FEDERAL COURT OF AUSTRALIA

DCW16 v Minister for Immigration and Border Protection [2017] FCA 1442

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant pay the first respondent’s cost of the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

RANGIAH J:

1    This is an appeal from a judgment of the Federal Circuit Court of Australia delivered on 8 June 2017. The Federal Circuit Court dismissed the appellant’s application for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) dated 6 October 2016. The Tribunal affirmed a decision of a delegate of the first respondent dated 10 October 2014 to refuse the appellant the grant of a Protection (Class XA) visa.

2    The appellant is a citizen of Bangladesh. On 16 July 2013, he applied for a protection visa. On 10 October 2014, the delegate refused the application. The appellant then applied to the Tribunal for review of the delegate’s decision. On 6 October 2016, the Tribunal affirmed the delegate’s decision not to grant the appellant a protection visa.

3    The appellant claims to fear harm if he returns to Bangladesh based on his political opinion, which is:

(1)    in favour of Jamaat-e-Islami (JI);

(2)    imputed to be pro-Bangladesh Nationalist Party (BNP); and

(3)    opposed to the ruling Awami League party.

4    The appellant claims to fear harm from Awami League activists, or thugs acting on behalf of the Awami League. The appellant claims to have been involved in JI, initially through the Islami Chhatra Shibir (ICS), the student wing of JI. He also claims to have supported JI’s coalition partner, the BNP. The appellant claims to have attended local meetings, participated in processions, distributed letters and called on persons during elections to encourage them to vote for JI.

5    The Tribunal was sceptical as to the extent of the appellant’s political engagement, given his uncertainty over his status as a voter. Due to the paucity of the appellant’s evidence supporting his claim of political engagement while in Bangladesh, the Tribunal asked the appellant about his support for JI while in Australia. The appellant said he had not been in contact with any members of JI while in Australia, explaining that he had not done so because it could reignite memories of his past in Bangladesh and induce more anxiety. The Tribunal was sceptical about the appellant’s explanation. The Tribunal found that the appellant was at most a low level supporter of JI, and did not accept that he was engaged in organising and assisting with processions, rallies or meetings. The Tribunal did not accept that the Awami League or anyone else perceived him as being a committed JI supporter or activist.

6    The appellant claimed to have been attacked with sticks and knives in 2010, allegedly by Awami League activists. The Tribunal expressed concern over the appellant’s credibility when assessing that claim. The appellant said he did not know the identity of the attackers, but he thought they were Awami League activists because such activists knew he was “doing JI politics”. The appellant claimed to have been in hiding for two years after that attack. The Tribunal had concerns about the appellant’s claims and found that it was possible, although far from certain, that the appellant was drawing on an incident in the past where he had been attacked, but did not accept that Awami League activists attacked him because of his support for JI or any other political reasons.

7    The Tribunal said that it was difficult to imagine that the appellant attracted the adverse attention of the Awami League, any more than his family members who continued to live in the village. The Tribunal did not accept the appellant’s claims that Awami League activists threatened him in late 2011 or early 2012, or that he had been arrested by police, or that any brief detention by police involved more than answering a few questions. The Tribunal did not accept the appellant’s claims that persons had mistreated or threatened his family since the appellant left Bangladesh in early 2013. Ultimately, the Tribunal decided that the appellant did not have a well-founded fear of persecution for a Convention reason, now or in the future. The Tribunal was also not satisfied that the appellant met the complementary protection criterion.

8    Before the Federal Circuit Court, the appellant relied upon three grounds of review, alleging that the Tribunal erred by:

(1)    deciding that the threshold requirement under s 36(2)(a) of the Migration Act 1958 (Cth) had not been met based on a misconstruction of the expression “political opinion” in article 1A of the Refugees Convention;

(2)    making a decision that was manifestly illogical, irrational or unreasonable;

(3)    failing to take into account a relevant consideration by failing to consider specific relevant examples of country information said to show violence against supporters of JI and the BNP.

9    As to the first ground, the appellant argued before the Federal Circuit Court that the Tribunal fell into error by applying too narrow an interpretation of “political opinion”. The appellant argued that he did not claim to be a high-level supporter of JI, and that his claim was based on his lower-level support of JI and his imputed pro-BNP opinion and his opposition to the Awami league.

