FEDERAL COURT OF AUSTRALIA

DCH16 v Minister for Immigration and Border Protection [2017] FCA 932

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

BARKER J:

1    This is an appeal from a decision of the Federal Circuit Court of Australia dismissing an application for judicial review of a decision of the Immigration Assessment Authority affirming a decision of a delegate of the Minister for Immigration and Border Protection not to grant the appellant a Safe Haven Enterprise (subclass 790) visa (SHEV).

2    The appellant, who was born on 9 February 1988, is a male citizen of Bangladesh and of Bengali ethnicity. He arrived in Australia on 30 January 2013 without a visa and was taken into immigration detention.

3    In February 2014, there was an inadvertent disclosure by the Department of Immigration and Border Protection of personal information of detainees, including the appellant (data breach). The Secretary of the Department, by letter dated 12 March 2014, informed the appellant that:

The department will assess any implications for you personally as part of its normal processes. You may also raise any concerns you have during those processes.

4    By letter to the Minister dated 18 August 2014, the appellant and other Bangladeshi asylum seekers stated they were victims of the data breach and that their lives were at risk in their country. The Minister subsequently exercised his discretion pursuant to s 46A of the Migration Act 1958 (Cth) to allow the appellant to lodge an application for a protection visa.

5    The appellant applied for a SHEV on 20 April 2016. In his application, the appellant claimed he left Bangladesh because he was being harassed by various members of the Awami League Party and he feared for his safety. He stated there were three separate issues which, together, were the reasons he fled Bangladesh.

6    The appellant claimed in or about 2006 or 2007, his family received threats from a powerful and influential local Awami League member named “M”, who threatened to kill them if they did not give him their land.

7    He claimed that in early 2012, locals from his village told him they saw M’s people ransacking his home and abusing his father. The appellant said when he confronted M and his men after the incident, he was beaten by a bamboo stick and a son of one of M’s men attempted to stop the attack. Shortly after, the appellant said, he lost consciousness and was hospitalised for a few days. The appellant attempted to report the incident, but the police refused to lodge a case against M because he was an influential member of the Awami League.

8    A few days after the attack, the appellant said he was informed by people in his village that the son of one of M’s men had died and M blamed the appellant for his death and would seek revenge. The appellant claimed he fled to Dhaka to escape harm, but M and his men continued to make threats against his life to his family.

9    The appellant said approximately 10 months later, a member of the Awami League in Dhaka, “K”, visited him at work and demanded that he join the Awami League or pay TK200,000. K threatened to harm him if he did not do either. The appellant suspected K came to know about him because he attended a procession in support of Jamat-e Ismail (JI), an opposition party, in Dhaka. A few days later, the appellant said, K and his men returned demanding money and when the appellant said he could not pay him, they beat him with hockey sticks. The appellant said he immediately quit his job and moved to a friend’s house.

10    Approximately a week after that, the appellant said, he attended a college function in Raipur and a fight broke out between Awami League activists and his group. One of the Awami activists broke his own leg and it later became known that his uncle, who was a Member of Parliament from the Awami League, sought revenge on those involved in the fight with his nephew.

11    The appellant additionally claimed that after he came to Australia, his father informed him that M accused him of murdering a boy from another village. However, he says he has received confirmation that there is no current case against him.

12    The appellant claimed to fear serious harm or death from members of the Awami League Party on the basis that they have threatened and assaulted him in the past. He further claimed that M would harm him on the belief that he was responsible for the death of his friend’s son; that K and his men would harm him due to his perceived membership of the JI and his inability to pay money they attempted to extort from him; and that the Member of Parliament would seek revenge against him as a result of his involvement in the attack against his nephew. The appellant adds that he will not receive protection from the authorities as they are fearful of taking action against influential Awami League members.

13    The appellant’s application for a protection visa was refused by a delegate of the Minister on 15 July 2016. As the delegate’s decision was a fast track reviewable decision within the meaning of s 473BB of the Act, the decision was referred to the Authority pursuant to s 473CA of the Act. On 9 September 2016, the Authority affirmed the delegate’s decision not to grant the appellant a SHEV.

14    The appellant applied to the Federal Circuit Court for judicial review of the Tribunal’s decision. On 30 March 2017, the primary judge held that the Tribunal’s decision was not affected by jurisdictional error and dismissed the appellant’s application. See DCH16 v Minister for Immigration & Anor [2017] FCCA 294.

15    The appellant now appeals from the decision of the Federal Circuit Court by a notice of appeal filed 19 April 2017.

Delegate’s decision

16    The delegate noted that the appellant was screened out from the assessment process of Australia’s protection obligations on 2 April 2013 on the basis of the information he provided at the entry interview, which included that he came to Australia because his family was poor and there were no other reasons for leaving Bangladesh. The appellant provided further information to the Department on 6 May 2013 so that his case could be reassessed.

