FEDERAL COURT OF AUSTRALIA

AJT16 v Minister for Immigration and Border Protection [2017] FCA 764

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant pay the first respondent’s costs, as agreed or assessed.

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

REASONS FOR JUDGMENT

O’CALLAGHAN J:

1    This is an application for leave to appeal from a decision of the Federal Circuit Court of Australia (FCCA) dismissing the applicant’s judicial review application under r 44.12 of the Federal Circuit Court Rules 2001 (Cth). A decision under r 44.12 is interlocutory, so leave is required to appeal to this Court: Federal Court of Australia Act 1976 (Cth), s 24(1A). The applicant also seeks an extension of time within which to bring the application for leave to appeal. However, as the Minister rightly conceded, no extension of time is necessary, as the application for leave to appeal was in fact filed within the time prescribed by r 35.13 of the Federal Court Rules 2011 (Cth) (the Rules).

Background

2    The applicant is a citizen of Bangladesh who applied for a protection visa on 20 June 2013. On 27 August 2014, a delegate of the respondent refused that application. On 8 February 2016, the Administrative Appeals Tribunal (the Tribunal) affirmed the delegate’s decision and, on 26 September 2016, the FCCA dismissed the applicant’s application for judicial review.

3    The applicant claims to be from a family with a long history of supporting the Bangladesh Nationalist Party (BNP) and a long history of enmity with supporters of the Awami League (the rival and ruling party).

4    The applicant claims that after his eldest brother was defeated by the Awami League in his bid to become a member of the local council, his brother became the target of harassment and assault by the Awami League. On one occasion, supporters of the Awami League kidnapped his brother and took him to a field where he was physically assault with a large knife. On another occasion, his brother was imprisoned on false charges by the Chairman of the Awami League, but he was later released with the assistance of the BNP. Shortly after his release, his brother fled and has not been heard from since.

5    After his eldest brother’s disappearance, the applicant became politically active and remained active after the Awami League came to power in Bangladesh in 2008. From time to time, he was verbally abused by members of the Awami League. Then, in 2013, he became involved in a dispute with supporters of the Awami League while reading a BNP-sponsored newspaper. The applicant was assaulted and the Awami League supporters threatened to harm him as they had his eldest brother. The applicant fled the scene of the incident to his sister’s house in a neighbouring village where he stayed for a few days before leaving Bangladesh. After that incident, Awami League supporters began searching for the applicant and attended his house to question his father. The applicant has spoken with his family since arriving in Australia and has been advised that Awami League supporters are still searching for him.

6    The applicant claims to fear being assaulted or killed if he returns to Bangladesh and that the authorities would be unable or unwilling to protect him.

The Tribunal proceeding

7    The Tribunal considered whether the applicant met the criteria in s 36(2)(a) of the Migration Act 1958 (Cth) (the Act), on the basis of being a refugee, or the criteria in s 36(2)(aa), on the basis of there being substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk that he would suffer significant harm.

8    The Tribunal relevantly accepted the applicant’s evidence with respect to his eldest brother’s assault, with respect to the applicant’s involvement with the BNP and with respect to the 2013 incident in which the applicant was assaulted: Tribunal’s reasons at [32]-[39]. The Tribunal further held that “there is a possibility [the applicant] would continue to be of adverse interests to those Awami League supporters involved in the 2013 attack should he return to his village in Bangladesh”: Tribunal’s reasons at [39].

9    However, the Tribunal also observed that the applicant’s involvement with the BNP was only ever low-level and that the applicant told the Tribunal that he did not intend to resume his involvement in politics if he were to return to Bangladesh: Tribunal’s reasons at [39], [46]. On the basis of the applicant’s evidence and country information concerning the risks faced by high-profile political activists, the Tribunal considered that the applicant could reasonably relocate to another location within Bangladesh in order avoid the feared harm: Tribunal’s reasons at [47]-[52]. In this respect, the Tribunal considered the applicant’s stated intention not to become involved in politics; the applicant’s low-political profile; and that the applicant is “a young, single man with no dependents, who has reportedly obtained work experience in a restaurant environment since living in Australia and … [has] managed to travel to Australia and establish himself here in a different environment where he does not speak the language and has no familial support”: Tribunal’s reasons at [50].

