FEDERAL COURT OF AUSTRALIA

AQA16 v Minister for Immigration and Border Protection [2018] FCA 961

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The first and second appellants pay the first respondent’s costs of the appeal.

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

REASONS FOR JUDGMENT

GLEESON J:

1    The first appellant (“AQA16”) is a male citizen of Bangladesh, the second appellant (“AQB16”) is the first appellant’s wife (also a citizen of Bangladesh) and the third appellant (“AQC16”) is their son who was born in Australia in 2009.

2    The appellants appeal from a decision of a judge of the Federal Circuit Court of Australia (“FCCA”), dismissing their application for judicial review of a decision of the second respondent (“Tribunal”) made on 25 February 2016: AQA16 v Minister for Immigration and Border Protection [2017] FCCA 864. The Tribunal affirmed the decision of a delegate of the first respondent (“Minister”) not to grant the appellants protection visas.

3    At the hearing of the appeal, AQA16 and AQB16 represented themselves. They filed written submissions and each made oral submissions in support of the appeal.

Background

4    AQA16 and AQB16 came to Australia in August 2007 on a student visa for which AQB16 was the primary applicant. They lodged applications for protection visas on 13 February 2014.

5    In broad summary, AQA16 claims to fear harm on the basis of his atheist beliefs, which he wishes to express freely. He also stated that his family (that is, AQB16 and AQC16), being Christian, would be targeted as well as him. AQB16 claims to fear harm as a minority Christian and on the basis of being a member of the same family unit as AQA16. AQC16 seeks protection on the basis of being a member of the same family unit at AQA16 and AQB16.

6    The delegate refused to grant the appellants’ protection visas on 4 September 2014.

Tribunal’s decision

7    The Tribunal stated that by and large, it accepted the evidence of AQA16 and AQB16, finding them to be honest and credible witnesses. The Tribunal found that AQA16 was an atheist and AQB was a Catholic, and that they were married in Bangladesh in May 2007.

8    The Minister’s submissions summarised the Tribunal’s reasons concerning AQA16 as follows:

8.1    The Tribunal accepted that AQA16 was ““rather outspoken and likely to state opinions, political, areligious, or otherwise, which have the capacity to antagonise the society in which he mixed in Bangladesh” [at para 46 of its decision record].

8.2    The Tribunal accepted that there was an incident in 2006 between AQA16 and four friends after he expressed his views, where his friends were angry about those views, but found that even if he had been told that he would be killed if he repeated those views, he did not face a real chance of harm from the group. This conclusion was principally based on the fact that he had returned to Bangladesh in 2012 for about six weeks during which time he met with the same group of people and was not harmed, albeit he claims that they suggested he leave Bangladesh, which the Tribunal found “cannot be considered as a threat to the first appellant’s safety” [at para 46 of its decision record].

8.3    The Tribunal accepted that AQA16 was a member of a Facebook group called Atheist Bangladesh but noted that AQA16 did not claim that he had received threats on his Facebook page [at para 46 of its decision record].

8.4    The Tribunal had regard to DFAT country information and post-hearing submissions made by AQA16 concerning the murders to three atheists in 2015. The Tribunal noted that those three people had had significant public profiles as bloggers who were active advocates of their views. While it accepted that AQA16 “may express to friends his doubts about the existence of a God”, he did not claim to have promoted secularism in the same manner as those bloggers and found that AQA16’s position was distinguishable from those persons [at para 50 of the Tribunal’s decision record].

9.     The Tribunal concluded that it did not accept that AQA16 faced a real chance of harm in Bangladesh on account of his atheism or perceived atheism [at para 51 of its decision record]. It also did not accept, after considering his cumulative claims for protection, that AQA16 faced a real chance of harm on the basis of his political opinion (by reason of being an atheist or otherwise), nor on the basis of his being a member of the same family unit as his (Christian) wife, having rejected AQB’s claims for protection [at para 52 of its decision record].