17    At his protection visa interview, the appellant was invited to comment on the inconsistencies in his SHEV application, his entry interview and the additional information he provided to the Department on 6 May 2013. In response, the appellant stated that he was advised by the people smuggler not to mention “political issues”. The appellant submitted a supplementary statement on 18 May 2016, which clarified that the information he provided in his protection visa interview was a true account of the events in Bangladesh, and he provided incorrect information to the Department because he was being guided by the smuggler and other Bangladeshis in the camp, and he was scared of returning to Pakistan.

18    The appellant was also invited to comment on the data breach, to which he responded that he was unable to go to any other country as any country could access the information released during the data breach.

19    In assessing whether or not Australia had protection obligations to the appellant, the delegate took into account the appellant’s responses at his protection visa interview and the information provided in his supplementary statement and submissions.

20    In relation to the appellant’s claims that M made threats against his family if they did not give him their land, the delegate noted the appellant did not raise this claim at his protection visa interview, and further, there was no information to indicate that the land dispute continued after 2006 or that incidents that allegedly occurred in 2012 were linked to the land dispute. The delegate therefore did not accept that the appellant or any members of his family were being threatened and targeted for harm by M or any other local Awami League members on account of any land dispute.

21    As to the appellant’s claims that in early 2012 his father was assaulted by M, his family house was ransacked by M’s men, and he subsequently confronted M and was beaten unconscious, the delegate noted these claims were not raised in his entry interview. The delegate also found the appellant’s claims lacked credibility and persuasiveness, noting numerous inconsistencies in his written statement, protection visa interview and post-interview submissions.

22    Consequently, the delegate did not accept that M ransacked his family house or attacked his father in 2012 and rejected his claims that he subsequently confronted M, was beaten unconscious and that M sought revenge against him for the death of his friend’s son. The delegate ultimately rejected the claim that he fled Bangladesh by reason of a subjective fear of M due to M’s threats on his life.

23    As to the appellant’s claims that he was at risk of persecution owing to his political opinion in opposition of the Awami League on the basis that he participated in a pro JI procession in Dhaka in 2012, the delegate did not accept that the appellant had a pro-JI or anti-Awami League profile. In reaching this conclusion, the delegate stated that, at the protection visa interview, the appellant was unable to answer simple questions about the JI party or his claimed participation in the JI procession in Dhaka with reasonable detail. The delegate said his responses regarding his involvement with the JI were vague, evasive, unconvincing and lacked details. Further, the appellant made no claims of being a JI member or supporter in the information he provided to the Department on 6 May 2016.

24    As the delegate rejected the appellant’s claim that he had a pro-JI and/or anti-Awami League political profile, the delegate also did not accept that the appellant was being targeted and extorted by K and his men on account of that claim. The delegate further noted there was nothing to indicate that the appellant was being targeted by K and his men for any other reasons, and that this claim had not been raised by the appellant in either his entry interview or his additional submission to the Department on 6 May 2016. Consequently, the delegate considered the appellant had fabricated the claim that he was being threatened and extorted by K and his men to enhance his refugee protection claims, and therefore did not accept that the appellant departed Bangladesh on that basis.

25    In regard to the appellant’s claims a Member of Parliament threatened to seek revenge on those involved in a fight between his group of friends and Awami League activists, the delegate stated the appellant’s oral testimony was vague, unconvincing and lacked detail. Further, the delegate said, there were inconsistencies in his responses at the protection visa interview, the claims in his written statement and the additional information provided to the Department on 6 May 2013. This claim was also not raised during his entry interview.

26    The delegate ultimately formed the view that the appellant’s claims were not credible and did not accept that the appellant had been truthful about the reasons he left Bangladesh. The delegate concluded the appellant’s protection claims had been fabricated in their entirety.

27    As to the data breach, the delegate accepted that the Department inadvertently published on its website a document outlining personal details of detainees, including the appellant, but noted the document did not disclose the reasons for detention or any claims for protection. The delegate was satisfied that, as a consequence of the data breach, the Bangladesh authorities have learned of the appellant’s detention in Australia and may have deduced that the appellant travelled to Australia for the purpose of seeking asylum.

28    It was submitted on behalf of the appellant that the data breach raised the appellant’s sur place claim as it increased the risk of harm to which the appellant would be subjected should he return to Bangladesh. The delegate was satisfied that the appellant feared persecution for the reason of imputed political opinion as a result of the data breach, his interview with Bangladesh officials and his illegal departure from Bangladesh. The delegate was further satisfied that the reason of political opinion was the essential and significant reason for the feared persecution, and that the persecution feared, being a threat to liberty, constituted serious harm as defined under s 5J(5) of the Act.