10    On the basis of those factual findings, the Tribunal was not satisfied that the applicant met the criteria under s 36(2)(a) or (aa) of the Act.

The FCCA proceeding

11    The applicant sought judicial review of the Tribunal’s decision in the FCCA. The applicant’s grounds of review before the FCCA were as follow:

The applicant claims to fear serious harm in Bangladesh on the Conventional grounds of his actual or imputed political opinion in favour of the Bangladesh Nationalist Party.

Administrative Appeals Tribunal made a jurisdictional error when it failed to use real test of persecution and harm according to the Migration Act. In assessing the application , the AAT failed to assess all aspects of real chance the applicant will suffer serious harm on return to Bangladesh for a convention reason.

Particulars:

The Tribunal raised several irrelevant issues to discredit the facts that the applicant’s brother was kidnapped in 1999 due to be supporter of BNP party. He was released because of the … influence of BNP party after forming a caretaker government in 2001.

In 2013 he was attacked by Awami League Supporters while he was sitting in a public area reading news paper. The Awami League supporters continuously folioed and threatened him to kill .. The Tribunal totally ignored the oral and written evidence given by the applicant in support of his claims.

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.

Particulars:

The RRT ignored relevant consideration related with complementary Protection set out ins 36(2) (aa).

The harm or the mistreatment feared by the applicant on his return is for reason of one or more of five grounds of recognized in the Refugee Convention.

Applicant claims that his fear of harm or mistreatment is for the Convention reasons of political opinion and membership of the particular social group BNP.

Applicant’s fear of harm is well-founded and that there is a real chance that he will suffer persecution if he returned to Bangladesh.

(Errors in original.)

12    The primary judge observed that the applicant’s oral submissions before the FCCA were directed to the merits of the Tribunal’s decision, that the Tribunal had taken a more generous view of the applicant’s claims than the delegate had and that the Tribunal’s decision had turned on its relocation findings. Rejecting the applicant’s challenge to the Tribunal’s decision, the primary judge relevantly held that:

(1)    It was clear from the Tribunal’s reasons that it had in mind the correct legal tests to be applied in assessing whether the applicant was owed protection pursuant to either the refugee or complementary protection grounds: AJT16 v Minister for Immigration and Border Protection & Anor [2016] FCCA 2481 at [19], referring to the Tribunal’s reasons at [6], [7], [9], [52]-[55].

(2)    Although the applicant had not particularised the “aspects of real chance” that he claimed the Tribunal failed to assess, “a fair reading of the Tribunal’s reasons show that the Tribunal properly applied the real chance test to the applicant’s claims…”: AJT16 v Minister for Immigration and Border Protection & Anor [2016] FCCA 2481 at [20], referring to the Tribunal’s reasons at [31], [33]-[34], [36], [39], [46]-[47], [49], [52] and citing MZAAD v Minister for Immigration and Border Protection [2015] FCA 1031 at [48].

(3)    Although the applicant had not particularised the “several irrelevant issues” that he claimed were raised to discredit his evidence that his brother had been kidnapped, that claim was “arid if not misconceived” in light of the Tribunal’s acceptance of the applicant’s evidence on this issue: AJT16 v Minister for Immigration and Border Protection & Anor [2016] FCCA 2481 at [21]-[22].

(4)    Similarly, the applicant’s claim that the Tribunal totally ignored the oral and written evidence provided by the applicant in support of his claims to have been attacked in 2013 and threatened by Awami League supporters was “unparticularised, incorrect on the face of the Tribunal’s reasons, and lack[ed] merit given that the Tribunal accepted these claims”: AJT16 v Minister for Immigration and Border Protection & Anor [2016] FCCA 2481 at [23], referring to the Tribunal’s reasons at [18]-[19], [25]-[26], [31], [33]-[34], [36], [39].

