FEDERAL COURT OF AUSTRALIA

DVP16 v Minister for Immigration and Border Protection [2019] FCA 539

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs.

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

REASONS FOR JUDGMENT

WIGNEY J:

1    The appellant, a national of Bangladesh, appeals from a decision of the Federal Circuit Court. The Circuit Court dismissed the appellant’s application for judicial review of a decision of the Refugee Review Tribunal (now the Administrative Appeals Tribunal) to affirm a decision of a delegate of the Minister for Immigration and Border Protection not to grant him a Protection (Class XA) visa.

2    For the reasons that follow, the appeal has no merit and must be dismissed.

Background

3    The appellant has resided in Australia since 1999. He arrived in Australia on 5 July 1999 and applied for a Protection visa on 30 July 1999. That application was refused by both the Minister’s delegate and the Tribunal. After withdrawing an application for judicial review of the Tribunal’s decision, the appellant made an unsuccessful application for ministerial intervention pursuant to ss 417 and 48B of the Migration Act 1958 (Cth).

4    On 2 October 2012, the appellant lodged a second application for a Protection visa. That application was deemed to be invalid, as the appellant was barred from lodging a further application by s 48A of the Act. In 2013, however, the Full Court of this Court found that visa applicants who had unsuccessfully applied for a protection visa prior to the commencement of the complementary protection criterion in s 36(2)(aa) of the Act were entitled to lodge a further application and have their claims for protection assessed against the complementary protection criterion: see SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235. On 29 August 2013, the appellant lodged a second application for a Protection visa in reliance on SZGIZ. That application was deemed to be a valid application.

appellant’s claims

5    In his visa application, the appellant claimed to fear harm in Bangladesh on the basis of his Hindu religion. He claimed that he had fled Bangladesh due to the poor treatment of his father, a “prominent minority activists [sic]” who had been involved with the Bangladeshi Nationalist Party (BNP), by “Muslim Fundamentalist [sic] groups”. He claimed that the situation became worse after the opposing Awami League came into power in 1996. His said that his family became the target of attacks and threats and his family house was burned down on three occasions.

6    The appellant claimed that in July 1997, the Awami League led by the Muslim Fundamentalist groups attacked and assaulted his family, forced them from their house, stripped them of their assets and property and threatened to kill them if they did not leave Bangladesh. The appellant and his family initially fled to India, but they were not able to get protection from the Indian government. The appellant accordingly fled to Australia in 1999.

7    A delegate of the Minister refused to grant the appellant the Protection visa because the delegate was not satisfied that the appellant was a person to whom Australia has protection obligations. He therefore did not satisfy s 36(2) of the Act. The appellant then applied to the Tribunal for a review of the delegate’s decision.

in the tribunal

8    The appellant appeared before the Tribunal on 10 November 2016 to give evidence and present arguments.

9    In its Statement of Decision and Reasons, the Tribunal found that a key issue was the risk of harm for the appellant should he return to Bangladesh based on the events he claimed occurred around 20 years ago (Reasons at [42]).

10    Despite having found that there were some inconsistencies in the appellant’s evidence, the Tribunal ultimately accepted that the appellant’s family were driven out of their home town by extremist Muslims. The Tribunal was also prepared to accept that there may have been people associated with the Awami League who were involved in the intimidation of the appellant’s family on the basis of his father’s association with the BNP (Reasons at [39]). The Tribunal found, in that regard, that the targeting of the appellant’s family was based on a “carryover of animosity directed towards the [appellant’s] father, based on his political and other activities”, rather than animosity towards Hindus generally (Reasons at [40]). The Tribunal was also satisfied that the appellant’s family property in his home town and in Dhaka had since been taken by Muslim extremists or other organisations associated with the Awami League (Reasons at [41]).

11    Despite those findings, the Tribunal identified what it considered to be two key issues concerning the appellant’s claim that he feared that he would be harmed if he returned to Bangladesh.

12    The first issue concerned the appellant’s claim that if he returned to Bangladesh he would take steps to reclaim the land that had been taken from his family. The Tribunal accepted, in that context, that Hindus making claims to land are “subject to moderate levels of official discrimination” (Reasons at [43]).

