FUP17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 509
•6 June 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
FUP17 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 509
File number: SYG 4057 of 2017 Judgment of: JUDGE LADHAMS Date of judgment: 6 June 2024 Catchwords: MIGRATION – application for judicial review of a decision made by the Immigration Assessment Authority affirming a decision not to grant the applicant a protection visa – whether the Authority made findings which were not open to it – whether the Authority made findings which were unreasonable – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth) ss 5AA, 36, 473CA, 476, 477 Cases cited: ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109; [2016] FCAFC 174
Djokovicv Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3
Gill v Minister for Immigration and Border Protection (2017) 250 FCR 309; [2017] FCAFC 51
Masi-Haini v Minister for Home Affairs (2023) 298 FCR 277; [2023] FCAFC 126
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16
Division: Division 2 General Federal Law Number of paragraphs: 68 Date of hearing: 16 October 2023 Place: Perth (via Microsoft Teams) Counsel for the Applicant: Mr N Silva Solicitor for the Applicant: Bassan Lawyers & Associates Counsel for the First Respondent: Ms R Francois Second Respondent: Submitting appearance by the second respondent, save as to costs Solicitor for the Respondents: Clayton Utz ORDERS
SYG 4057 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FUP17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
6 JUNE 2024
THE COURT ORDERS THAT:
1.The application is 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 LADHAMS
INTRODUCTION
The applicant is a citizen of Bangladesh who applied for a protection visa. A delegate for the Minister refused to grant the applicant a visa and the Immigration Assessment Authority (Authority) affirmed the delegate’s decision on 5 December 2017. The matter is now before the Court for judicial review under s 476 of the Migration Act 1958 (Cth) (Migration Act).
The applicant raises three grounds of application which allege that the Authority fell into jurisdictional error by making findings that were not open to the Authority or were unreasonable.
For the reasons explained below, the applicant has not established that the Authority made a jurisdictional error in its decision. The application to this Court is therefore dismissed.
VISA APPLICATION AND DECISIONS
The applicant arrived in Australia by sea in January 2013 and is an unauthorised maritime arrival within the meaning in s 5AA of the Migration Act.
The applicant lodged his protection visa application on 23 March 2016. The applicant claimed to fear harm from the Awami League (AL) if he returns to Bangladesh on the basis of his and his family’s support of the Bangladesh Nationalist Party (BNP) and an allegation that he killed an AL member.
On 24 April 2017 the applicant attended an interview with an officer of the Minister’s Department to discuss his claims for protection.
On 7 July 2017 a delegate of the Minister refused to grant the applicant a protection visa.
The matter was referred to the Authority pursuant to s 473CA of the Migration Act. The applicant did not provide any submissions or new information to the Authority.
On 5 December 2017 the Authority affirmed the delegate’s decision.
SUMMARY OF THE AUTHORITY DECISION
The Authority accepted that the applicant is a Bangladeshi national and that Bangladesh is his receiving country.
Despite some concerns with the applicant’s credibility based on discrepancies in his claims over time and delay in the applicant putting forward relevant claims, the Authority accepted the applicant had some interest in the BNP and attended a number of the BNP gatherings or rallies. The Authority also accepted that the applicant’s shop may have been frequented by BNP members who piqued his interest in the BNP and invited him to attend their meetings. However, the Authority was satisfied that the applicant was not otherwise an active or visible supporter of the BNP.
Having considered country information that a declared state of emergency had commenced in January 2007 and certain fundamental rights were suspended until mid-December 2008, the Authority considered it implausible that public BNP or AL rallies were held in early 2008 as the applicant had claimed or that the applicant attended any such rally.
In the light of significant inconsistencies in the applicant’s evidence, varying accounts of his claims and implausibility of aspects of his narrative, the Authority did not accept the applicant’s claims regarding his role in a BNP rally, his claim to have been physically attacked by AL members due to his alleged responsibility for the death of an AL member, his claim that he went into hiding afterwards, his claim that AL members were looking for him in order to kill him or that his family members were visited and harmed by AL members prior to his departure from Bangladesh in 2012.
In considering whether the applicant met the refugee criterion in s 36(2)(a) of the Migration Act, the Authority was not satisfied that there was a real chance of the applicant suffering any harm from the AL party on return to Bangladesh or that he would be targeted by the AL due to any family associations with the BNP. The Authority was also not satisfied that the applicant would be politically active on return to Bangladesh or that any involvement would extend beyond merely supporting the BNP.
The Authority was therefore not satisfied that the applicant had a well-founded fear of any harm as a result of his or his family’s past or future support of the BNP. Having considered country information and the minor nature of the applicant’s political involvement since 2006, the Authority was also not satisfied that the applicant would face a real chance of any harm by the government authorities or others as a returning asylum seeker. The Authority therefore found that the applicant did not meet the requirements of s 36(2)(a) of the Migration Act.