(5)    Although the applicant had not particularised the “related consideration” that he claimed the Tribunal “ignored”, the Tribunal’s reasons revealed that the Tribunal did identify the correct test for complementary protection (namely, whether there were “substantial grounds” for believing that there was a “real risk” that the applicant would suffer significant harm as a “necessary and foreseeable consequence” of being removed from Australia to Bangladesh) and made findings accordingly: AJT16 v Minister for Immigration and Border Protection & Anor [2016] FCCA 2481 at [24], referring to the Tribunal’s reasons at [7], [9] and [54].

(6)    The applicant’s claim that the Tribunal “did not follow Rules of Real Risk Test” was misconceived. The Tribunal separately assessed the applicant’s claims under s 36(2)(a) and (aa), albeit based on the same factual findings: AJT16 v Minister for Immigration and Border Protection & Anor [2016] FCCA 2481 at [25], referring to the Tribunal’s reasons at [54] and citing Minister for Immigration v SZQRB (2013) 210 FCR 505 at [246] per Lander and Gordon JJ, [297] per Besanko and Jagot JJ and [342] per Flick J.

(7)    The remaining grounds advanced by the applicant were impermissibly directed to the merits of the Tribunal’s decision and beyond the scope of the primary judge’s review: AJT16 v Minister for Immigration and Border Protection & Anor [2016] FCCA 2481 at [26].

The proceeding in this Court

13    The application for leave to appeal to this Court raises three proposed grounds, namely, that the Tribunal: “failed to use the real chance test to assess the applicant’s case”; “exceeded its jurisdiction or failed to exercise its jurisdiction”; and “did not consider the appellant’s circumstances”. None of those grounds is particularised to any degree.

14    The grounds stated in the application for leave to appeal are subsumed by four more expansive ground stated in the draft notice of appeal annexed to the applicant’s affidavit dated 11 October 2016. Those grounds are that:

1.    [The primary judge] failed to hold that Administrative Appeal Tribunal committed jurisdictional error when it failed to use the real Chance test of persecution and harm to assess the applicant’s case for Complementary Protection. The Tribunal failed to adopt the View that “real risk” in complementary protection context is based on the term “Well-founded fear”. Appellant claims it should be interpreted consistently with this jurisprudence. The Tribunal did not consider appellant’s circumstances in pursuant of Complementary Protection Clauses under s 36(2)(aa).

2.    The [primary judge] failed to hold that the Tribunal exceeded its jurisdiction or constructively failed to exercise its jurisdiction .. Raised several irrellavant issues and ignored relevant issues related to his claim.

3.    The [primary judge] failed to hold that the Tribunal made inconsistent assertions on the credibility testimony. Appellant claims that initial statement (at first Departmental interview) made by the appellant should not be taken as conclusive claims. The Courts have found as an error of law. The appellant claims the he was denied procedural fairness and natural justice when his evidence was discarded without any investigation.

4.    [The primary judge] failed to hold that the Tribunal did not consider appeallant’s circumstances in pursuant of Complementary Protection Clauses under s 36(2) (aa).

(Errors in original.)

15    The applicant’s written submissions make a number of further claims. The further claims are largely directed to the merits of the Tribunal’s decision, including that the Tribunal “mistook or misconstrued the facts” with respect to, relevantly, the applicant’s political involvement, and the harm that he and his eldest brother faced in Bangladesh. To the extent that the applicant now seeks to challenge the Tribunal’s findings in this respect, the challenge is misconceived, given, as the primary judge observed, that the Tribunal accepted the applicant’s evidence on these issues. The written submissions also claim that the Tribunal had a “closed mind” when assessing the harm the applicant faced as a “failed asylum seeker”. On the material before this Court, it does not appear that the applicant has ever made a properly articulated claim, before the Tribunal or the primary judge, to the effect that he would suffer serious harm or persecution were he returned to Bangladesh as a failed asylum seeker. Accordingly, this claim is misconceived and irrelevant. Finally, the written submission claim that the Tribunal failed to apply the correct test for s 36(2)(aa).

16    Following the hearing of this application on 9 March 2017, the Court directed the parties to file a brief outline addressing the question of whether the Tribunal’s relocating findings were affected by illogicality or unreasonableness or whether the findings were otherwise open to it. Both parties did so.

