act in a way that will reduce a risk of persecution, it does not go on to consider whether the person nevertheless has a well‑founded fear of persecution because, despite the conduct that reduces the risk, there is still a real risk that the person will be persecuted. See S395 at [56] per McHugh and Kirby JJ and at [85]‑[86] per Gummow and Hayne JJ.
In Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176; (2017) 257 FCR 111 (BBS16), which was discussed with the parties at hearing, the Immigration Assessment Authority (IAA) found that the visa applicant was not a member of any political party and practised his religion “rarely”. It was not satisfied that such activity, or the applicant’s political profile, would increase in the reasonably foreseeable future. These findings informed the IAA’s assessment of the risk of harm. The Full Court (Kenny, Tracey and Griffiths JJ) considered at [82]-[83]:
82.Having regard to these findings by the IAA (which did not depend on any of the new information which was discarded by the IAA), in the light of S395 the IAA should have asked why the first respondent had not in the past practised his religion more extensively or been more politically active and, moreover, why he would not alter his past behaviour if he were returned to Iran. The IAA needed to inquire, and make relevant findings, as to whether this was because of the very harm which the IAA accepted confronted more prominent and active religious and political proponents…
83.Based on the IAA’s own findings, which flowed from the material before it, it had to consider whether the first respondent would not practice his faith more often and be more politically active on return to Iran because he feared the harm that would follow. Its failure to address these matters involves jurisdictional error.
In the present case, the Tribunal reasoned as follows in relation to the applicant’s religion (at [84]-[86]):
84.I accept that the applicant is a Christian and that he comes from a Christian family. According to his evidence at the hearing he completed a degree in theology and he worked for the BSFB for many years. This involved travelling to different areas and gathering church members together to talk about the Bible. His father also worked for the church as an accountant. His wife is also a Christian and his children currently attend a Christian school in Bangladesh. However, apart from the claims relating to harassment and attack by JI, which I do not accept, the applicant did not claim to have faced any other threats or harm because of his religion in his discussions with the delegate or at the hearing.
85.As noted above DFAT assesses that Christians face a low risk of societal violence, mostly related to occasional communal disputes over land and also face a risk of sporadic attacks from Islamist militants. In these circumstances and in the absence of any credible evidence that the applicant or any other member of his family is or was of adverse interest to anyone because of their religion, I am not satisfied that that the applicant faces a real chance of suffering serious or significant harm if he returns to Bangladesh because of his Christian religion.
86.In reaching this conclusion I have considered the letter from [an identified Church Council] dated 30 October 2014, which states that the applicant had been engaged in evangelical work in Rajshahi and had been threatened several times by JI because of this. It provides no further information on the reasons for or nature of these threats. This information is somewhat at odds with the evidence given by the applicant at the hearing when he said that his work with the BSFB involved speaking to people who were already Christian and said nothing about receiving threats from JI because of his work with the Church. In any event, while it is plausible that the applicant may have been threatened if he was involved in evangelising to non-Christians, there is no suggestion that he was involved in evangelising to non-Christians after he moved to Dhaka or that he has any intention of evangelising to non-Christians if he returns to Bangladesh, and I do not accept that there is a real chance that he will suffer serious or significant harm on return to Bangladesh for evangelising to non-Christians.
The Minister submitted that the Tribunal’s findings did not, in terms, include a finding requiring or expecting the applicant to behave a certain way. The Minister submitted that S395 therefore did not apply.
I am unable to accept this submission. The Tribunal relied at [86] upon its consideration that there was no suggestion that the applicant had continued evangelising after moving to Dhaka or intended to evangelise to non-Christians. This was in circumstances where a claim arose that the applicant had been threatened on account of his previous evangelising activities. The Tribunal’s reasoning at [86], without considering why he had not subsequently evangelised (or suggested that he would evangelise), falls within the species of error considered in cases such as S395 and BBS16.
The Minister submitted that any error in this regard was not material. The Minister submitted that the Tribunal’s reference at [85] to “the absence of any credible evidence that the applicant or any other member of his family is or was of adverse interest to anyone because of their religion” included rejection of any claim that the applicant had been threatened whilst evangelising. The reference to the claim in the letter at [86] was something that the Tribunal was submitted to have taken into account “[i]n reaching this conclusion” at [85]. The words “[i]n any event” in [86] were submitted to suggest that the impugned finding was an alternative finding. Any error in it was contended not to have infected the Tribunal’s primary finding at [85].
On balance, I am unable to accept the Minister’s submissions. The Tribunal did not clearly find at [85] that the applicant had not been threatened whilst evangelising. Even if the reference to “adverse interest” in that paragraph included reference to the claimed threats to the applicant from evangelising, it is apparent that the reasoning in relation to this evidence was exhibited at [86]. At [86], the Tribunal noted some issues with the evidence, including that it did not provide further information and that it seemed “somewhat at odds” with the applicant’s account of his religious expression. However, the Tribunal did not (at [86]) expressly reject the evidence, reasoning instead that, “[i]n any event”, there was no suggestion that he had continued to evangelise or that he would evangelise in the future.
The most likely reading of [86], therefore, is that the Tribunal noted issues with the evidence but did not see the need to conclusively determine its acceptance or non-acceptance given that the Tribunal considered that the applicant had ceased evangelising “[i]n any event”. In this context, even if [85] were read as a rejection of the evidence, it is apparent from [86] that the reasoning process that accompanied the rejection was, at least potentially, influenced by the S395 error. The threshold for materiality is not a high one: see LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 98 ALJR 610 at [14]. Although the outcome may well have been the same if the error had not been made by the Tribunal, it is at least possible that the outcome may have been different if the Tribunal’s reasoning at [85]-[86] had not been influenced by error.
For these reasons, I accept the applicant’s contention that jurisdictional error has been demonstrated under ground 3.
CONCLUSION
For the above reasons, the decision of the Tribunal will be quashed. The matter will be remitted to the Administrative Review Tribunal requiring the matter to be reconsidered and determined according to law.
I will hear from the parties in relation to costs.
I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing. Associate:
Dated: 26 February 2025
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