The Authority relied on its earlier findings in concluding that the applicant did not face a real risk of significant harm and that the applicant did not meet the complementary protection criteria in s 36(2)(aa) of the Migration Act.
JUDICIAL REVIEW APPLICATION
The judicial review application was filed on 29 December 2017 and was therefore made within 35 days of the date of the Authority decision, as required by s 477(1) of the Migration Act.
By a further amended application filed on 31 August 2023, the applicant raises the following three grounds of application:
Ground 1
The IAA committed jurisdictional error by making a critical finding that it was not satisfied that the applicant was a visible supporter of the Bangladesh National Party (BNP), whereas this finding was not open to it, and/or it was unreasonable for it to make, as the overwhelming evidence supported the fact that the applicant was seen as a strong supporter of that party.
Particulars
(a)The Tribunal made the relevant finding at [11] of its decision.
(b)When considering if the applicant was a visible supporter of the BNP, and if he was harmed because of that reason, the question whether the applicant was ideologically committed to that party is not determinative but rather it was whether he was perceived by the persecutor as a supporter of that party.
(c)The applicant’s connection to the BNP has been comprehensively put by the applicant as it appears at CB102-106 and specifically at CB102. The applicant had stated there that everyone knew him as an activist of BNP and that the Awami League (AL) members knew him as a supporter of that party, and they hardly visited his shop. The IAA took no issue with that evidence.
(d)The IAA had accepted at [11] of its decision that:
(i)The applicant had attended a number of BNP gatherings or rallies.
(ii)His shop may have been frequented by BNP members who piqued his interest in that party through their informal discussions and they invited him to their meetings held at the marketplace hall.
(iii)His interest in the BNP was prompted by the local party members frequenting his shop and the discussion he heard while they were there.
(e) However, the IAA held at [11] that:
(i)It did not indicate that he held any strong personal political affiliation with the BNP ideology or any interest in politics other than the potential loss of trade arising from the AL coming to power.
Ground 2
The IAA made jurisdictional error in that it was not open to it, and/or it was unreasonable for it to find that the applicant will not engage in any BNP activities on his return to Bangladesh.
Particulars
(a)The IAA was aware of the applicant’s connection to the BNP as put by the applicant which appears at CB102-106.
(b)The IAA had accepted at [11] of its decision various aspects of his involvement in BNP related activities.
(c)The IAA noted the applicant’s evidence that “In Australia he had been attending BNP meetings on a regular basis at the local library where they discuss what is happening under the AL government and the treatment of BNP people”.
(d)The IAA had also found at [19] of its decision that “I accept that although the applicant was not a BNP member, he is sympathetic to the BNP and may continue to support the BNP on return to Bangladesh”.
(e)However, later at [19] of its decision the IAA found that “Given this and his minor political involvement prior to his departure, I am not satisfied that the applicant would be politically active on return to Bangladesh, or that his involvement would extend beyond merely supporting the party”.
(f)Even if the applicant was not ideologically committed to that party, his support for that party, the serious harm he experienced because of his support for that party which would have brought him closer to the party, and his continued support for that party while in Australia and the potential benefits his BNP involvement will give him if he returns to Bangladesh, does not support the finding by the IAA that he will not engage in any BNP activities on his return to Bangladesh.
Ground 3
The IAA made jurisdictional error in that it was not open to it, and/or it was unreasonable for the IAA to find that it was implausible that public BNP or AL rallies were held in early 2008 as claimed.
Particulars
(a)At [12] of its decision the IAA stated that “Given the state of emergency suspended certain fundamental rights and was enforced until mid-December 2008 when it was terminated just prior to the elections, and the peaceful lead up to the elections, I consider it implausible that public BNP or AL rallies were held in early 2008 as claimed or that the applicant attended any such rally”.
(b)The country information does not support such a finding. “UK Home Office, “Bangladesh August 2010”, 20 August 2010” which was referred to in foot note 1 on page 5 [13] of the IAA decision states at pg 20. that:
“Municipal elections were held in 13 city corporations and municipalities on August 4, 2008”.
(c) It is very likely that election rallies would have been held before this election.
(d)In any case the IAA could not make such a finding of implausibility as the finding of implausibility would require much stronger evidence in support to establish such a finding and it cannot be based on pure speculation.
The evidence before the Court comprises:
(a)the court book filed on behalf of the Minister on 23 January 2018;
(b)an affidavit of the applicant filed on 21 May 2018, annexing transcripts of interviews he attended with officers of the Department on 24 April 2017 (protection visa interview) and 8 February 2013 (entry interview) and extracts of the United Kingdom Home Office Country of Origin Information Report on Bangladesh dated 20 August 2010 (UK Home Office report); and
(c)further pages of the UK Home Office report which were not included in the applicant’s affidavit but which were referred to in the parties’ submissions to the Court.