9    The Minister’s submissions summarised the Tribunal’s reasons concerning AQB16 as follows:

10.1    [The Tribunal] accepted that AQB16’s father was attacked in 2005 and that her family home was attacked in 1997 [[at para 54 of its decision record]. However it did not accept that the terrorist group led by Mannan Sikder was responsible for the attack in 1997, nor that that group was still active [at para 55 of its decision record].

10.2    [The Tribunal] accepted that AQB16 was involved in a car accident in August 2007, but did not accept that she was deliberately targeted as she had claimed [at para 54 of its decision record].

10.3    [The Tribunal] did not accept the claims that AQB16 family continued to receive threats from terrorist groups, having found her evidence to be generalised, uncorroborated and unpersuasive [at para 56 of its decision record].

10.4    [The Tribunal] accepted that AQA16 and AQB16 built a house on AQB16’s family property, but did not accept that AQB16 faced a real chance of harm for this reason [at para 56 of its decision record].

10.5    [The Tribunal] had regard to a DFAT Country Report relating to the treatment of Christian or Catholic persons in Bangladesh and AQB16’s post-hearing submissions in relation to that information and considered her submissions to be generalised and not persuasive [at paras 57 to 58 of its decision record].

11.     The Tribunal concluded-[at para 59 of its decision record], that AQB16 did not face a real chance of harm in Bangladesh on account of her Christianity.

10    The Tribunal also considered whether either AQA16 or AQB16 was owed protection obligations by reference to s 36(2)(aa) of the Migration Act 1958 (Cth) (“Act”): the complementary protection provisions. At para 62 of its decision record, the Tribunal concluded that, having regard to their circumstances, and the DFAT October 2014 Country Report, it was not satisfied that there were substantial grounds for considering that they would suffer significant harm if they were to be removed from Australia to Bangladesh.

11    As the Tribunal had rejected the claims of AQA16 and AQB16, the Tribunal noted at para 63 of its decision record that AQC16’s claim (which was dependent upon those of his parents) must also fail.

FCCA decision

12    At [45] of her Honour’s reasons, the FCCA judge records that the appellants relied upon three grounds of review, namely:

1.    The [Tribunal] failed to discharge its core function to review the decision because it failed to consider a claim made by AQA16.

Particulars:

A(i) [AQA16] claimed that he was an atheist married to a Christian. The Tribunal failed to consider that claim. By failing to consider [AQA16’s] claim, the Tribunal committed jurisdictional error.

A(ii) [AQA16] claimed that he feared harm on the basis of being a ‘free-thinker’. The Tribunal failed to consider that claim. By failing to consider [AQA16’s] claim, the Tribunal committed jurisdictional error.

A(iii) [AQA16] claimed that in 2012 he was threatened by the people who attacked him in 2006. The Tribunal failed to consider that claim. By failing to consider [AQA16’s] claim, the Tribunal committed jurisdictional error

4.    The decision of the Tribunal is irrational, unreasonable or illogical.

Particulars:

A(ii) It was illogical, or irrational, or unreasonable to find that [AQA16] was not threatened in Bangladesh in 2012, in circumstances where he claimed he met his 2006 attackers, and after he told them he lived abroad, they told him that it was better for him ‘to live there’, after he said that it was a threat, and that they said they were ‘prepared to do anything to make Bangladesh a ‘Sharia Law’ country.

6.    The Tribunal failed to discharge its core function to review the decision because it failed to have proper regard to relevant information before it.

Particulars

A(i) The Tribunal failed to consider [AQA16’s] claims that two teenagers were arrested because of their blogging, despite not having a profile.

A(ii) The Tribunal failed to consider information provided by [AQA16], being an article published by Reporters Without Borders, that showed that on 13 March 2013, a committee had been created. And which is under the control of the Prime Minister’s office, and which is tasked with identifying ‘blasphemous bloggers and bringing them to justice’.”

