FEDERAL COURT OF AUSTRALIA

AMD16 v Minister for Immigration and Border Protection [2018] FCA 302

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed with costs.

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

REASONS FOR JUDGMENT

ALLSOP CJ:

1    This is an appeal from orders made by a judge of the Federal Circuit Court of Australia dismissing an application for judicial review against a decision of the Administrative Appeals Tribunal (the Tribunal) made on 19 February 2016 which affirmed the decision of a delegate of the Minister not to grant the applicant a Protection Visa.

The appellant’s claims

2    The appellant is a citizen of Bangladesh who applied for a Protection Visa on 8 July 2013. The delegate refused the visa on 30 September 2014. The appellant appeared before the Tribunal on 27 January 2016 and gave evidence and presented arguments. The appellant was represented in the review by a migration agent. The summary of claims of the applicant made in the statement attached to his application for a Protection Visa was set out by the Tribunal at [12] to [22] of its reasons for decision as follows:

12. He is a Sunni Muslim, Bangladeshi citizen with no right to reside in any other country.

13. He was born on 10 March 1983 in a small village of about 2000 people, most of whom are farmers. He used to work his family farm but when he moved to Dhaka in 2011 he worked as a construction worker and rickshaw puller.

14. He was a supporter of the BNP and attended meetings every fortnight, sometimes every month. He would sometimes make speeches at meetings and he spoke against the Awami League party. He had no freedom of speech and was in fear of being attacked by Awami League party members.

15. One day in June 2011, around midday, he was fishing when another villager called rattan approached him and said he wasn’t allowed to fish there. They argued and he called the other villagers and “supports” for the BNP who attacked him and ransacked his house. There was no authority he could report to for support.

16. About two weeks later he was farming his land and his next door neighbour, who was an Awami League party member accused him of crossing on to his land. The neighbour tried to stop him from farming and hit him with a shovel. He didn’t challenge him and asked the neighbour to let him go.

17. About 4 or 5 days later he attended a BNP meeting. The next evening when returning home from a tea stall he was attacked by about 10 to 12 Awami League party supporters. They severely injured his back, leg and male organ. He begged them to spare him and promised that he would leave his area for ever and never return. They let him go.

18. It took him about a week to seek medical treatment and to feel better.

19. After that he decided to leave his village. He went to Dhaka and lived in a suburb called Meradi. Eventually he found his way to leave Bangladesh through a people smuggler.

20. He fears returning to Bangladesh because he will be killed by Awami League party supporter s because he supports the BNP. The government cannot protect themselves and therefore cannot protect him. He cannot relocate as he will be identified by the Awami League party and the BNP party.

21. In his entry interview the applicant stated the following:

22. He left Bangladesh because of politics. He was involved with the BNP and voted for them. He attended protest marches against the Awami League party. He was threatened by Awami League supporters and members of another terrorist organization – the communist party. H was involved in a fight about 1 year before leaving Bangladesh and he is lucky to be alive. Awami League supporters tried to kill him.

3    In his submissions to the Tribunal made in January 2016, the applicant further developed the claims as follows (as summarised by the Tribunal in its decision):

24. The applicant possesses a well-founded fear of being seriously harmed if he returns to Bangladesh due to having a political opinion in opposition to the Awami League Party and because he has aided and actively supported the Bangladesh National Party (BNP).

25. The applicant was involved in a visible incident which took place around June 2011 when he was attacked and beaten by a large group of Awami League supporters. He suffered serious injuries to his back, leg and penis. Soon after the attack he had a catheterization procedure at the medical centre in his village. After arriving in Australia he has had ongoing medical problems described as “significant urethral strictures requiring dilation and an overnight stay in hospital” in a letter from Dr David Ende, Urological Surgeon, dated 7 January 2016. Dr Ende further states that [the appellant] will have to learn intermittent self-catheterisation and he (Dr Ende) does not know if this treatment is available in Bangladesh.

26. Further, it is submitted that the applicant’s injury would prevent him from getting married in Bangladesh with the result that he would be seen as homosexual. This in turn would lead to him being persecuted as homosexuality is criminalized in Bangladesh.

27. There is widespread information to corroborate that there is an extreme level of political violence in Bangladesh and that persons with the applicant’s profile are at significant risk of being harmed.