RELEVANT PRINCIPLES
Each of the three grounds raised by the applicant asserts unreasonableness in the Authority’s fact finding.
The relevant principles can be derived from the authorities referred to in the parties’ submissions. These authorities include Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 (SZMDS), ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109; [2016] FCAFC 174 (ARG15), Gill v Minister for Immigration and Border Protection (2017) 250 FCR 309; [2017] FCAFC 51 (Gill) and Masi-Haini v Minister for Home Affairs (2023) 298 FCR 277; [2023] FCAFC 126 (Masi-Haini).
In SZMDS the High Court considered illogicality and irrationality in fact-finding by an administrative decision-maker. Justices Crennan and Bell explained at [131] and [135]:
131 … The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
…
135 … Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. …
In ARG15, the Full Court (Griffiths, Perry and Bromwich JJ) considered the reasoning in SZMDS and then continued at [47]:
Subsequent authorities have established that, for a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reason, “extreme” illogicality or irrationality must be shown “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions and against the framework of the inquiry being as to whether or not there has been jurisdictional error on the part of the Tribunal” (see Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; 212 FCR 99 (SZRKT) at [148] per Robertson J; SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58; 202 FCR 1 (SZOOR) at [84] per McKerracher J (with whom Reeves J agreed); and Minister for Immigration and Border Protection v SZUXN [2016] FCA 516 at [52] per Wigney J). Illogicality or irrationality in that extreme sense may be considered not only in relation to the end result, but also extends to fact finding which leads to the end result, albeit that, as Robertson J emphasised in SZRKT at [151], the overarching question is whether the decision was affected by jurisdictional error (see also the observations of Beech-Jones J in BKE v Office of Children’s Guardian [2015] NSWSC 523 at [113] and the cases referred to therein).
In Gill, Griffiths and Moshinsky JJ at [59]-[64] summarised the relevant principles relating to judicial review of the Tribunal’s fact finding, including those principles articulated in SZMDS and ARG15.
In Masi-Haini, the Full Court considered when an administrative decision will be unreasonable due to illogicality or irrationality in fact finding. The Court considered relevant authorities, including Djokovicv Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3 (Djokovic), and said at [49]-[52]:
49In Djokovic, the Court was concerned with explaining the kinds of circumstances in which a decision or a state of satisfaction will be held to be “legally unreasonable because of illogicality or irrationality”. In that case, as here, the complaints of illogicality or irrationality were directed to “identifiable errors”, including a lack of evidence on which to found central conclusions and “illogical or irrational reasoning” (at [31]). The specific complaints were rejected, but the general statements by the Court are carefully considered and, in our view, are to be given great weight. They were not said to be wrong.
50Referring to a number of earlier cases, the Court observed at [33] that “the characterisation of a decision (or a state of satisfaction) as legally unreasonable because of illogicality or irrationality is not easily made”. At [35], the Court framed the ultimate question as:
… whether the satisfaction of the relevant state of affairs or matter was irrational, illogical or not based on findings or inferences supported by logical grounds, such that it cannot be said to be possible for the conclusion to be made or the satisfaction reached logically or rationally on the available material. It will then satisfy the characterisation of unjust, arbitrary or capricious.
(Citations omitted and emphasis added.)
51The phrase “irrational, illogical or not based on findings or inferences supported by logical grounds” can be traced back to Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 78 ALJR 992 at [38] (Gummow and Hayne JJ), which the Court cited. The framing of the ultimate issue in terms of whether the state of satisfaction could have been reached logically echoes the reasoning of Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130]-[131], [135], which this Court in SZOOR v Minister for Immigration and Citizenship (2012) 202 FCR 1 regarded as constituting the majority reasoning in that case.
52If a decision or state of satisfaction is not infected by illogicality or irrationality in the sense discussed in Djokovic (so as to be, as the Court put it, “unjust, arbitrary or capricious”), no relevant error is made out and questions of materiality, in the MZAPC [v Minister for Immigration and Border Protection (2021) 273 CLR 506 (MZAPC)] sense, do not arise. On the other hand, if the decision or state of satisfaction is found to be so infected, a conclusion of materiality is implicit in that conclusion and no further threshold needs to be met: MZAPC at [33] (Kiefel CJ, Gageler, Keane and Gleeson JJ). The MZAPC line of authority is thus irrelevant.
GROUND 1
The applicant’s submissions
By ground 1 the applicant asserted that the Authority erred by its finding that it was not satisfied the applicant was a visible supporter of the BNP on the basis that this finding was not open to it and, or alternatively, it was unreasonable.