13    The second issue, referred to previously, was the risk of harm to the appellant should he return to Bangladesh given that the main events which formed the basis of his claims for protection had occurred around 20 years ago.

14    In relation to the first of those issues, the Tribunal noted that the appellant had initially given evidence that he would not take steps to recover his family’s land because that would not be possible and he would be harmed if he took those steps. Later in the Tribunal hearing, however, the appellant contradicted that evidence and said that he would feel compelled to return to his home town and seek to recover the land. Later still, the appellant appeared to vacillate as to what, if any, steps he would in fact take. The Tribunal observed, in that regard, that the appellant “provided no clear indication that he would take such steps, or that he would take any steps” and that ultimately the “clear evidence of the [appellant] was that he would not take steps, as much as he would like, to recover the land, because there would be no process available to do achive [sic] this, and he would not have the courage to do so” (Reasons at [44]).

15    The Tribunal’s ultimate finding in relation to this issue was that it was not satisfied that if the appellant returned to Bangladesh would take steps to reclaim his lost family land such as to lead to a real risk of him facing significant harm (Reasons at [47]-[49]). The Tribunal also appeared to find that the harm to which the appellant would be exposed, should he take any such steps, would not in any event amount to significant harm (Reasons at [50]).

16    As for the second issue, the Tribunal noted in its Reasons that it explored with the appellant whether any lingering adverse intentions held by those who had wished in the past to harm the appellant and his family due to the political and other connections of his father would by now have dissipated (Reasons at [51]). Ultimately, the Tribunal concluded that that was likely to be the case. The Tribunal stated (Reasons at [52]):

The Tribunal is not satisfied that the applicant would be at a real risk of significant harm, if he returned to his home area, from those who had targeted the family previously, given that the adverse attention in his family culminated almost 20 years ago, and that the applicant’s father, who was at the heart of the adverse attention of the family, had died almost 30 years ago, and that all of the immediate family of the applicant left in 1997 and have not returned.

17    Significantly, the Tribunal also found that, in any event, any risk of harm to the appellant should he return to Bangladesh would be “localised to the [appellant’s] home area” and that it would be reasonable for the appellant to live or relocate to Dhaka, where he would not face any real risk of significant harm (Reasons at [54]-[60]). It should be noted, in that context, that the appellant had initially nominated Dhaka as the place where he would be likely to live if he returned to Bangladesh (Reasons at [54]).

18    The Tribunal also considered other elements, or potential elements, of the appellant’s claim to fear harm if he returned to Bangladesh. The Tribunal noted that the appellant had not provided any evidence of any significant political involvement on his part, other than the potential of being “linked” to the BNP by persons in his home area as a result of his father’s BNP associations. It also noted that the appellant had not indicated that he would wish to be politically involved on return to Bangladesh. In those circumstances the Tribunal was not satisfied that the appellant faced a real risk of significant harm on return to Bangladesh as a result of being, or being perceived to be, a supporter of the BNP or any other political party (Reasons at [60]). The Tribunal also concluded that even if there was a “lingering perception” in the appellant’s home area that he was somehow affiliated with the BNP, he could in any event safely relocate to Dhaka (Reasons at [60]).

19    The Tribunal also considered whether there was any risk that the appellant would be harmed if he returned to Bangladesh on account of his religion. The Tribunal accepted that the appellant would wish to continue to practice his Hindu religion if he were to return to Bangladesh (Reasons at [62]). In that context, the Tribunal had regard to country information concerning violence directed at Hindus in Bangladesh (Reasons [63]), including information and statistics for the years 2014 and 2015 in relation to attacks on Hindus. The statistics revealed, amongst other things, that there were 13.5 million Hindus living in Bangladesh, which constituted 8.5 per cent of the population. The information included that there were no restrictions on Hindus practising their religion and that Hindus make significant contributions to Bangladeshi public life (Reasons at [64]). In all the circumstances, the Tribunal concluded that it was not satisfied that the appellant faced a real risk of significant harm in Bangladesh on the basis of his religion (Reasons at [68]).