13    The Minister’s written submissions identified the FCCA judge’s key findings as follows:

15.1     In relation to ground 1A(i), Her Honour found that the Tribunal was clearly aware of the first appellant’s cumulative claims and did not fail to consider the relevant claim: see AB 46-48 at [50]-[60]. Her Honour did not consider that a separate claim to fear harm by reason of the appellant’s being an atheist married to a Christian was squarely raised [55] but in any event Her Honour considered that the Tribunal did consider whether the appellant was at risk of harm as an atheist married to a Christian [60];

15.2     As for Ground 1A(ii), her Honour rejected the assertion that the Tribunal failed to consider the appellant’s claim to be a free thinker and considered that the Tribunal’s conclusions in this regard were open to it: at [61]-[62];

15.3     In relation to the third particular of Ground 1, her Honour did not consider that the claims regarding the 2012 incident and the appellant’s friends were squarely raised but in any event, any such claim that may have been made to that effect was subsumed by the Tribunal’s findings of greater generality that the appellant was not threatened or harmed in any way in 2012: [63]-[70].

15.4     By Ground 4A(ii), it was contended that the Tribunal’s finding that the appellant was not threatened in 2012 was illogical, irrational or unreasonable. Her Honour held (at [78]) that the Tribunal’s findings on this matter were open to it on the evidence and materials before it and the finding was not one that no reasonable Tribunal could make on the evidence before it, referring to Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611.

15.5     In relation to the final ground relied on, her Honour held that the Tribunal had specifically referred to the first appellant’s Facebook activities and noted that they did not involve the promotion of secularism in the same way as the murdered bloggers [91]. In any event, the appellant’s counsel had conceded that engaging in Facebook activity was not the same as being a blogger: at [90]. To the extent that any particular piece of evidence was not referred to, her Honour noted that this did not necessarily constitute jurisdictional error: see Minister for Immigration and Border Protection v SZRKT (2013) 212 FCR 99 (at [91]).

15.6     Her Honour concluded that a fair reading of the Tribunal’s decision record made it clear that the Tribunal understood the claims being raised by the appellants and had had regard to all the material provided in support, as having put to them matters of concern about the evidence. The findings that were made by the Tribunal were open to it on the evidence and material before it and it followed that the Tribunal’s decision was not affected by jurisdictional error: [94]-[97].

Appeal to this court

14    The notice of appeal sets out nine numbered paragraphs under the heading “Grounds of appeal”.

Ground 1

15    Ground 1 states:

[AQA16] (Atheist) married to [AQB16] (Christian) was raised in front of the court on Ground 1A(i) because the Tribunal did not consider that:

A) The attackers who attacked [AQA16] in 2006 again threatened him in 2012 and the violence and intolerance towards the minority is rising day by day.

B) [AQB16] as a Christian had been targeted before where her father was stabbed trying to save her from kidnapping (The Court and The Tribunal understand her father was attacked in 2005 but never mention the reason).

C) [AQC16] born and raised in Australia and son of an Atheist father and Christian mother. Therefore, He will always live in the danger of attack from the terrorists.

16    This ground of appeal is expressed to refer back to the first ground of review before the FCCA and, specifically, particular A(i) to that ground of review. As appears from [12] above, the first ground of review was that the Tribunal failed to consider AQA16’s claim that he was an atheist married to a Christian.

17    The FCCA judge noted at [49] of her Honour’s reasons that the Tribunal had recorded (at para 47 of its decision record) that AQA16 claimed “a fear of harm because he is married to” AQB16. Her Honour then stated at [50] of her Honour’s reasons:

With the exception of the claim of harm based on religion (or his lack of religious views), the Tribunal understood his other claims were made on a cumulative basis.

18    The FCCA judge found (at [60]) that the Tribunal considered a claim that AQA16 was at risk of harm as an atheist married to a Christian “in light of the Tribunal’s acknowledgement of the cumulative claims made by” AQA16. This acknowledgement was recorded at both para 47 of the Tribunals’ decision record, as set out above, and at para 52 where the Tribunal said:

The Tribunal has considered [AQA16’s] other cumulative claims…the Tribunal does not accept that [AQB16] will face a real chance of harm in Bangladesh on account of her Christianity. Therefore, the Tribunal does not accept that [AQA16] will face a real chance of harm in Bangladesh for that reason.