The applicant relied on [11] of the Authority’s decision with particular attention to those parts emphasised below:
Nevertheless after consideration of the applicant’s responses at the SHEV interview I accept that he had some interest in the BNP and attended a number of BNP gatherings or rallies but was otherwise not an active BNP supporter in his village. I accept that in 2004 his father helped him to establish a grocery/tea shop in the market place. I also accept that his shop may have been frequented by BNP members who piqued his interest in the BNP through their informal discussions and they invited him to their meetings which he indicated at the SHEV interview were held in the marketplace hall. Although the applicant claimed that his family were known supporters of the BNP, the applicant’s responses at the SHEV interview and in his visa application indicated that his interest in the BNP was prompted by the local BNP members frequenting his shop and the discussions he heard while they were there, and did not indicate that he held any strong personal political affiliation with the BNP ideology or any interest in politics other than the potential loss of trade arising from the AL coming to power. I am satisfied that the applicant apart from attending a few gatherings or rallies at the invitation of his customers during the time the BNP was in power (until October 2006), was not an active or visible supporter of BNP.
The applicant submitted that whether he was ideologically committed to the BNP was not determinative or of great importance in the Authority’s consideration of whether the applicant was a visible supporter. Rather, it was whether the applicant was perceived or seen by the persecutors as a supporter of the BNP that was important. The applicant submitted that he comprehensively detailed his connection to the BNP in his visa application and the Authority accepted significant aspects of his evidence.
The applicant submitted that the Authority did not properly consider the applicant’s evidence or consider the difference between what is meant by someone being an active supporter and a visible supporter, and that no rational or logical decision-maker could have found that the applicant was not a visible BNP supporter on the same evidence.
The applicant submitted that the Authority’s finding that he was not a visible supporter of the BNP was a central finding that led to the Authority’s rejection of his claim for protection. In his oral submissions, Counsel for the applicant submitted that, taking into account certain findings made by the Authority and evidence before the Authority that the Authority did not reject, the only finding open to the Authority was that the applicant was a ‘visible’ supporter of the BNP. The findings and evidence referred to by Counsel for the applicant include:
(a)the Authority accepted that the applicant had some interest in the BNP and attended a number of BNP gatherings or rallies, without otherwise being an active supporter in his village: Authority’s reasons at [11];
(b)the Authority accepted that the applicant’s father helped him to establish a grocery tea shop in the marketplace which may have been frequented by BNP members who piqued his interest in the BNP through informal discussions and invited him to meetings: Authority’s reasons at [11];
(c)the applicant stated in his protection visa application that ‘I and my family are supporters of the Bangladeshi National Party and residents in my village are well aware of this. I actively attended BNP meetings and participated in their rallies. In 2004 my father gave me money to start my own business. I rented a shop and prepared and sold tea. My friends and BNP members attended my shop and often hanged around there, my business was flourishing. Awami Leage (AL) party members always watched me and the people at my shop. AL disliked BNP members holding meetings/gatherings at my shop and stayed away from my shop. From BNP meetings and conversations at my shop, I had first hand information/knowledge of all BNP discussions’;
(d)the applicant in his statutory declaration made on 9 June 2016 referred to the opening of his shop and continued, ‘Since then the Awami League activists knew me as a BNP supporter. It was from that time I started spending time with the BNP activists as Awami League activists hardly used to visit my shop … Due to BNP activists visiting my shop, my business was doing well. I really liked the BNP activists and my life became involved with BNP. This is why I wasn’t considered well by the activists of other political parties and I couldn’t also mix with them’; and
(e)in his protection visa interview, the applicant gave evidence that he was an ‘ordinary member’ of the BNP who ‘like[d] the party’ and used to attend their meetings on a weekly, fortnightly or monthly basis in Bangladesh and who attends meetings on a regular basis in Australia.
The Minister’s submissions
The Minister highlighted that the applicant and the Minister interpreted the Authority’s reasons differently and submitted that the Authority’s finding at [11] was that the applicant was not an ‘active or visible supporter’, which indicates that the distinctions the applicant attempts to draw between ideological commitment to the party and perception of support and between active support and visible support are distinctions without meaning. The Minister submitted that on any rational view of its findings, the Authority did not accept that the applicant was perceived or seen by the persecutors as a supporter of BNP in a manner that exposed him to harm. This finding was based on propositions from the applicant’s own evidence, including his failure to declare any political involvement by himself or his family in his entry interview, his later evidence that did not indicate he held any strong personal political affiliation with the BNP ideology or any interest in politics and the fact that the applicant claimed to have departed Bangladesh three months prior to the 2008 elections, and the Minister submitted that there was a rational or logical relationship between these propositions and the depth of the applicant’s involvement with the BNP. The Minister submitted that each of the propositions of findings was open to the Authority.