10    The primary judge observed that to establish an entitlement to a protection visa, the appellant was required to satisfy the Tribunal that he was a refugee within the meaning of s 36(2)(a) of the Act. His Honour found that the Tribunal was not operating under any misapprehension of political opinion in s 5J of the Act. The Tribunal had proceeded on the basis that low-level support or activities could evidence a political opinion, or lead to the imputation of a political opinion. The Tribunal decided that the appellant had a political opinion by reference to his claims of support for JI. It did not reject his claim that he held a political opinion which was in opposition to the Awami league. However, the primary judge held that it does not necessarily follow that there is a real chance that, if the appellant returned to Bangladesh, he would be persecuted for his political opinion simply because the appellant establishes that he holds an opposing political opinion to the ruling Awami League. The Tribunal found, given its rejection of the appellant’s evidence as to the nature and extent of the appellant’s political activities, there was no real chance that the appellant would be persecuted for his political opinion. Accordingly, the primary judge rejected the first ground.

11    As to the second ground, the primary judge found that the appellant had not demonstrated that the Tribunal’s decision was affected by illogicality or irrationality and was not unreasonable. This ground was concerned with the Tribunal’s approach to dealing with the appellant’s lack of involvement with JI while he was in Australia. The appellant relied on S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473, where McHugh and Kirby JJ said at [40], amongst other things, that persecution does not cease to be persecution for the purpose of the Convention because those persecuted can eliminate the harm by taking avoiding action. The primary judge found that the interest the Tribunal had in the question of whether the appellant continued his interest in JI and what was happening in Bangladesh while he was in Australia was in order to make some assessment about the authenticity of the appellant’s claims. His Honour found that this was permissible and that no illogicality or irrationality had been demonstrated.

12    As to the third ground, the primary judge noted that an examination of the Tribunal’s reasons revealed that it did not do either of the things asserted by the appellant, namely, failing to take into account Department of Foreign Affairs trade information assessments, or failing to consider specific relevant examples of the Awami league’s propensity for violence of JI and the BNP and the culture of impunity in Bangladesh. His Honour found that the Tribunal did consider the information referred to in the appellant’s argument before the Federal Circuit Court. The Tribunal had expressly summarised the country information about which the appellant claimed the Tribunal failed to take into account at paragraphs 48 and 49 of its reasons. The primary judge found that no jurisdictional error was established and dismissed the application.

13    Before this Court, the following grounds of appeal are set out in the notice of appeal:

1.     Hon Judge Jarrett of the Federal Circuit Court failed to hold that the Tribunal committed a jurisdictional error when it failed to apply the correct test of persecution in relation to the Complementary Protection Visa Provision contained in section 36(2) (aa) of the Migration Act 1958. The AAT failed to separate the claim to be refugee and fear of harm test for the provision of the Complementary Protection.

2.    Hon Judge failed to hold that the Tribunal made an error of law when it did not take up and separately deal with the factual issues. The Tribunal failed to understand how the Jamaat-e-Islami supporter persecuted by Awami League supporter and police. I was denied procedural fairness when the Tribunal made opinion based on assumption and possibilities. The Tribunal failed to assess the current situation in Bangladesh. Where thousands of Jamaat-e-lslami workers are arrested recently and harassed by the Awami League Government Authority. In assessing danger to me the Tribunal undermined the danger I will face if I compelled to return Bangladesh as a returned Asylum seeker.

14    The first ground was not argued before the primary judge. The appellant requires leave to rely on that ground, but leave should not be granted because the ground lacks merit. The appellant has failed to identify any error in the test of persecution applied in relation to s 36(2)(aa) of the Act. Further, the Tribunal did separately consider the appellant’s claim to be a refugee and his claim for complementary protection. It noted that the appellant had not specifically advanced any claims relating to complementary protection, but had alluded generally to the general security environment in Bangladesh, political instability and poor economic and social conditions. The Tribunal considered the application of s 36(2B) of the Act and found that there was no real risk that the appellant will suffer significant harm in Bangladesh as a result of such factors. The appellant has not demonstrated any error by the Tribunal in its consideration of the complementary protection provision.

15    The second ground of appeal raises several separate matters. A number of these matters were not raised before the Federal Circuit Court.

16    First, it is asserted that the primary judge failed to hold that the Tribunal made an error of law when it did not take up and separately deal with the factual issues. However, the appellant has not identified the factual matters that the Tribunal failed to deal with.

17    Second, the appellant asserts that the Tribunal failed to understand how JI’s supporters are persecuted by Awami League supporters and the police. However, the Tribunal’s reasons demonstrate that it specifically considered country information concerning the arrests and targeting of JI supporters in Bangladesh.

18    Third, the appellant asserts that he was denied procedural fairness when the Tribunal expressed opinions based on assumptions and possibilities. These assumptions and possibilities are not identified. I cannot discern any error in the Tribunal’s assessment that there is no real chance that the appellant will face serious harm in Bangladesh for any Convention reason.

19    Fourth, the notice of appeal asserts that the Tribunal failed to assess the current situation in Bangladesh, where thousands of JI workers had been arrested and harassed by the Awami League’s authority. However, the Tribunal did take into account country information indicating that JI workers had been arrested at paragraphs 48 and 49 of its reasons.