19    In my view, paras 47 and 52 of the Tribunal’s decision record demonstrate that the Tribunal explicitly considered AQA16’s claim for protection based on the fact that he is an atheist married to a Christian. Accordingly, I am therefore satisfied that the FCCA judge did not err in concluding that the Tribunal had considered that claim.

20    Proposition A) in ground 1 does not appear to be relevant to the question of whether the Tribunal addressed the claim based on AQA16’s marital situation. The issue of the 2006 attack and the 2012 threat is addressed in relation to ground 6 below.

21    Proposition B) in ground 1 also does not appear to be relevant to the claim based on AQA16’s marital situation; the 2005 attack is addressed in relation to ground 2 below.

22    Proposition C) in ground 1 is in the nature of a submission rather than an identification of any error by the FCCA judge or the Tribunal.

23    Accordingly, ground 1 fails.

Ground 2

24    Ground 2 is as follows:

The Court said that The Tribunal considered all the claims in the relation of other claims, where the Tribunal totally ignored a serious claim made by the Second Appellant. The Second Appellant was a victim of failed kidnapping where her father was stabbed by the terrorists to prevent the kidnapping in 2005. In the findings The Tribunal just mentioned that The Second Appellant’s father was attacked in 2005 but failed to mention the involvement of the Second Appellant. The Tribunal discussed 1997 and 2007 attack in the decision making process but failed to mention 2005 attack where the Second Appellant was directly involved. Also The Tribunal dismissed the claim that The Second Appellant’s family keep receiving threats (paragraph 56), reasoning the 1997 attack was some 20 years back ( paragraph 55). Here the Tribunal again avoided 2005 attack which indicates that the Second Appellant’s family keep getting threats from terrorists.

So, it proves that The Tribunal’s decision is incomplete, irrational and illogical. Therefore the Court’s finding that the Tribunal considered all the claims is also not right.

25    At [94] of her Honour’s reasons, the FCCA judge concluded:

A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims being made by the Applicant; explored those claims with the Applicant and the second applicant at a hearing; and, had regard to all material provided in support. The Tribunal put to the Applicant matters of concern it had about his evidence and noted his responses. The Tribunal identified independent country information to which it had regard and which it discussed with the Applicant.

26    The grounds of review advanced in the FCCA, as set out at [12] above, concerned only the claims of AQA16. Accordingly, the FCCA judge was not asked to consider whether the Tribunal had ignored a claim made by AQB16. In effect, by ground 2, the appellants are seeking to raise a point not put to the FCCA judge.

27    However, the Minister’s submissions did not object to ground 2, or contend that leave was required to pursue it. On that basis, to the extent that leave is required to pursue ground 2, I will grant it if the ground has any merit: see ARK16 v Minister for Immigration and Border Protection [2018] FCA 825 at [25], BOZ16 v Minister for Immigration and Border Protection [2018] FCA 418 at [66].

28    The relevant claim was made by AQB16 in the following passage of her statement in support of her protection visa application:

As you know, my father has a school and coaching centre… One terrorist group from Mohammadpur gave threat to kill us for money. After the threat one attack happened with me in 2005. My brother and I was going to our school with some papers by rickshaw in the evening in Mohommadpur. Suddenly one terrorist group came and stopped our rickshaw and wanted to take us with them. In the meantime my father was behind us and shouted. After that they went to my father’s rickshaw and stabbed him with knife. We took him to hospital and at last he survived. I also survived for my father that time. I could not feel comfortable to stay in our country after this happened. It is not a life where we do not have any safety of our life just because we born as a Christian as a minority in one country.

29    At para 25 of its decision record, the Tribunal summarised this aspect of AQB16’s claim as follows:

(c) her father was attacked in 2005 by a terrorist group. After that she no longer felt safe in Bangladesh.