While Counsel for the Minister accepted that there might be some intellectual distinction between the words ‘active’ and ‘visible’, in the context of this particular decision there is no real difference in meaning, and the Authority found that nobody perceived the applicant to be of interest. Counsel for the Minister submitted that, contrary to the applicant’s submissions, the Authority rejected the applicant’s evidence that he was involved with the BNP and that everyone knew him and that the AL knew he was an activist. The Authority’s finding that the applicant provided only minor support to the BNP is a finding of greater generality that can be seen as a rejection of some of the more specific evidence before the Authority.
The Minister further submitted that the conclusion that the applicant was not an active or visible supporter of the BNP plainly could have been reached logically on the available materials and therefore any assertion of illogicality in this aspect of the Authority’s reasons cannot rise to the level of jurisdictional error. In referring to the cases cited above, Counsel for the Minister drew a distinction between, on the one hand, analysing the reasoning of the decision-maker and identifying an error in that reasoning about a critical matter and, on the other hand, the more traditional conception of unreasonableness that focuses on the evidence, rather than the reasoning, and in which a decision will only be unreasonable if it was not open on the evidence. The Minister submitted, relying in particular on Masi-Haini, that the latter approach is the correct one. Counsel for the Minister submitted that, even if the Court were to find some error in the reasoning of the Authority, the Authority’s conclusion was still open to it on the evidence before it because of the issues the Authority identified with the applicant’s credibility.
Resolution
I do not accept the applicant’s submission that the only finding open to the Authority on the evidence before it was that the applicant was a visible supporter of the BNP and I consider ground 1 to be based on an inaccurate interpretation of the Authority’s reasons.
First, the finding impugned by the applicant is qualified. The Authority found that ‘the applicant apart from attending a few gatherings or rallies at the invitation of his customers during the time the BNP was in power … was not an active or visible supporter of BNP’ (emphasis added). Therefore, to the extent that the applicant relies on the Authority’s acceptance that he attended some BNP gatherings or rallies in asserting that it was illogical or irrational for the Authority to find that he was not a ‘visible’ supporter of the BNP, the ground cannot succeed because of the qualification in the way in which the finding is expressed.
Second, the Authority’s reasons need to be read as a whole and not by cherry-picking certain phrases and findings. When the Authority’s findings are read as a whole, it is clear that the Authority had significant credibility concerns about the applicant’s claimed BNP involvement and profile. The Authority’s findings at [11] represent those parts of the applicant’s claims that the Authority accepted, notwithstanding its credibility concerns about other aspects of the applicant’s claims.
The Authority summarised the applicant’s evidence about aspects of his claimed political affiliation with the BNP at [7]-[9] of its reasons. The Authority then expressed some of its credibility concerns about the evidence generally at [10], where it said:
There are significant discrepancies between the entry interview during which the applicant did not declare any political involvement by either himself or his family and the other statements including during the SHEV interview. The applicant’s explanation for failing to mention any political involvement not only of himself but also of his family members’ raises concerns particularly given the applicant was aware that the entry interview was an opportunity to provide information about his circumstances and he undertook to provide open and honest responses to the questions. I also consider it significant that the applicant only declared his political involvement and the harm arising from this involvement as the reason for leaving Bangladesh after his initial explanations given at the entry interview were not accepted by the Department. The delay in putting forward these claims which were vital to his case for protection raises further significant concerns regarding their credibility of which various aspects are addressed below.
After making the findings at [11] indicating the parts of the applicant’s evidence that it accepted, the Authority continued to identify concerns it had with the applicant’s claimed involvement with the BNP and claimed past harm from AL supporters. In this regard, the Authority:
(a)considered the applicant’s evidence that he attended a rally in the lead up to the 2008 elections and, taking into account country information and the time the applicant left Bangladesh, considered it implausible that public BNP or AL rallies were held in early 2008 or that the applicant attended any such rally;
(b)expressed concerns about significant differences in the applicant’s evidence over time in relation to his claimed level of involvement in a violent rally and subsequent claims based on the death of an AL member at the rally;
(c)expressed concerns about inconsistent evidence of the applicant about his claimed level of involvement in the BNP and rejected a claim made by the applicant to be a local leader who organised a rally which became violent or that it was because of that leadership that he was accused of being responsible for the death of an AL member and targeted, finding instead that it was implausible that the applicant would have been blamed for the death of the AL member in circumstances where the Authority did not accept that the applicant ‘had any BNP profile other than attending a rally’;
(d)noted significant inconsistencies in the applicant’s evidence over time about the events after the claimed attack on him in the marketplace; and
(e)found that the applicant’s account of his family’s BNP involvement had changed over time and, while it accepted that the applicant’s brothers may have been supporters of the BNP, found there was no evidence before it that the applicant’s brothers had any BNP involvement or activism.