29    As to whether the fear of persecution was well-founded, the delegate noted the appellant had no adverse profile or any profile of interest to the Bangladeshi authorities prior to his departure from Bangladesh. The delegate stated there was no support in the country information that returnees who departed from Bangladesh illegally, or failed asylum seekers, face any harm or mistreatment on their return to Bangladesh. The delegate considered these factors, together with the limited amount of information released in the data breach and the difficulty in accessing and obtaining the information, and concluded she was not satisfied the appellant faced a real chance of serious harm as a failed asylum seeker or on account of his illegal departure from Bangladesh.

30    For these reasons, the delegate was not satisfied there was a real chance of persecution for one or more of the reasons mentioned in s 5J(1)(a) of the Act and concluded that the appellant was not a refugee as defined in s 5H of the Act.

31    The delegate was therefore not satisfied the appellant was a person in respect of whom Australia had protection obligations and found that he did not meet the criteria for the grant of a protection visa under s 36(2)(a) of the Act.

32    Additionally, the delegate noted that on 6 May 2013, the appellant declared offshore criminality to the Department and subsequently retracted his claim in a letter to the Minister on 18 August 2014. The delegate considered the document provided by the applicant as evidence of no criminal record in Bangladesh and found that there was no evidence that the appellant had committed any acts that may exclude him from being found to be a refugee under s 5H(2) of the Act. The delegate was satisfied the exclusion clauses in s 5H(2)(a)-(c) did not apply to the appellant.

33    The delegate was not satisfied there were substantial grounds for believing there was a real risk the appellant would suffer significant harm as a necessary and foreseeable consequence of being removed to Bangladesh. Consequently, the delegate found the appellant did not meet the criteria for the grant of a protection visa under s 36(2)(aa) of the Act.

Authority’s decision

34    The Authority had regard to the material referred by the Secretary of the Department under s 473CB of the Act and noted that it had obtained or received no further information.

35    The Authority summarised the appellant’s claims at [5] of its decision.

36    Regarding the appellant’s claimed fear of harm from M, the Authority found the appellant’s account of how he was able to locate M following the assault on his father, unconvincing and vague. The Authority also noted the appellant previously provided a different account of the events of 2012 to the Department. The appellant has since stated that this account of events was not accurate and was only provided to prevent him from being removed from Australia.

37    The Authority did not accept that the appellant sought out M or that any of the events claimed by him to have occurred after the incident occurred at all. The Authority noted the appellant first raised the claim in his SHEV application and when questioned about it at length during the SHEV interview, was unable to provide specific details of the incident. The Authority did not accept that M ever threatened the appellant, the appellant was involved in a fight with M and his men, or that the son of one of M’s men was killed.

38    The appellant had also claimed that after arriving in Australia, his father advised him that M brought a case against him, accusing him of killing someone else. The Authority said he has since stated that he knows there is no case against him as no further action or investigations have taken place. On the appellant’s own evidence, the Authority was not satisfied M had taken out a case against him.

39    The Authority was not satisfied the appellant or his family were ever harmed by M or that M had an active interest in the appellant on the basis of the case which was brought against him. The Authority was therefore not satisfied there was a real chance the appellant would be harmed by M upon return to Bangladesh, now or in the reasonably foreseeable future.

40    The Authority stated it shared the delegate’s concerns in respect of the credibility of his claimed fear of harm by K because of his involvement with the JI in Dhaka. The Authority was willing to accept that the appellant had some exposure to the JI while residing in Bangladesh, but did not accept he was a member or supporter of the JI. In particular, the Authority was not satisfied the appellant was able to recount sufficient detail in respect to the JI or his claimed activities with the JI.

41    The Authority was also willing to accept the appellant was approached by an individual called K, who requested that he join the Awami League or pay a sum of money. The Authority then said the appellant did not join the Awami League or pay the money demanded by K, and received no further contact or threats thereafter from K. On this basis, the delegate was not satisfied K had an adverse interest in the appellant and there was a real chance the appellant would face any harm, now or in the reasonably foreseeable future.

42    As to the appellant’s claims regarding the fight between the appellant’s friends and Awami League members at a college function, the Authority said the appellant was asked to provide further details in respect to the incident at his SHEV interview, but stated he could not remember. The Authority also considered the inconsistencies in his account of the incident in May 2013 and in his SHEV application and subsequent interview and found the inconsistencies had an adverse effect on the appellant’s credibility. The Authority also found it adverse that he was able to reside in Bangladesh subsequent to this claimed incident with no apparent harm from the Member of Parliament or any other Awami League member. Consequently, the Authority was not satisfied there was a real chance he would face harm now or in the reasonably foreseeable future on this basis.

43    The Authority was also not satisfied the appellant had a real or perceived anti-Awami League political opinion and found there was no real chance he would face harm on this basis, now or in the reasonably foreseeable future.