Consideration

17    In order for the applicant to obtain leave to appeal, I must be satisfied that in all the circumstances, the decision of the FCCA is attended by sufficient doubt to warrant its reconsideration on appeal and, assuming that the decision is wrong, that substantial injustice would result if leave were refused: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-9.

18    I will deal with each of the applicant’s proposed grounds in turn.

The applicant’s proposed grounds of appeal

19    First, the applicant’s claim that the Tribunal misapplied the test for s 36(2)(aa) lacks merit, for the reasons articulated by the primary judge: see AJT16 v Minister for Immigration and Border Protection & Anor [2016] FCCA 2481 at [19] and the paragraphs of the Tribunal’s reasons there cited. The Tribunal correctly identified and applied the relevant complementary protection criteria.

20    Secondly, the applicant’s claim that the Tribunal made a jurisdictional error when it raised irrelevant issues or ignored relevant issues is not particularised. The first respondent submitted that by this ground the applicant appears to claim that the Tribunal raised irrelevant issues when assessing the consistency of the applicant’s evidence before the Tribunal with the account he had given to the delegate. In respect of this claim, the first respondent submits that although the Tribunal noted “minor inconsistencies” in the applicant’s accounts to the delegate and the Tribunal, the Tribunal otherwise accepted the applicant’s claims in this respect: referring to the Tribunal’s reasons at [31]. The first respondent also submitted that the applicant appears to claim that the Tribunal ignored the following relevant issues: “all the information available to the Department through the media and other sources” (applicant’s written submissions at p 3); and “how the applicant came to Australia by boat taking high risk of life” (applicant’s written submissions at p 4). In respect of this claim, the first respondent submitted that the Tribunal was not obliged to make further inquiries to obtain further country information and that “how the applicant came to Australia by boat taking high risk of life” was not a relevant consideration within the meaning of Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24. I accept each of those submissions.

21    Thirdly, the applicant claims that he was denied procedural fairness by the way in which the Tribunal arrived at its credibility findings and tested the consistency of the applicant’s evidence. As noted above, while the Tribunal noted inconsistencies in the applicant’s evidence, it largely accepted the applicant’s claims.

22    The applicant had also claimed before the Tribunal to have two other brothers living in Malaysia, one who had relocated for work and the other who had relocated for political reasons. The Tribunal put to the applicant that he had not told the delegate that he had a second brother who was politically active, but was not satisfied with the applicant’s response (that his second brother’s political problems were comparatively recent). Accordingly, the Tribunal was not satisfied that either of the applicant’s brothers living in Malaysia was there for political reasons. It was open to the Tribunal to reject this evidence. No error is revealed by the Tribunal’s factual findings in this respect and there is otherwise no material before the Court to suggest that the Tribunal failed to comply with Div 4 of Part 7 of the Act.

23    Fourthly, I accept the first respondent’s submission that the applicant’s claim that the Tribunal failed to consider his circumstances against the complementary protection criteria is belied by the Tribunal’s findings at [54] of its reasons. It was open to the Tribunal to rely on its factual findings with respect to the applicant’s s 36(2)(a) claim when assessing the applicant’s claim against the s 36(2)(aa) criteria.

The Tribunal’s relocation findings

24    I am grateful to the parties for filing further material with respect to the Tribunal’s relocation findings.

25    The applicant submitted that the Tribunal’s relocation findings were illogical or irrational because: he is unable to depend on any close social ties outside his home region, making it difficult for him to re-establish himself in a community; and he does not possess a high level of education or significant experience, making it difficult for him to obtain employment in Bangladesh.

26    The first respondent submitted that no error is disclosed by the Tribunal’s relocation findings on the basis of what was said in Randhawa v Minister for Immigration, Local and Government and Ethnic Affairs (1994) 52 FCR 437 at 440-1 per Black CJ, SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 and SZFDV v Minister for Immigration and Citizenship (2007) 233 CLR 51.