The Authority then summarised its findings about the applicant’s BNP involvement at [14] of its reasons, where it said:
After consideration of the applicant’s account I accept that he was a BNP supporter who attended an occasional rally or meeting during the period the BNP were in power. However given the significant inconsistencies in other aspects of the applicant’s evidence particularly in the timing of the rally which is inconsistent with country information before me, the varying accounts of aspects of his claims and the implausibility of some key aspect of his narrative, I am not satisfied with the overall credibility of his claim of his BNP involvement, his role in the BNP rally, his claim to have been physically attacked by AL due to his alleged responsibility for the death of an AL member or to have gone into hiding afterwards. Given my concerns with the applicant’s credibility, and my findings regarding his minor party involvement and lack of profile I am not satisfied that the applicant was attacked by the AL members in 2008 and he subsequently went into hiding, that the AL members were looking for him in order to kill him or that his family members were visited and harmed by AL members prior to his departure from Bangladesh in 2012.
Considering the reasons of the Authority as a whole, I accept the Minister’s submission that on a proper reading of the Authority’s findings, the Authority did not accept that the applicant was perceived or seen by persecutors as a supporter of the BNP in a manner that exposed him to harm.
The Authority’s finding that the applicant, apart from attending a few gatherings or rallies, was not an active or visible supporter of the BNP, which, in turn, informed its finding at [13] that the applicant did not have ‘any BNP profile other than attending a rally’, was open to it on the evidence before the Authority. I do not accept that the Authority failed to consider whether the applicant was a ‘visible’ supporter of the BNP, distinct from his ideological commitment to the party. Further, I do not accept that the evidence before the Authority as a whole, or the specific findings made by the Authority and relied on by the applicant in advancing this ground, could logically lead only to the conclusion that the applicant was a ‘visible’ BNP supporter.
Given this finding based on my interpretation of the Authority’s reasons, it is unnecessary to address the Minister’s submission based on the proper interpretation of the case law relating to illogicality and irrationality.
Ground 1 is not established.
GROUND 2
The applicant’s submissions
By ground 2, the applicant asserted that the Authority erred in finding that the applicant would not engage in any BNP activities if returned to Bangladesh on the basis that this finding was not open to it and/or it was unreasonable for it to make this finding.
The relevant finding was made at [19] of the Authority’s reasons, where the Authority said (emphasis added):
I accept that although the applicant was not a BNP member he is sympathetic to the BNP and may continue to support the BNP on return to Bangladesh. There is a low likelihood of supporters or party members being harmed whilst involved in political protests or strikes. Although the applicant has attended BNP meetings at his local library in Australia he has not indicated that he would engage in any BNP activities on his return to Bangladesh and on the evidence before the delegate, his family are not actively involved in politics although they may support the BNP. Given this and his minor political involvement prior to his departure, I am not satisfied that the applicant would be politically active on return to Bangladesh, or that his involvement would extend beyond merely supporting the party. I am not satisfied he has a well-founded fear of any harm as a result of any past or future BNP support or due to his family’s BNP support. I am not satisfied that the applicant faces a real chance of persecution by the AL or anyone else on return.
The applicant submitted that the Authority accepted various aspects of his involvement in the BNP and did not express any issue with his evidence that he had been attending BNP meetings on a regular basis in Australia.
The applicant submitted that even if the Authority found he was not ideologically committed to the BNP, his support for the party, the harm he experienced due to this support, his continued support for the party while in Australia and the potential benefits that his BNP involvement will give him if he returns to Bangladesh do not support the finding made by the Authority that the applicant will not engage in any BNP activities on return to Bangladesh. The applicant submitted that the Authority made this adverse finding without considering the applicant’s evidence properly or only looking at the evidence illogically or irrationally.
In oral submissions, Counsel for the applicant submitted that a finding about whether the applicant would be politically active on his return to Bangladesh is based on three considerations: (1) the previous history of the applicant’s involvement in Bangladesh; (2) any history of the applicant’s involvement in Australia; and (3) any factors that would motivate the applicant to engage in such activities in the future. Counsel for the applicant submitted that the applicant’s history of involvement in the BNP in Australia was critical because there is no need for the applicant to get involved in BNP activities in Australia, and it shows a level of commitment that should have been taken into account when considering his intention to be politically involved upon return to Bangladesh. Counsel for the applicant submitted that the question for the Authority was not whether the applicant indicated he would engage in BNP activities upon his return, but rather whether he was likely to engage in these activities. The applicant had been attending BNP meetings on a regular basis at the local library in Australia and the applicant would be motivated to become involved in BNP activities upon his return because his family supported the BNP and he would derive benefits from his past and future BNP activities, he had developed a commitment to the BNP in Bangladesh and in Australia and the people with whom he associated in Bangladesh were BNP people.
