FEDERAL COURT OF AUSTRALIA

AOS18 v Minister for Immigration and Border Protection [2019] FCAFC 140

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the costs of the first respondent, to be assessed if not agreed.

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

REASONS FOR JUDGMENT

REVISED FROM THE TRANSCRIPT

THE COURT:

1    The appellant appeals a decision of the Federal Circuit Court of Australia. The appellant is a citizen of Bangladesh who arrived in Australia at Christmas Island as an unauthorised maritime arrival on 11 April 2013. He was invited to apply for either a temporary protection visa or a safe haven enterprise visa. He applied for the latter and in support of the application provided a statutory declaration in which he outlined his fears of harm as a member of the Bangladesh Nationalist Party (the BNP). He claimed that his parents and siblings were all supporters of the BNP and, additionally, that his father was a member. He also explained past harm he had suffered at the hands of the rival political party the Awami League (the AL).

2    The appellant attended an interview with a delegate of the Minister for Immigration and Border Protection and the appellant’s representative later provided a submission which addressed complementary protection, the appellant’s inability to relocate within Bangladesh and effective state protection. The appellant’s representative provided further evidence in support of the application, but the delegate refused to grant the appellant’s application.

3    The matter was then automatically referred to the Immigration Assessment Authority. The Authority advised the appellant that the matter had been referred to it and that the Authority could only consider new information in limited circumstances. The Authority, for reasons which will be discussed shortly, affirmed the delegate’s decision.

4    The appellant then filed an application in the Federal Circuit Court where he was legally represented seeking judicial review of the Authority’s decision. He filed an amended application containing a single ground of review, broken into two limbs, and a supporting affidavit annexing a copy of the transcript of the delegate’s interview. The application was heard in October 2018 and reserved until judgment was delivered in February 2019. The application for judicial review was dismissed. The appellant has filed a notice of appeal. The notice of appeal raises the same ground that was dealt with in the Federal Circuit Court. It was also filed by the appellant’s solicitor.

5    On 22 July 2019, a notice was filed in which information was given that the appointment of the lawyer had been terminated. Therefore, we have heard arguments today from the appellant in person with the assistance of an interpreter.

IN THIS COURT

6    The appellant has stressed that he wants to stay in Australia and that his life would be in danger if he returned. He indicated that his lawyer told him that his paperwork was in order and that he had a good case. He referred to his own stress and the psychological counselling that he is receiving for his stress. He handed up a submission document which reflected the same submissions and argument as raised in the Federal Circuit Court. It is necessary to say something then of the Authority’s reasoning, which was considered by the Federal Circuit Court.

The Authority’s decision

7    The Authority accepted that the appellant had been threatened by AL members on at least two occasions and physically attacked by them on at least three occasions. However, it did not accept that such threats or attacks had any Convention nexus as required by the Migration Act 1958 (Cth).

8    The Authority accepted that the local AL activist may have approached and threatened the appellant, attempted to extort money from him and hit him when it was evident that he had no money. However, the Authority found that the attack was not directed at him because he was a persuasive BNP recruiter, but rather that it was simply opportunistic. The Authority accepted that AL members may have targeted his father’s business for extortion, which was supported by country information indicating that there is low level violence associated with extortion of BNP business owners by the AL in rural areas. The Authority also accepted that the appellant, who was at the shop on this occasion, was hit and money was taken from the shop till. However, the Authority found that the attack was not politically motivated against the appellant, rather it was an attack directed at the owner of the shop, being the appellant’s father. The Authority also accepted that the appellant may have suffered an injury to his arm and leg, but when considering the perpetrators’ motivations for the attack, the Authority found that the attack was an act of violence without any political or other motivation. The Authority said (at [19]):

I do not accept that the [appellant] was attacked by the AL due to his political affiliation, his former political activities or for any other reason.

9    The Authority dealt with the complementary protection provisions (at [43]-[44]) of its reasons.

10    The Authority noted that the appellant’s claims that he will be socially ostracised as a failed asylum seeker on return to Bangladesh. The Authority said it did not accept that there was a real chance of the appellant being ostracised for this reason or that this constitutes serious harm. On the evidence, the Authority was not satisfied that being socially ostracised would result in the appellant being arbitrarily deprived of his life or would constitute the death penalty or torture, nor was the Authority satisfied that such ostracism amounted to cruel or inhuman treatment or punishment or degrading treatment or punishment. The Authority did not accept that the treatment constituted significant harm as defined in s 36(2A) of the Migration Act.