28. The Delegates finding that the applicant was not involved in any political activities in Bangladesh or targeted by supporters or members of the Awami League based on his perceived lack of knowledge of BNP policy is rejected. The applicant has been consistent in his evidence that he has been an active supporter of the BNP for a long time, nearly 15 years. He attended demonstrations and meetings and spoke at those meetings. The applicant’s circumstances and an appreciation of his local context as a rural inhabitant, with a deceased father and no schooling history, is critical to assessing his claims. It is submitted that political affiliation in Bangladesh is not simply driven by an interest in party platforms, but how it relates to core survival, protection from extortion, endemic corruption as well as generational, familial identity. Political affiliation is a critical survival tool in daily life in Bangladesh and membership provides a social network, protection and identity. The applicant’s father and brothers were also BNP supporters. He was able to provide the name of his local opposition BNP leader and the greater party leader, Khaleda Zia.

29. In the context of widespread political violence it is reasonable that anyone who becomes connected to a political party, particularly a party in opposition, will have a well-founded fear of persecution irrespective of whether the individual holds a position of prominence in the party. Not all the people arrested in recent reports will have held prominent positions in the party they support. Indeed they may not even by ‘members’. It is highly likely that many of them will be ordinary, poorly educated individuals who may have done very little in support of their party except follow instructions.

30. Relocation in the current context in Bangladesh is neither practical nor reasonable. The UK Home Office Country Guidance Note, published in November 2014, makes it clear that there is no effective state protection available to someone in the applicant’s position. The political situation and the issues that the applicant currently faces are experienced nation-wide, and he fears that he would continue to be targeted regardless of his place of residence in Bangladesh. Given the applicant’s expression of his support for the BNP has long been an important part of his life in Bangladesh, that he would wish to continue that support in the same or similar manner should he return there and that violent Awami League members operate in all parts of the country with impunity, it is not possible for the applicant to relocate to any other area within Bangladesh.

The Tribunal decision

4    The Tribunal first dealt with the claimed attacks over fishing and the land disputes in [32] and [33]. As to the fishing dispute, the Tribunal found that the applicant does not have a well-founded fear of persecution for a Convention reason arising from the incident.

5    As to the land dispute, the Tribunal was not prepared to accept that the beating occurred. As to the substance of the claim, being the BNP involvement and claimed attacks by Awami League supporters, the Tribunal dealt with this over some pages between [34] and [48] of its reasons.

6    The primary judge dealt with these matters at [7] to [9], which were as follows:

7. The Tribunal considered the applicant’s evidence about his involvement in the BNP, including his claims to have given speeches in front of large audiences at political gatherings. However, the Tribunal considered that the applicant would have demonstrated a greater knowledge of the BNP party and policies, and would have been able to explain the contents of his speeches in greater detail, if his involvement in the party was as claimed. The Tribunal accepted that the applicant followed the BNP “in keeping with family tradition,” but was not otherwise a politically active person.

8. Having found that the applicant was not a publicly identifiable person in the BNP, the Tribunal did not accept that he was beaten by Awami League supporters as claimed. The Tribunal accepted that the applicant had a medical condition, but on the information before it, was unable to verify the cause of the condition. Based on the applicant’s level of political involvement with the BNP, its credibility concerns regarding the applicant’s evidence and the timing of the applicant’s claims in relation to his mother, brother and the Awami League, the Tribunal did not accept that these incidents had occurred. Further, the Tribunal was satisfied that the applicant would not be politically active should he return to Bangladesh. On the basis of independent country information, the Tribunal found that even if the applicant resumed his low level support of the BNP following return to Bangladesh, this would not cause him to be adversely treated by political opponents or the Bangladeshi authorities.

8. The Tribunal considered the applicant’s claim that he would be beaten in Bangladesh if he did not support a political party. However, on the basis of the applicant’s apparent ability to live in Dhaka for approximately 18 months without incident prior to coming to Australia and having concluded that the applicant was not politically involved during this period, the Tribunal found that the applicant would not suffer harm on this basis.

(citations omitted)

7    As to the medical condition and imputed homosexuality, the Tribunal discussed these questions at [49] to [56]. Ultimately, as the primary judge found in [10] of his reasons, the Tribunal accepted that the appellant was suffering from a medical condition but the Tribunal found that there was no country information or other information before it to indicate that someone suffering from the applicant’s condition would be suspected of being homosexual or that the applicant would be harmed or discriminated against on that basis.