The Minister’s submissions
The Minister submitted that it was important to pay attention to the precise finding made by the Authority, which was not that the applicant would not engage in BNP activities on his return to Bangladesh, as asserted by the applicant, but rather that the Authority was not satisfied that the applicant ‘would be politically active on return to Bangladesh, or that his involvement would extend beyond merely supporting the party’. The Minister submitted that this was a significant difference.
The Minister further submitted that the Authority’s finding that the applicant’s political activity on his return would not extend beyond mere support for the BNP rested on two key propositions, namely, the lack of any evidence that the applicant would engage in BNP activities upon his return and the absence of the applicant’s family’s active involvement in politics. The Minister submitted that once it is accepted that the Authority was distinguishing between active involvement in politics and mere membership or support for a political party, it becomes clear that there was ample material before the Authority to support its findings about the applicant. The Minister submitted that the Authority’s distinction as to political involvement reflected the applicant’s own evidence to the delegate, which was that he was merely an ordinary member of the BNP and not a high level member and he did not have much involvement with the party. The Minister submitted that it was logically open for the Authority to find that the applicant’s engagement with the BNP upon his return would not rise above the level of mere support, noting the lack of any claim from the applicant that he would increase his involvement in the party, the absence of any evidence as to the potential benefits his BNP involvement will give him if he returns to Bangladesh and the lack of any evidence supporting a familial involvement with the BNP.
Resolution
The applicant has not established that the Authority’s finding at [19] that it was not satisfied the applicant ‘would be politically active on return to Bangladesh, or that his involvement would extend beyond merely supporting the party’ is a finding that no rational or logical decision-maker could make on the evidence before the Authority.
It was open to the Authority to take into account its findings in relation to the applicant’s past involvement with the BNP in considering his possible future involvement. For reasons explained elsewhere in this judgment, the Authority’s findings about the applicant’s past minor involvement, namely that he supported the party and attended a few gatherings or rallies, were open to it on the evidence before it. It was also open to the Authority to take into account that the applicant did not give any evidence that he would engage in BNP activities on his return to Bangladesh and that his family were not actively involved in politics. Taking into account these matters, the Authority was not satisfied that the applicant would be politically active on return to Bangladesh, beyond merely supporting the party, notwithstanding that he attended some BNP meetings in Australia.
While there may have been room for a rational and logical decision-maker to reach a different conclusion to the Authority about the applicant’s possible future political involvement in Bangladesh, it cannot be said that the finding reached by the Authority was not one open to a logical or rational decision-maker on the material before the Authority. This is not a case where the only conclusion open to a logical and rational decision-maker is that the applicant would be actively involved in politics with the BNP upon his return to Bangladesh.
Before leaving this ground, I address two further aspects of the applicant’s written submissions. First, the applicant made a submission that the serious harm the applicant experienced because of his support for the BNP would have brought him closer to the BNP and did not support the finding that he would not engage in BNP activities upon his return to Bangladesh. This cannot be the basis for any finding of irrationality or illogicality on the part of the Authority because the Authority rejected the evidence that the applicant had, in the past, experienced serious harm as claimed. Second, the applicant referred to motivational reasons for him to engage in BNP activities upon his return to Bangladesh, including the potential benefits his BNP involvement will give him. The applicant has not pointed to any evidence of this that was before the Authority and the submission appears to be speculative. This speculative argument which does not appear to have been raised before the Authority does not establish that the Authority’s finding that the applicant would not be politically active upon return to Bangladesh was illogical or irrational.
Ground 2 is not established.
GROUND 3
The applicant’s submissions
By ground 3, the applicant challenged as unreasonable the Authority’s finding that it was implausible that public BNP or AL rallies were held in early 2008 as the applicant claimed. This finding was made at [12] of the Authority’s reasons, where the Authority said (footnote omitted):
The applicant claims in both his visa application and at the SHEV interview that in 2008 during the time of the caretaker government he attended a rally in the lead up to the 2008 elections, which turned violent and resulted in an AL member being killed by a shot fired by one of the AL members. Country information indicates during this period there was a declared state of emergency that had commenced in January 2007 under the caretaker government during which certain fundamental rights were suspended, large numbers of politicians and others were detained on suspicion of involvement in corruption and other crimes, leaders of both the AL and BNP were arrested and not released until just prior to the national elections in late 2008, which were reported to be free, fair and transparent and held in a peaceful atmosphere, with high voter turnout. Given the state of emergency suspended certain fundamental rights and was enforced until mid-December 2008 when it was terminated just prior to the elections, and the peaceful lead up to the elections, I consider it implausible that public BNP or AL rallies were held in early 2008 as claimed or that the applicant attended any such rally. I also note that despite the applicant’s claim to support BNP and to have attended campaign rallies he departed Bangladesh approximately three months prior to the general elections in December 2008, which were reported to have record voter turnouts and to be very peaceful. This raises further concerns regarding his claimed involvement and commitment to the BNP.