20    Finally, the Tribunal considered the appellant’s claims to the effect that if he returned to Bangladesh he would be forced to convert to Islam, would be harmed because he had lived in a Western country, or would be harmed because he was perceived to be wealthy. The Tribunal found, however, that those claims were essentially unsupported by any evidence, including the independent country information (Reasons at [69]-[73]).

21    It should finally be noted for completeness that the Tribunal considered a submission made on the appellant’s behalf that he suffered from anxiety and panic attacks and that this could explain some of the difficulties with his evidence. In light of the way the appellant had presented at the hearing, however, the Tribunal was not satisfied that he was confused as a result of any cognitive impairment (Reasons at [46]).

22    Having regard to all its findings, the Tribunal was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the appellant returning to Bangladesh, there was a real risk that he would suffer significant harm (Reasons at [74]). The Tribunal also found that, even if it was wrong in making that finding, it would nevertheless be reasonable for the appellant to relocate to Dhaka where there would not be a real risk of harm to the appellant. For those reasons, the Tribunal was not prepared to find that the appellant satisfied the criterion in s 36(2)(aa) of the Act as a person in respect of whom Australia has protection obligations. The Tribunal accordingly affirmed the decision under review not to grant the appellant a Protection visa.

IN THE CIRCUIT COURT

23    The appellant applied to the Circuit Court for judicial review of the Tribunal’s decision pursuant to s 476 of the Act. He was not legally represented. He filed an application containing five grounds of review. The appellant subsequently filed an amended application which largely repeated the five grounds in his initial application but also included what were said to be “particulars” of the grounds. Those particulars could perhaps more accurately be characterised as submissions or argument.

24    The grounds set out in the amended application, not including the lengthy particulars, were as follows (as drafted):

1.    The Administrative Appeal Tribunal (the Refugee) (the Tribunal) made error of law and failed to exercise the proper procedure In relation to make decision on the review of the applicant’s protection visa rejection by the first respondent.

2.    The manner in which the tribunal dealt with the application and the applicant was such that it is possible to fairly apprehend that the tribunal did not bring an impartial mind to the resolution of the matter before it.

3.    The second respondent has denied the applicant’s natural justice and procedural fairness pursuant to s423A and 430(1)(c) and (d) of the Migration Act 1958.

4.    The applicant claims that the Tribunal was preoccupied and that was why he was denied natural justice and procedural fairness when the Tribunal formed the view about the applicant before the hearing. Preoccupation is clearly authenticated in its decision that the Tribunal has cut & pasted from the delegate’s decision.

5.    The applicant was deprived of the natural justice and procedural fairness. The tribunal did not give neutral view in assessing/reviewing the applicant’s claim whose interest has adversely affected by the primary decision. The review authority did not given the applicant opportunity in a correct manner to present his case. The Tribunal did not follow the hearing rule as based on Maxim which is clearly recognized as a denial of procedural fairness.

25    The appellant also filed written submissions in support of his application.

26    In his reasons for judgment the primary judge addressed at considerable length what he perceived to be the grounds advanced in and the issues raised by the appellant’s original application, his amended application, including the particulars, and the the submissions.

27    In relation to the original application, the primary judge found that none of the review grounds contained therein disclosed any jurisdictional error on the part of the Tribunal. His Honour noted that none of the grounds identified with sufficient particularity the error that was said to have been made by the Tribunal (Judgment at [14]-[18]).

28    In relation to the amended application, the primary judge again concluded that none of the specified review grounds disclosed any jurisdictional error on the part of the Tribunal. That was again because the grounds did not identify the particular acts or omissions of the Tribunal which were said to constitute or comprise the various assertions of error.

29    The primary judge then turned his attention to the so-called “particulars” which were included in the amended application. His Honour dealt with what he perceived to be nine separate assertions made in the particulars.