20    Fifth, the notice of appeal asserts that in assessing the danger to the appellant, the Tribunal “undermined” the danger he would face if compelled to return to Bangladesh as a returned asylum-seeker. The assertion seems to be that the Tribunal underestimated the danger. It is not apparent that the appellant raised any specific argument that he would be persecuted because of his status as a returned asylum seeker, though he did submit that he faced harm as a result of Bangladesh’s general security environment, political instability, and poor economic and social conditions if he returns to Bangladesh. The Tribunal did take that matter into account, and there is no apparent error in the Tribunal’s assessment that the risk is one faced by the population generally rather than specifically by the appellant.

21    Accordingly, none of the grounds set out in the notice of appeal have been made out.

22    The appellant filed two sets of written submissions in support of his appeal containing different grounds to those set out in the notice of appeal. The first set of submissions headed “Applicant Submission” is difficult to understand, but in substance appears to assert firstly that a “sliding scale” should be applied to the question of whether a decision of a Tribunal is irrational or unreasonable such that the question is whether the decision in whole or part is merely unreasonable, having regard to the fundamental rights or humanitarian protection at stake. This does not represent the law in Australia: see Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [129]-[130]. Even if it did, I cannot see that any aspect of the Tribunal’s decision is in any way irrational or unreasonable, even having regard to the subject matter of the decision.

23    Second, the appellant repeats his claims that were made before the Tribunal. To the extent that this raises an argument that the Tribunal should have reached a different conclusion, the argument cannot succeed. The argument does not demonstrate any jurisdictional error on the part of the Tribunal.

24    Third, the appellant alleges that the Tribunal failed to make a telephone call to certify the authenticity of a document. When asked what phone call the Tribunal should have made, the appellant’s response was that the Tribunal should have made inquiries of the JI people in Bangladesh who could have verified his involvement with JI. The Tribunal was under no obligation to make the inquiries that the appellant asserts it should have made, particularly in circumstances where the appellant does not suggest that he nominated particular persons who should be contacted. There were no obvious inquiries that the Tribunal failed to make: cf Minister for Immigration and Citizenship v SZIAI (2009) 111 ALD 15; [2009] HCA 39.

25    At the hearing, the appellant relied on a further set of written submissions entitled “Appellant’s Written Argument”. Those submissions set out the following grounds:

(1)    The tribunal did not consider my merit review application despite many evidentiary proofs;

(2)    The procedures that were required to be observed under the Migration act 1958 in connection with the making of the decision were not observed.

(3)    The tribunal ignored the merits of my claims. It did not take into consideration the reasonable ground of my refugee visa application only because of credibility concern. The tribunal did not have any initiative to investigate the documentary evidences with the independent authority. The decision was identical in the eye of law and did not observe my circummundane properly.

(4)    The tribunal did not act in good faith in regard to my claims.

(5)    The tribunal misjudged fate of my claims.

(6)    The tribunal made a number of errors to decide the fate of my claim.

(7)    The tribunal's ignoring of relevant evidences and its finding in the face of contradicting which indicates actual bias constitute jurisdictional error being a breach of procedural fairness which is an essential condition of the exercise of the decision making power and attracts s.39B Judiciary Act 1903 as per Gaudron J in Abebe V Commonwealth (1999) 162 ALR 1 at 33 paragraph [113] Thus, subject to the operation of discretionary factors, breach of those rules is a jurisdictional error which will ground prerogative relief.

(8)    I came to Australia by boat with full of my life risk. The document I provided to established me as a refugee to support my claims that is true. I came from third world country there are full of irregularity. I am a political victim. My life be will full of risk if I forced to return to Bangladesh.

(9)    The tribunal's decision was affected by actual bias constituting judicial error and the denial of natural justice.

(10)    In the AAT decision, the tribunal did not maintain procedural fairness.

(11)    Finally, I mentioned before your Honour to the Federal Circuit Court, the honorable judge of the Federal Circuit Court did not consider and also did not find error of law under the Migration Act 1958.

(Errors in original.)

26    The grounds numbered 1, 3, 5, 6, 7 appear to go to the merits of the appellant’s claims before the Tribunal. They do not assert any jurisdictional error. The second ground is entirely unparticularised. It is not apparent that there were any procedures that the Tribunal was required to observe that were not observed. There is no basis for the appellant’s claims in grounds 4, 7, 9 and 10 of failure of the Tribunal to act in good faith, actual bias and denial of procedural fairness.

27    I am not satisfied that the appellant has demonstrated any error on the part of the Federal Circuit Court. Accordingly the appeal will be dismissed with cost.

Associate:    

Dated:    4 December 2017