The applicant submitted that the Authority’s finding that, taking into account country information, it was implausible that BNP or AL rallies were held in 2008 as claimed was made without taking into account country information to the effect that ‘Municipal elections were held in 13 city corporations and municipalities on August 4, 2008’. The applicant submitted that his evidence was that he took part in the rally sometime in 2008 but could not remember the exact date, and that he departed Bangladesh approximately three months before the December 2008 elections. In these circumstances, and where country information indicated that there were elections in August 2008, the applicant submitted to the Court that it is very likely that election rallies would have been held in the lead up to the August 2008 elections when the applicant was still in Bangladesh. The applicant submitted that any rational decision-maker considering the applicant’s evidence and the country information could not have found it implausible that public BNP rallies were held in early 2008.
In his oral submissions, Counsel for the applicant took the Court to the evidence in the UK Home Office report that is relevant to the resolution of this ground. The UK Home Office report cited a United States State Department (USSD) Background note, which contained, amongst other information, the following three sentences:
[In January 2007]… Under emergency provisions, the government suspended certain fundamental rights guaranteed by the constitution and detained a large number of politicians and others on suspicion of involvement in corruption and other crimes.
…
Municipal elections were held in 13 city corporations and municipalities on August 4, 2008.
…
It was announced on 17 December 2008 that the President had signed an order terminating the state of emergency completely.
Counsel for the applicant submitted that the only logical inference is that the Authority was not aware of, or had missed, the information about the municipal elections held in August 2008. Counsel for the applicant submitted that any election would have involved a period of campaign for parties and the country information does not say what fundamental rights were suspended and, in particular, it does not say whether that extended to rallies and political gatherings. The applicant submitted that the Authority could not have made its implausibility finding if it had taken into account the information in the report about the municipal elections.
The Minister’s submissions
The Minister submitted that the Authority’s reasons for doubting the applicant’s claim were drawn from country information which was summarised in its decision record. The applicant’s claims were inconsistent with the country information before the Authority which indicated that certain fundamental rights were suspended pursuant to the state of emergency that was in force in the lead up to the 2008 general election. It was permissible for the Authority to engage in this reasoning and give weight to the country information. In relation to the particulars in the application, the Minister submitted that the applicant’s reference to the country information about the municipal elections goes no further than establishing that the 2008 general election occurred, which is a matter that is not in dispute. The Minister submitted that the applicant’s assertion that it is very likely that election rallies would have been held before the election is no more than speculation, entirely unsupported by evidence, and must be rejected. The Authority did not need rebutting evidence before dismissing the applicant’s claims.
In oral submissions, Counsel for the Minister submitted that the material before the Authority made clear that freedom of assembly and freedom of association were amongst the fundamental rights that were suspended and in particular referred to a page of the UK Home Office report, which cited the 2009 USSD report as saying ‘The Constitution provides for freedom of assembly and association, and the government generally respected these rights in practice. The lifting of the state of emergency in December 2008 restored these rights to citizens’.
Counsel for the Minister submitted that the reference in the material to municipal elections appears to be irrelevant because it was a general election held in December when the restrictions on freedoms were lifted. Counsel for the Minister submitted that the Authority’s view that the applicant’s claim was implausible in the light of the country information was correct and a reference to municipal elections could not change that because the critical aspect was a suspension of fundamental human rights until the general election in December 2008.
Resolution
I accept the Minister’s submissions in relation to this ground.
On the country information before it, it was open to the Authority to find it implausible that any BNP or AL rallies were held in early 2008 at a time when fundamental rights were suspended during a declared state of emergency. I accept that it was open to the Authority to have regard to, and place weight on, the country information and to reject claims made by the applicant that were inconsistent with that country information.
I do not consider that the information about the municipal elections held in August 2008, identified in the applicant’s submissions, was something that needed to be expressly referred to by the Authority or which indicates that the Authority’s finding was irrational or illogical. The applicant’s submission that there would have been election rallies in the lead up to the August 2008 municipal elections is speculative and inconsistent with the country information to the effect that certain fundamental rights were suspended during that time.
Given that the evidence before the Authority indicated that the state of emergency continued throughout 2008 until just before the December 2008 elections, by which time the applicant was out of the country, it was open to the Authority to find that it was implausible that the applicant had attended a violent rally as he had claimed.
Ground 3 is not established.
CONCLUSION
The applicant has not established that the Authority decision is affected by jurisdictional error. It follows that the judicial review application must be dismissed.
I certify that the preceding sixty-eight (68) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 6 June 2024
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