8    After its consideration of the appellant’s claims, the Tribunal stated its conclusions at [57], and [60]-[61] of its decision:

57. For all the above reasons, the Tribunal is not satisfied there is a real chance the applicant will suffer serious harm if he returns to Bangladesh now or in the reasonably foreseeable future for reason of any past or future disputes over land and fishing rights, for any past or future BNP involvement, for being denied medical treatment or for being imputed to be homosexual because of his medical condition.

…

60. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugee Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a) of the Act.

61. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a) of the Act, the Tribunal has considered the alternative criterion in s.36(2)(aa) of the Act. For the same reasons already articulated, the Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Bangladesh there is a real risk he will suffer significant harm for the reasons claimed or any other reason. The Tribunal is not satisfied the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.

9    The Tribunal concluded that the appellant did not meet the refugee or complementary protection criteria under the Migration Act 1958 (Cth).

Proceedings in the Federal Circuit Court

10    An application for judicial review of the decision of the Tribunal was filed by the appellant on 4 March 2016. The appellant relied upon four grounds of review in his amended application before the Circuit Court that was filed on 9 June 2016. Those grounds were as follows:

1.    The AAT made a jurisdictional error when it failed to take into account the whole of the oral and written evidence in determining whether he feared persecution or significant harm within the meaning of s 91R of the Migration Act.

2.    The Tribunal totally ignored all of the relevant matters related to the applicant’s fear and foreseeable harm. In making decision, the Refugee Review Tribunal acted without jurisdiction or in excess of jurisdiction when it failed to take into account relevant considerations.

3.    The Tribunal intentionally asked several irrelevant questions to undermine and confuse the applicant during the hearing. The applicant claims that he was denied procedural fairness when the Tribunal did not follow the Hearing Rules under the Migration Act of 1958.

The applicant claims that the Tribunal repeated same types of questions to discredit the applicant’s evidence. The applicant claims that he was denied procedural fairness when the Tribunal did not conduct the review in a judicial manner.

The applicant claims that the Tribunal’s finding of reasons is confused and the test for persecution was not applied according to the Rules of the Migration Act.

4.    The Tribunal failed to apply the correct test in relation to the complementary protection provision contained in section 36(2)(aa) of the Migration Act 1958. The Tribunal made a jurisdictional error when it did not follow Rules of Real Risk Test of persecution and harm.

11    The primary judge gave extempore reasons that carefully summarised the appellant’s claims and the consideration of them by the Tribunal. His Honour then went on to consider the appellant’s grounds of review. The primary judge concluded that no jurisdictional error had been established and that the application should be dismissed.

12    In respect of the first ground, the primary judge noted that it was clear that the Tribunal considered the appellant’s claims and the evidence before it. His Honour concluded at [21] that the first ground was ultimately an expression of the appellant’s disagreement with the Tribunal’s findings.

13    The primary judge interpreted the second ground, and its associated particulars, to comprise three contentions: that the Tribunal failed to consider the appellant’s involvement in the BNP; that the Tribunal failed to consider evidence as to “the common practice of Bangladeshi politics” and that the Tribunal was biased. At [23], his Honour rejected the appellant’s claim that the Tribunal did not take into account his involvement with the BNP, noting that the Tribunal had considered the matter at [11] to [20] of its decision and made findings that were open to it. With respect to the second contention, his Honour noted at [24] that the Tribunal had considered the claims and country information contained in the appellant’s submissions but concluded that the appellant would not be politically active if he returned to Bangladesh. Finally, the primary judge expressed the view at [25] that on a fair reading of the Tribunal’s reasons there was nothing to indicate any bias on the part of the Tribunal. His Honour concluded at [26] that the second ground was an impermissible attempt to challenge the merits of the Tribunal decision.

14    The third ground of review was dismissed on the basis that there was nothing on the face of the Tribunal’s decision or the evidence before the Court to suggest the Tribunal breached the exhaustive natural justice requirements provided for in Part 7, Div 4 of the Migration Act, nor was there any error in the Tribunal’s testing of the appellant’s evidence and then making credibility findings on the basis of inconsistencies in that evidence: see [27] to [28] of the primary judge’s reasons.