11    The Authority found that there was not a real chance that the appellant would face other forms of harm in Bangladesh as a failed returned asylum seeker and as the “real risk” test imposes the same standard as the “real chance” test, the Authority was not satisfied that there was a real risk of the appellant suffering such harm on the return to Bangladesh.

12    The Authority said (at [44]):

I have otherwise found that the [appellant] does not face a real chance of any harm on return to Bangladesh due to his former political involvement, his previous or future support of the BNP, his father’s BNP support, as a Sunni Muslim or due to his illegal departure …

Grounds of review

13    The first ground in this Court, ground 1(a), was that the Federal Circuit Court erred in failing to find that the Authority erred by failing to consider an integer of the appellant’s claims for protection by not considering whether the physical harm, threats and extortion suffered by the appellant in Bangladesh for non-Convention reasons gave rise to complementary protection obligations under s 36(2)(aa) of the Migration Act. Ground 1(b), being the second limb of the first ground, was that the Federal Circuit Court erred in failing to find that the Authority erred by requiring the appellant to show a Convention nexus to the risk of significant harm he faced in order to fall within the complementary criteria under s 36(2)(aa).

14    The primary judge carefully considered the case law and particularly the decision of CDY15 v Minister for Immigration and Border Protection [2018] FCA 175, a decision of Derrington J. The primary judge followed that decision and concluded (at [67]-[68]) of his Honour’s reasons that once the Authority had determined that the harm to the appellant in the past was not in any way politically motivated but random in nature, the foundation of the appellant’s claims as a whole necessarily fell away.

15    In those circumstances, there was no jurisdictional error in the Authority applying its earlier reasons and findings, rejecting the evidence from the appellant as to the motivation for the attacks for the purposes of determining whether or not he would face a real risk of significant harm if returned to Bangladesh for the purposes of s 36(2)(aa) of the Migration Act.

16    We consider that the primary judge was correct in arriving at that conclusion and for the reasons his Honour gave. The factual basis for the appellant’s Convention and complementary protection claims was the same, namely, harm on the basis of his political affiliation. In those circumstances, the basis of the Authority’s rejection of the Convention claims could be relied upon for the rejection of the appellant’s claim for complementary protection. The Authority made specific reference to complementary protection in its Convention findings which clearly captured any complementary claims that rely, as they do, on the same factual context for proof of harm in the future. For those reasons ground 1(a) of the appeal must fail and ground 1(b) must fail with it.

17    We see no reason to doubt the approach of the primary judge in the circumstances of this case.

18    It may be that a complementary protection claim could be based upon prevailing circumstances in a country of a kind that would expose a particular returnee to a risk of harm, even though there is no identified reason why the applicant for a protection visa might be targeted. Certain types of harm might be so prevalent or likely that there is an identifiable risk for any person or for large parts of a population, such as children, unmarried women or the elderly, without any evident motivation directed towards a particular group. However, such a claim needs to be articulated as a basis for a visa application based on complementary protection and material advanced to support the claim before the failure to consider such a claim could be said to amount to jurisdictional error. We note the observations of Derrington J in CDY15 (at [24]):

That is not to say that the identification of motivation for the infliction of past harm is a necessary requirement. It is possible to contemplate circumstances where the motivation for prior incidents is not known but the frequency of the infliction of harm or the circumstances are such that it is possible to reach the conclusion that there exists a real risk of the applicant suffering significant harm in the future. That said, such circumstances (outside of war zones and the like) will be unusual and it is likely that they will only occur where they generate an assumed or implicit motivation for the infliction of past harm which can be seen to continue at the time of the making of the decision. Nevertheless, in general, as a matter of logic it is the motivation behind past inflictions of harm on an applicant which make that factor relevant to a consideration of whether similar harm is likely to be inflicted in the future. In circumstances where the reason or motivation for the past infliction of harm is not known, the fact that the applicant has sustained that harm, of itself, must necessarily be of little significance in deciding whether, in the future the applicant might be at risk of similar harm. Put another way, it must be that, in all but the most exceptional cases, the existence of prior acts of harm for which no reason or motivation is known cannot lead to the conclusion that the victim of those acts of violence faces any risk of similar harm in the future.

19    However, whether it is correct to view such circumstances as unusual outside of war zones or anarchic places, and whether in general it is motivations behind past inflictions of harm which make prior incidents relevant to a consideration as to whether similar harm is likely to be inflicted in the future, are matters that do not and have not arisen for consideration in the present case.

20    The appeal must be dismissed with costs.

Associate:

Dated:    20 August 2019