30    First, his Honour rejected the apparent assertion that the Tribunal had disregarded certain “additional information” which the appellant provided during the course of the hearing (Judgment at [22]). The primary judge noted that it was not clear what the supposed additional information was given that it had not been identified. His Honour found that if the “additional information” which was the subject of this ground was certain “country information” which had been provided by the appellant’s representative, that country information had in fact been considered by the Tribunal. It was referred to by the Tribunal in its Reasons as “[f]urther independent information”.

31    Second, the primary judge rejected an apparent claim that the Tribunal had failed to comply with s 424A of the Act because it failed to disclose to the appellant certain country information and inconsistencies in the appellant’s claims (Judgment at [23]). The primary judge reasoned that country information fell within s 424A(3)(a) of the Act and therefore was not required to be disclosed in accordance with s 424A. The Tribunal also found that, to the extent that the Tribunal relied on inconsistencies between the appellant’s claims, those inconsistencies were also not “information” for the purposes of s 424A of the Act.

32    Third, the primary judge found that there was no jurisdictional error on the asserted basis that the Tribunal had failed to consider documents as required by s 424(1) of the Act (Judgment at [24]). It was unclear to his Honour exactly which documents the appellant asserted the Tribunal did not consider.

33    Fourth, the primary judge rejected the contention that the Tribunal had failed to ensure that the appellant understood the issues and in doing so had “lost its neutrality” (Judgment at [25]). His Honour noted that the transcript of the hearing was not in evidence, the appellant had had the benefit of legal assistance and that there was nothing in the Tribunal’s Reasons which suggested that the appellant was not afforded a “real and meaningful” hearing.

34    Fifth, the primary judge dismissed the contention that the Tribunal had rejected the appellant’s entire claim without giving him the benefit of the doubt (Judgment at [26]). The primary judge found that the appellant’s evidence referred to in this “particular” had in fact been accepted by the Tribunal.

35    Sixth, the primary judge rejected the assertion that the Tribunal had erred in finding that the appellant as a Hindu in Bangladesh had concocted all of his claims because no such finding had been made.

36    Seventh, the primary judge considered the appellant’s contention that the Tribunal had failed to apply the correct subjective and objective test of well-founded fear and had erred because it had failed to consider whether “as a Hindu minority, there was a real chance the [appellant] may suffer persecution in the reasonably foreseeable future by reason of his political beliefs”. The primary judge noted that the appellant’s claims were only required to be assessed against the complementary protection criterion and not the criterion in s 36(2)(a) of the Act (Judgment at [28]). The primary judge found, in that context, that the Tribunal’s reasons showed that it had considered, but was not satisfied, that he had met the complementary protection criterion.

37    Eighth, the primary judge rejected the contention that the Tribunal had failed to comply with s 424A of the Act in respect of an “extract from the primary decision on which it relied”. His Honour reasoned that there was no suggestion that the Tribunal relied on any extract from the delegate’s decision and that, while the Tribunal included an extract from the earlier reasons of the Tribunal in respect of the appellant’s first Protection visa application, that extract did not comprise information within the terms of s 424A of the Act.

38    Ninth, the primary judge rejected the contention that the Tribunal contravened s 424A of the Act because it failed to disclose to the appellant the adverse conclusions that it made against him. His Honour reasoned that the prospective adverse conclusions comprised the Tribunal’s “subjective appraisals, thought processes or determinations” and therefore did not comprise “information” for the purposes of s 424A of the Act: cf. VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 236 FCR 549 at [24].

39    The primary judge also considered and rejected a number of assertions, or implicit assertions, that were made in the appellant’s written submissions. Some, but not all, of those assertions were repeated in the particulars to the amended notice of appeal.

40    First, the primary judge again rejected the contention that the Tribunal had failed to comply with s 424A of the Act in relation to country information and inconsistencies in the various claims made by the appellant (Judgment at [31]).

41    Second, the primary judge rejected the contention that the Tribunal had failed to put to the appellant that he could safely relocate within Bangladesh (Judgment at [32]). The primary judge referred, in that context, to the Tribunal’s Reasons at [54] which referred to the appellant indicating “that he may be able to live safely in Dhaka if there were difficulties in his home area”.