15    Finally, the primary judge concluded at [29] that no jurisdictional error was established by the complaint that comprised the fourth ground of review. The Tribunal correctly set out the test for complementary protection in s 36(2)(aa) of the Migration Act and made findings with reference to that test.

The appeal to this Court

16    On 6 October 2017, the appellant filed a notice of appeal against the decision of the primary judge dismissing his application for judicial review. That application contained three grounds. I will deal with each ground of appeal in turn.

Ground 1

17    Ground 1 is as follows:

[The primary judge] failed to hold that Administrative Appeal Tribunal committed a jurisdictional error when it failed to apply the correct test in relation to the Complementary Protection Provision contained in section 36(2)(aa) of the Migration Act. The RRT failed to separate the Claim to be Refugee and the fear of harm test for the provision of Complementary Protection. AAT decision is unreasonable with regards to Complementary Protection Provision. The Tribunal failed to account current situation in Bangladesh where leaders of BNP are accused for falls charges and are sentenced for jail or hanged. The Administrative Appeal Tribunal made on limited information. This is an error or a path leading to a judicial error is a itself to perform the statutory task imposed on the Tribunal by the Migration Act .

18    As the primary judge found at [29] of his reasons, the Tribunal correctly set out the complementary protection criterion in s 36(2)(aa) of the Migration Act at [8] of its decision. In reaching its conclusion at [61] of its decision that the appellant did not satisfy the criterion, the Tribunal relied upon the factual findings it had earlier made regarding the appellant’s claimed political involvement and imputed homosexuality. As the Minister submitted, there is no error in the Tribunal considering claims under the complementary protection criterion in this way: see SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774 at [56]-[57] per Robertson J. Thus, this ground of appeal does not disclose error on the part of the primary judge in dealing with this matter and the ground should be dismissed.

Ground 2

19    Ground 2 is as follows:

The appellant was at risk of harm in Bangladesh for the reasons and for that reasons he was forced to flee from Bangladesh. The appellant has a legitimate expectation from the Hon. Court that it would make decision based on their own objective observation of materials with regards to the appellant’s claim according to the Migration Act.

20    It is apparent from the terms of the Tribunal decision that it carefully considered the appellant’s claims but in the end concluded, based on the factual findings that it had made, that the appellant did not meet the criteria for protection in s 36(2)(a) or (aa) of the Migration Act. The making of such factual findings, and the conclusions to then be drawn from them, is properly a matter for the Tribunal. The Court’s role is restricted to the correction of any jurisdictional error made by the Tribunal in that process.

21    This ground of appeal suggests that the primary judge erred in not making a decision based on the primary judge’s “own objective observation of materials with regards to the appellant’s claim”. To do so would be to undertake impermissible merits review of the Tribunal’s decision: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 272. It follows that there could be no error on the part of the primary judge for failing to do so. Ground 2 should be dismissed.

Ground 3

22    Ground 3 is as follows:

The appellant claims that he was denied natural justice and procedural fairness when the Tribunal in making decision ignored the basic principles of objective observation of materials presented by the Appellant. The Tribunal’s whole arguments to affirm the decision of the first Respondent are unreasonable and against the procedural fairness. The Tribunal made decision with closed mind.

23    This ground asserts that the appellant was denied procedural fairness before the Tribunal and that the Tribunal was biased. As the primary judge concluded at [27] to [28] of his Honour’s reasons, that there was nothing to suggest the Tribunal breached the exhaustive natural justice requirements contained in Pt 7, Div 4 of the Migration Act, particularly in the absence of any further particulars or evidence. There was no error on the part of the primary judge in finding that there had been no denial of procedural fairness.

24    Similarly, I agree with the primary judge’s rejection of the assertion that the Tribunal was biased. No clear and particularised allegation of bias has been made, as should be done: see Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR 507 at 531. More significantly, however, I concur with the primary judge’s conclusion at [25] that, on a fair reading of the Tribunal decision, there is nothing that could substantiate such an allegation.

25    The appellant has not demonstrated any error in the decision of the primary judge. Nor does anything in the decision of the Tribunal indicate jurisdictional error on the part of the Tribunal. It is apparent from the terms of the Tribunal decision that the Tribunal carefully considered the claims made by the appellant. It considered the appellant’s claims and the evidence and made findings about those claims, as it is entitled and, indeed, required to do.

26    Therefore, the order I will make is that the appeal be dismissed with costs.

Associate:

Dated:    16 March 2018