30    I accept that this is an incomplete summary because it omits the allegation that AQB16 herself was stopped by the terrorists who wanted to take her and her brother. When considering AQB16’s claims, from para 54 of the decision record, the Tribunal refers to the fact that her father was attacked in 2005 but does not mention that AQB16 was personally involved in the 2005 incident.

31    At the hearing, AQA16 also submitted that the Tribunal failed to discuss the fact that AQB16’s sister and brother have both moved from Bangladesh: the brother living in Canada and the sister living in the United States of America. AQA16 argued that the fact that the family has fallen apart is another indication that it was subject to threats in Bangladesh.

32    On behalf of the Minister, Ms Graycar submitted that the Tribunal’s reasons made it clear that no claim had been overlooked, and the mere fact of not referring to a piece of evidence does not constitute error, citing WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593. In that case, the Full Court said (at [45] to [47]):

[45] In conducting its review the Tribunal must have regard to the criteria for the grant of a protection visa and in particular the criterion that the applicant for a visa is:

‘... a non-citizen in Australia to whom the [Tribunal] is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol;’ (s 36(2)(a) read with s 415(1))

The critical question which ordinarily will have to be addressed in applying this criterion is whether the applicant has a well-founded fear of persecution for one of the Convention reasons. If the Tribunal fails to consider a contention that the applicant fears persecution for a particular reason which, if accepted, would justify concluding that the applicant has satisfied the relevant criterion, and if that contention is supported by probative material, the Tribunal will have failed in the discharge of its duty, imposed by s 414, to conduct a review of the decision. This is a matter of substance, not a matter of the form of the Tribunal’s published reasons for decision.

[46] It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [87]-[97]) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The Tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised `with an eye keenly attuned to error’. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.

[47] The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.

33    The appellants do not suggest that the Tribunal overlooked AQB16’s claim to protection on the grounds of her religion. Rather, the contention is that the Tribunal overlooked the details of the 2005 incident which placed AQB16 in a central role, as one of the initial targets of a terrorist attack. I do not accept that this apparent failure on the part of the Tribunal was a failure to address a contention which, if accepted, might establish that AQB16 had a well-founded fear of persecution for a Convention reason. In reaching that conclusion, I note that the Tribunal ultimately made its decision that AQB16 did not have a well-founded fear of persecution on account of her Christianity because of the absence of evidence of continuing threats to her family from terrorist groups, and because of country information. That country information, with which the appellants disagreed, included that State security forces had generally responded effectively to societal violence against Christians and, in urban settings, instances of secular and political violence against Christians were infrequent and Christians were generally able to practise their faith without interference.

34    Although the appellants argued that the incidents in 1995, 2005 and 2007 indicated the AQB16’s family “keep getting threats from terrorists”, it was open to the Tribunal to make the finding that it did not accept that the family “has continued to receive threats from terrorist groups” when the Tribunal’s decision was made in February 2016, over eight years after the August 2007 car accident which, in any event, the Tribunal did not accept was a deliberately targeted attack.

35    Accordingly, ground 2 fails.

Ground 3

36    Ground 3 is:

The Court overruled that the writing on Facebook is not blogging. It is not correct. Blogging is writing online in any platform such as Facebook. Some choose to write on specific topic on specific websites, others write on general platform. Both are blogging but the effectiveness depends on the platform. Writing on Facebook is more effective in many cases where more people have easy access to that platform. For instance posting photos on Instagram is more effective for photo bloggers. All these activities are blogging. Therefore the First Appellant is a Blogger.

37    This ground raises, in essence, the factual question whether the Tribunal erred in finding that AQA16 was not a blogger.

38    At the hearing of the appeal, AQA16 drew attention to a media report provided to the Tribunal, concerning the murder of Washiqu Rahman Babu. The Tribunal’s reasons record that the murders of Mr Babu and two others were referred to by AQA16 in a post-hearing submission. The media report records that Mr Babu had a month earlier paid tribute to Avijit Roy, another blogger who was said to have been murdered due to his outspoken criticisms of Islamic extremism. Mr Babu had done this on his Facebook page with a post that read “words cannot be killed” and included the hashtag“#iamavijit”. The article also reported that Mr Babu was a member of eight Facebook group pages, including one titled Atheist Bangladesh.