42    Third, the primary judge rejected the contention that the Tribunal contravened s 424A of the Act in respect of the construction it put on information from independent sources (Judgment at [33]). His Honour interpreted this to again be a complaint concerning the non-disclosure of country information, which was excluded from the operation of s 424A.

43    Fourth, the primary judge referred to and again rejected the contention that the Tribunal had contravened s 424A in respect of the “extract from the primary decision” (Judgment at [34]).

44    Fifth, the primary judge rejected the contention that it was not open to the Tribunal to rely on country information “to weigh against the [appellant’s] case” (Judgment at [35]). In this regard, his Honour referred to authority for the proposition that “there can be no objection in principle to the Tribunal relying on ‘country information’”: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11] per Gray, Tamberlin and Lander JJ.

45    Sixth, the primary judge rejected the contention that the Tribunal had somehow erred in finding that the appellant was “an ‘incredible witness’ as he failed to state his political activities and fears to the tribunal” (Judgment at [36]). His Honour reasoned that the Tribunal had made no such finding and that, to the extent that the Tribunal did not accept some of the appellant’s claims and evidence, those findings were reasonably open to it on the evidence before it.

46    Seventh, the primary judge similarly rejected the contention that the Tribunal erred in holding that the appellant was “not pursued and threatened by the opposition parties” (Judgment at [37]). His Honour again reasoned that the asserted finding did not reflect any finding actually made by the Tribunal.

47    Eighth, the primary judge rejected a contention that the Tribunal erred in using a “template” recital of the law (Judgment at [38]). His Honour reasoned that, even accepting that the Tribunal’s reasons included what could reasonably be characterised as a template statement of the relevant criteria for the grant of a Protection visa, that itself did not disclose any jurisdictional error.

48    Ninth, the primary judge again rejected the contention that the Tribunal had disregarded information which had been submitted by the appellant in support of his second Protection visa application (Judgment at [39]). His Honour also rejected the contention that the Tribunal had failed to give the appellant an opportunity to respond to its finding that “documents tendered by the [appellant] were inconsistent or not genuine”. His Honour reasoned that no such finding was made by the Tribunal.

49    Tenth, the primary judge again rejected a series of contentions that merely repeated assertions made in the “particulars” to the amended application (Judgment at [40]).

50    Eleventh, the primary judge rejected the contention that the Tribunal had failed to review the appellant’s case with a “fresh look” and consider his claims (Judgment at [41]). His Honour again reasoned that the Tribunal’s reasons revealed that it had considered the appellant’s case “in the manner in which it was required”.

51    Finally, the primary judge considered an issue which was not directly raised by the appellant. That issue was whether the Tribunal’s reasoning in relation to the appellant’s claim that he would seek to recover his family’s property if he returned to Bangladesh was in any way contrary to the reasoning of the High Court in S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473. It is unnecessary to give any detailed consideration to his Honour’s findings and reasoning in respect of this issue, particularly as they were not in any way challenged on appeal. It is sufficient to note that the primary judge accepted the Minister’s submission that even if the reasoning in S395/2002 applied, the harm to which the appellant would be exposed would not amount to significant harm (Judgment at [50]). The primary judge clearly considered this important because it meant that, even if the Tribunal had assessed the future risk to the appellant incorrectly, it was not a material error because the Tribunal was not otherwise satisfied for the purposes of the complementary protection criterion that the risk of harm would be significant.

APPEAL GROUNDS AND SUBMISSIONS

52    The appellant’s notice of appeal contained two grounds as follows (as drafted):

1.    The Hon. Federal Circuit Court (FCC) in its decision ignored crucial legal issues which were not clearly explained in the judgment delivered on 21 Sept 2018. The Hon. court has denied the applicant’s natural justice. There is no reason to make decision in favour of the respondent.

2.    The Administrative Appeals Tribunal (the Tribunal) did not follow the procedural fairness in reviewing the refusal of the applicant’s protection visa application. It is apparent that Tribunal has not acted in accordance with the prescribed law and Act.