27    The first respondent also submitted that the applicant should be denied relief because the Tribunal’s findings on relocation were an alternative basis upon which its decision rested. The first respondent’s written submission relevantly stated:

…the Court should not grant the relief sought by the applicant because the Tribunal’s findings on relocation were ultimately an alternative basis on which its decision rested. Critically, the Tribunal noted that “independent sources maintain that it is persons with a high political profile, such as leaders and prominent activists, who are at greater risk of harm” … The Tribunal then went on to quote from a Department of Foreign Affairs and Trade Country Report which stated that mere “supporters or members of political parties in Bangladesh are not at risk of being arrested or living in fear violence on a day-to-day basis due to their political affiliations.” … These findings were preceded by the observation that the “applicant’s level of political involvement was quite minimal before he left Bangladesh and he was not engaged in any political activity since coming to Australia” … This was followed, at [50] of the Tribunal’s reasons for decision, with the statement that the Tribunal “had also considered whether it would be reasonable for the applicant to relocate to a different location in Bangladesh”.

28    I do not accept that the Tribunal’s relocation findings were an alternative basis upon which its decision rested. When considering the country information the Tribunal relevantly stated:

49.     In the event the applicant did resume any low level support for the BNP on return to another location in Bangladesh, the reputable sources quoted above support this, in and of itself, will not cause the applicant to be adversely treated by political opponents or the Bangladeshi authorities. The Tribunal accepts the political environment in Bangladesh is volatile and that there are reported incidences of political motivated arrests, deaths and injuries, but does not accept the applicant has a profile such that there is a real chance he would be seriously harmed on return to a different location in Bangladesh for this reason. (Emphasis added.)

50.     The Tribunal has also considered whether it would be reasonable for the applicant to relocate to a different location in Bangladesh and discussed with the applicant at hearing a range of relevant considerations. For instance, the Tribunal pointed out that the applicant is a young, single man with no dependents, who has reportedly obtained work experience in a restaurant environment since living in Australia and that he managed to travel to Australia and establish himself here in a different environment where he does not speak the language and has no familial support. The Tribunal therefore indicated that it appeared he could reasonably relocate within Bangladesh.

29    In my view, [49] of the Tribunal’s reasons is directed to whether relocation would obviate the persecution feared by the applicant, while [50] is directed to whether that relocation would be reasonable.

30    However, I accept the first respondent’s primary submission that the Tribunal’s relocation findings at [46]-[52] were consistent with what was said in Randhawa v Minister for Immigration, Local and Government and Ethnic Affairs (1994) 52 FCR 437 at 440-441 per Black CJ, SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 and SZFDV v Minister for Immigration and Citizenship (2007) 233 CLR 51.

31    The applicant claims in this application that relocation is not reasonable in the circumstances because the applicant lacks social ties outside his home region and because it will be difficult for him to obtain employment. I accept the first respondent’s submission that these factors do not appear to have been put to the Tribunal. Rather, when asked about relocation by the Tribunal, the applicant’s only objection was that he did not think that he could be secure anywhere in Bangladesh because of the country’s “polluted” political system.

32    Nevertheless, it is clear from the Tribunal’s reasons that the Tribunal had regard to a range of factors in reaching its findings on relocation, including:

(1)    the applicant’s family circumstances and political history (Tribunal’s reasons at [12]-[26], [28]-[31], [50]);

(2)    the applicant’s own political involvement and claims to protection (Tribunal’s reasons at [12]-[26], [32]-[40], [46]-[51]);

(3)    whether the applicant would wish to involve himself in politics if he returned to Bangladesh (Tribunal’s reasons at [34]-[35], [46]);

(4)    country information regarding the risk of harm to persons with a political profile similar to that of the applicant (Tribunal’s reasons at [47]-[48]);

(5)    the applicant’s ability to establish himself in a different environment without family support (Tribunal’s reasons at [50]); and

(6)    the applicant’s activity and work history in Australia: Tribunal’s reasons at [35], [46], [50]).

33    I am also satisfied that those findings were not illogical, irrational or unreasonable in the sense discussed by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [121]-[136] and, more recently, by the Full Court in Minister for Immigration and Border Protection v SZVFW [2017] FCAFC 33 at [37]-[39]: see also Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1; and Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437.

34    As Crennan and Bell JJ observed in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [131]:

…the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.

Conclusion

35    For the reasons given above, the application will be dismissed. The applicant should pay the first respondent’s costs, as agreed or assessed.

Associate:

Dated:    7 July 2017