39    AQA16 also referred to a document provided to the Tribunal showing that he was a member of the Atheist Bangladesh Facebook group.

40    Based on these matters, AQA16 argued that the Tribunal should have appreciated that he was in a comparable position to Mr Babu.

41    At [86] of her Honour’s reasons, the FCCA judge said:

[AQA16] never articulated or squarely raised a claim to be a blogger. In any event, the Tribunal distinguished [AQA16’s] standard activities from those of the murdered bloggers in findings referred to above that were open to the Tribunal on the evidence and materials before it.

42    At [90] of the FCCA judge’s reasons, her Honour recorded the concession made during the FCCA hearing by the appellant’s then-lawyer, Mr Dobbie, that engaging in Facebook activity is not the same as being a blogger.

43    At para 48 of the Tribunal’s reasons, the Tribunal referred to the DFAT Country Report for Bangladesh dated 20 August 2014 concerning the position of atheists. The passage cited by the Tribunal includes the following:

DFAT assesses that instances of violence against atheists are isolated and directed at high-profile individuals who personally manage “pro-atheist” campaigns. Atheists are generally able to live free from discrimination and violence on a day-to-day basis in Bangladesh. Atheists have a low risk of being arrested or detained by state authorities under the ICT Act.

44    In the context of considering the relevance of the DFAT country information concerning the position of atheists in Bangladesh and the murders of three atheist “bloggers”, at para 50 of its decision record the Tribunal said:

[AQA16] notes that three atheists were murdered this year in public places. The Tribunal notes that each of the three persons to whom [AQA16] refers…had a significant public profiles…as bloggers who advocated, respectively, free expression, “irrational religious beliefs[”], and rallied against religious fundamentalism. All discussed and promoted secular themes. [AQA16] did not claim that in his Facebook activities or in his other activities that he promoted secularism in the same manner as these bloggers. While the Tribunal accepts that [AQA16] may express to friends his doubts about the existence of a God, the Tribunal finds his position to be distinguishable to that ascribed to the bloggers the subject of the country information provided.

45    From this passage, it is apparent that the Tribunal did not reject the proposition that AQA16 was a “blogger” but rather found that AQA16 was in a different position from the murdered bloggers by references to their different activities. The Tribunal’s assessment was that Mr Babu had a significant public profile, in contrast to the position of AQ16, and that he discussed and promoted secular themes. Having regard to the Tribunal’s recorded finding that ABA16 did not claim that he promoted secularism in the same manner as the relevant bloggers (including Mr Babu), this passage involves factual assessments that it was open to the Tribunal to make.

46    Accordingly, ground 3 does not demonstrate any error on the part of either the FCCA judge or the Tribunal.

Ground 4

47    Ground 4 states:

The Court left some of the evidence open for the Tribunal’s Judgement which could have changed the outcome of the judgement if considered.

The Tribunal understand that [AQA16] is an outspoken person but separated his position from the other bloggers. The Tribunal used Avijit Roy’s example from the country information to prove that only prominent bloggers are targeted. These findings were wrong because:

A)    Washiqur Rahman Babu was killed by lslamists for his Facebook Posts and had a similar kind of profile as [AQA16]. The report provided with the matter also proved it. This information asserts that the Atheists of any calibre has been killed and attacked in Bangladesh. So, the chance of harm for [AQA16] is real.

B)    Two teenagers were arrested over a Facebook conversation with a third party which was considered as blasphemous blog by the authority. They were even sent to jail under the ICT act. It was also not been considered by the Tribunal that being Atheist or secularist anybody can be targeted by the authority.

The Tribunal avoided both of these evidences which shows that the Atheists are in greater risk, therefore made a jurisdictional error, as these information directly related to The First Appellant.

48    As to sub-paragraph A), it was a matter for the Tribunal to weigh up the evidence of the respective activities of Mr Babu and AQA16. The appellants did not identify any legal error on the part of the Tribunal in doing so, or in the FCCA judge’s consideration of this aspect of the Tribunal’s decision.