53    Curiously, the notice of appeal also included five grounds under the heading “Ground of Application”. Those five grounds broadly coincided with the five grounds of the review application in the Circuit Court. It is unnecessary to repeat them here.

54    Needless to say, both the grounds of appeal and the “ground of application” comprised little more than broad and unparticularised assertions of error on the part of the Circuit Court and the Tribunal. They did not provide any meaningful detail.

55    The appellant filed written submissions. Unfortunately they did not engage at all with his two grounds of appeal. Indeed, they said nothing about the decision and reasons of the primary judge. They appeared to be an amalgam of the various written submissions or particulars relied on by the appellant in the court below.

56    The appellant appeared unrepresented at the hearing and made oral submissions in support of his appeal. Again, those submissions were of limited, if any, assistance in defining or articulating his grounds of appeal. In summary, the appellant submitted that the Tribunal and the Circuit Court did not give enough attention or consideration to the problems that he would encounter if he was required to return to Bangladesh. He said that what he had told the Tribunal and the Circuit Court was true and nothing had changed. He maintained that his case was genuine and that he did not need to make anything up at a different point in time. He wanted another opportunity to go through the process.

57    The appellant was invited to identify those parts of the Circuit Court’s reasons that he contended revealed any error or errors. He declined to do so. Similarly, he was invited to identify those parts of the Tribunal’s reasons that he contended should have been found by the primary judge to have involved or manifested jurisdictional error. He again declined to do so. He said that he was not going to pinpoint any parts of those decisions which he maintained were in error.

58    None of what has just been said should be taken to be a criticism of the appellant. As has already been noted, he appeared unrepresented and the documents upon which he relied appeared to have been prepared without the benefit of legal advice or assistance. If they were prepared with the benefit of legal advice or assistance, it was not good advice or assistance.

MERITS OF THE APPEAL

59    The appellant’s grounds of appeal, and the submissions advanced in support of them, may be disposed of in short terms.

60    As for the first ground, the appellant did not identify any “crucial legal issues” which were not “explained” in the judgment of the primary judge. Nor did he advance any meaningful submissions in support of that contention.

61    Nor did the appellant even attempt to explain or support the assertion that the primary judge denied him procedural fairness. There is absolutely no evidence capable of supporting that serious allegation.

62    As for the second ground, the appellant again did not identify any basis for his allegation that the Tribunal denied him procedural fairness, or failed in any way to act in accordance with law.

63    The five “ground[s] of application” and the appellant’s written and oral submissions simply repeated the broad and general contentions and arguments concerning the Tribunal’s decision which had been advanced in the Circuit Court. Those contentions and arguments were all addressed in detail and rejected by the primary judge. None of the appellant’s contentions or arguments about the Tribunal’s exercise of jurisdiction or decision had or have any merit for the reasons given by the primary judge. His Honour’s findings and reasons were summarised earlier. It is unnecessary to rehearse those findings or reasons, particularly given the absence of any meaningful argument as to why any of the primary judge’s findings were erroneous.

64    A fair reading of the Tribunal’s Reasons reveal that there was and is no basis for any finding that it erred in any way in the exercise of its jurisdiction. It provided the appellant with a meaningful and fair hearing in which he was able to adduce evidence and advance arguments in support of his review application. The Tribunal addressed the correct visa criterion and applied the relevant law and principles in addressing that criterion. Its reasons were rational and logical and based on the evidence. There is no reason to conclude otherwise.

65    There is also absolutely no reason to conclude otherwise than that the primary judge afforded the appellant a fair hearing of his judicial review application. His Honour comprehensively addressed all of the appellant’s contentions and arguments, despite their lack of clarity and particularity. His Honour correctly applied the applicable law to the extent that it was necessary to do so to address the appellant’s arguments. There is no basis upon which to find any appealable error on the part of the primary judge.

CONCLUSION AND DISPOSITION

66    The appellant has failed to demonstrate any appealable error on the part of the primary judge. His appeal must accordingly be dismissed with costs.

Associate:

Dated:    18 April 2019