49    Sub-paragraph B) concerns information obtained from an article entitled “Teenage Bloggers in Bangladesh Arrested for ‘Blasphemous Facebook Posts’”. AQA16 had relied on the article to support a contention that it was not necessary to be a prominent blogger to be at risk of harm. The FCCA judge referred to this article at [88] of her Honour’s reasons, and noted correctly (at [89]) that the Tribunal was not required to refer to every piece of evidence before it. At most, the Tribunal failed to advert to this evidence, which might have led it to make a different finding of fact: see WAEE above. The Tribunal did not fail to address the contention that AQA16 claimed to fear harm by reason of his expression of atheist views.

50    Accordingly, I am satisfied that ground 4 does not identify any appellable error on the part of the FCCA judge, or jurisdictional error on the part of the Tribunal.

Ground 5

51    Ground 5 states:

The Court did not look at the fact that The Tribunal’s arguments are contradictory.

In the Tribunal’s findings it stated that the First Appellant is an Atheist and was attacked for that reason in 2006 (paragraph 46). Later in the decision (paragraph 50) The Tribunal said that the Atheist bloggers who are harmed are different from the First Appellant. Now, The First Appellant was already attacked with the profile he had at that point of time. So, it dismisses the Tribunals findings by itself that the First Appellant does not have the profile or activity which can lead to physical harm.

52    Paragraph 46 of the Tribunal’s decision record states, relevantly:

The Tribunal accepts that [AQA16] is an atheist. It also accepts that he is an articulate, intelligent and rather outspoken young man. It accepts that he was likely to state opinions, political, areligious, or otherwise, which have the capacity to antagonise the society in which he mixed in Bangladesh. The Tribunal accepts there was an incident in 2006 where a group of friends were angry with [AQA16] because of his atheist views. However, even accepting the group of four told [AQA16] they would kill him if he ever repeated those remarks, the Tribunal finds that the claim that [AQA16] faced a real chance of harm from that group if he returned to Bangladesh not to be well-founded. This is principally because [AQA16] returned to Bangladesh in 2012 and stayed for about six weeks. He was not harmed by that group in circumstances when he met them during his stay. The Tribunal accepts that they suggested he leave Bangladesh, but considers that this of itself cannot be considered as a threat to [AQA16’s] safety. The Tribunal also accepts that he is now a member of a Facebook group called Atheist Bangladesh, but notes that [AQA16] does not claim that he had received threats on his Facebook page.

53    The relevant portion of paragraph 50 of the Tribunal’s decision record is set out at [43] above.

54    I do not accept that there is any inconsistency in the Tribunal’s reasons. The Tribunal explained at para 46 why it did not consider that the 2006 attack caused AQA16 to have a well-founded fear of harm, the explanation being that AQA16 spent six weeks in Bangladesh without being threatened in 2012, even though he met the group who were responsible for the 2006 attack during his 2012 visit.

55    Accordingly, I do not accept that ground 5 discloses any error by the Tribunal or the FCCA judge.

Ground 6

56    Ground 6 refers to the claim made by AQA16 that in 2012 he was threatened by the people who attacked him in 2006. As appears from para 46 of the Tribunal’s record, set out above, the Tribunal found that AQA16 was not threatened.

57    Ground 6 contends that the Tribunal failed to consider AQA16’s claim because:

A)    The Tribunal accepted that the First Appellant was suggested by the group to leave Bangladesh (paragraph 46). The suggestion here means that the Group of people who attacked him before told him to leave Bangladesh because he is an Atheist. Even though the First Appellant said he unwillingly met with them when they threatened him but the Tribunal put threat as suggestion to make the claim light.

B)    The First Appellant returned Bangladesh for a difficult medical situation of his Mother and Elder Brother. The evidence of the matter was fully provided to the Tribunal but Tribunal did not make any comment on that.

Therefore, the Tribunal made a jurisdictional error.

58    The matters raised by AQA16 do not indicate a failure on the Tribunal’s part to consider his claim but rather a rejection of AQA16’s claim. It was a matter for the Tribunal to decide whether the evidence of AQA16’s 2012 interaction with his 2006 attackers involved any threat. The Tribunal did not accept that a threat was made, contrary to AQA16’s argument. It was legally open to the Tribunal to evaluate the evidence in this way.

59    Accordingly, there was no jurisdictional error made by the Tribunal and ground 6 fails.

Grounds 7 to 9

60    These grounds state:

7.    All the submissions made to the First and Second Respondent was in relation to the claims. Instead of claiming the same matter again and again the First and Second Appellant choose to provide as much information as possible. The documents prove it that the Appellants are fear for their life because the lslamists want to make Bangladesh a Sharia Law country. As previously raised the issue, the Appellants choose to put evidence forward instead of claiming the same thing again. For that reason the Court’s view of not pursuing the threats in the basis of Sharia Law is not correct.

8.    The First and the Second Appellant provided honest and credible information about the country report according to the Tribunal.

A)    Information about the Christians population is not correct in the DFAT report. If the report does not have information where the Christians live in Bangladesh, then all the other information it provided in relation to the Christians is valueless.

B)    Information about the Christian and Atheists are in low risk also not correct according to the recent reports.

C)    It does not have any information about the huge uprise of lslamists against the Atheists and Secularists in 2013 which continued till today.

D)    It also has no information about the fact that because of that uprise, Government of Bangladesh introduced amended ICT Act 2013 to arrest and harass Atheists and Secularists. As soon as they pass the amendment, they start arresting people for Facebook posts. The situation is same till today.

E)    The Court did not consider the Ground as The Tribunal decided to use DFAT report when the different information is available.

9.    According to the law, “owing to well-founded fear of being persecuted...”, the findings suggests that the First Appellant was attacked as an Atheist in 2006, Threatened as an Atheist to leave the country in 2012 (The Tribunal said suggested). The Second Appellant’s family attacked in 1997 as Christian, The Second Appellant was subject to attempted kidnapping where her father was stabbed (The Tribunal mentioned her father was attacked but no mention of the Second Appellant ), then 2007 attack but dismissed by the Tribunal as an attack. I believe there is enough ground to establish the Appellants have well-founded fear of persecution.

61    These grounds raise issues concerning the Tribunal’s fact-finding. They do not identify any jurisdictional error by the Tribunal or appellable error by the FCCA judge.

62    In particular, in ground 8, the appellants complain about the Tribunal’s findings by reference to country information. At para 57 of its decision record, the Tribunal set out an extract from a DFAT Country Report for Bangladesh dated 20 August 2014 which purports to record information concerning the position of Christians in Bangladesh. The report states that the majority of Christians live in the Chittagong Hill Tracts, and a small number live in Dhaka. AQA16 submitted that this was a “huge mistake” concerning the size and location of Bangladesh’s Christian population.

63    As Ms Graycar observed, it is not the Court’s role to engage in a review of the accuracy of country information. The Full court in NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11] explained the position as follows:

By s 420(2)(a) of the Migration Act, the Tribunal is not bound by the rules of evidence. By s 424(1), in conducting a review, the Tribunal may get any information that it considers relevant. There can be no objection in principle to the Tribunal relying on ‘country information’. The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function. Such information as the Tribunal obtains for itself is not restricted to ‘guidance’, as the appellants submitted. It may be used to assess the credibility of a claim of a well-founded fear of persecution. It is not, as the first appellant submitted, an error of law, or a jurisdictional error, for the Tribunal to base a decision on ‘country information’ that is not true. The question of the accuracy of the ‘country information’ is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of ‘country information’, it would be engaging in merits review. The Court does not have power to do that.

64    Accordingly, grounds of appeal 7 to 9 fail.

Conclusion

65    As all grounds of appeal have failed, the appeal must be dismissed. Costs should follow the event.

Associate:

Dated:    29 June 2018