44    The Authority additionally accepted the information published during the data breach would have identified the appellant as someone who arrived in Australia illegally and is in immigration detention. However, the Authority noted the information published did not contain the appellant’s protection claims and the appellant was not of adverse interest to the Bangladeshi authorities. The Authority ultimately found the appellant would not be adversely treated by the authorities on the basis of departing illegally or seeking asylum in Australia, and was not satisfied that there was a real chance the appellant would face any harm from the Bangladeshi authorities on the basis of the data breach.

45    For these reasons, the Authority found that the appellant did not meet the definition of a refugee in s 5H(1) of the Act.

46    The Authority was further not satisfied there were substantial grounds to believe that, as a necessary and foreseeable consequence of the appellant being removed from to Bangladesh, there was a real risk that he would suffer significant harm.

47    The Authority concluded that the appellant was not a person in respect of whom Australia had protection obligations under s 36(2)(a) or s 36(2)(aa) of the Act, and so affirmed the delegate’s decision not to grant the appellant a protection visa.

Judicial review in the federal circuit court

48    The proceeding before the Federal Circuit Court commenced with a show cause application filed on 10 October 2016.

49    The appellant then sought to rely on an amended application filed on 16 February 2017. In it, the appellant raised four particularised grounds of review, as follows (references omitted):

1.    The Second Respondent constructively failed to exercise its jurisdiction to decide the Applicant’s visa application by failing to address a substantial clearly articulated claim made by the Applicant.

PARTICULARS

A.    The Second Respondent was not satisfied that the Applicant or his family were ever harmed.

B.    In its reasons, the Second Respondent did not address the threats to the Applicant’s father which were an element of the Applicant’s claims.

C.    The Second Respondent accepted that the Applicant was approached by ‘K’ and asked to join Awami League.

D.    In its reasons, the Second Respondent did not address the risk to the Applicant arising from his refusal to pay ‘Kamal’.

2.    The Second Respondent constructively failed to exercise its jurisdiction to decide the Applicant’s visa application by overlooking apparently credible and relevant information made by the Applicant.

PARTICULARS

The Applicant refers to and repeats the particulars given for Ground 1 above.

3.    The Second Respondent made an inference that no reasonable decision maker, making the primary findings made by the Second Respondent, would make.

PARTICULARS

A.    The Second Respondent determined that the Applicant’s claim that he was able to ‘reside in Bangladesh’ after the incident involving ‘Sheikh Mujibur’ was adverse to the Applicant’s credibility.

B.    This determination was one that no reasonable decision maker could make.

4.    The Second Respondent’s made a determination for which there was no evidence or other material to justify.

PARTICULARS

A.    The Second Respondent found that ‘even if the Bangladeshi authorities did come across the information published through the data breach, it will not be of concern to them.’

B.    There was no evidence or other material before the Second Respondent to justify the finding.

50    The primary judge rejected ground 4 first, concisely stating that the Authority’s finding at [28] of its reasons that “even if the Bangladeshi authorities did come across the information published through the data breach, it will be of no concern to them” was supported by evidence that was before the Authority. In this regard, the primary judge pointed to [68] of the Minister’s submissions, which referred to the DFAT reports.

51    The primary judge then considered grounds 1 and 2 together, stating that apart from the fact the claim was put on an alternative basis that what was overlooked was either a “claim” or “credible and relevant information”, the grounds were the same.

52    According to the primary judge, the appellant submitted, in prehearing submissions, that the Authority’s failure to properly consider two central claims made by the appellant amounted to a constructive failure to exercise jurisdiction. These two claims were:

(1)    that threats were made to the appellant’s father in 2006, which threats were discrete from other claims of the appellant that were not accepted by the Authority (the Father claim); and

(2)    that there was risk to the appellant arising from his refusal to pay money demanded by K (the K claim).

53    The primary judge was of the view that, on a fair reading of the Authority’s reasons at [9] – [16], the claims or evidence were considered. The primary judge noted the Authority, at [16] of its reasons, rejected the proposition that M had threatened either the appellant or his family, or beaten the appellant and his father. The primary judge accepted the Minister’s submissions that the Authority did consider the appellant’s claims that his father had been threatened by M, but did not accept that the events described by the appellant occurred.

54    The primary judge further said that, even if the Authority had accepted the Father claim, it would not have changed the outcome of the decision because, as the Authority found, the threats by M were not followed through and the family were able to reside safely for a further year.

55    The primary judge considered it unnecessary to consider further the appellant’s submissions in relation to the K claim as the argument was not pressed.

56    As to ground 3 of the application, the appellant contended before the primary judge that it was unreasonable for the Authority to reach an adverse credibility finding based simply upon the fact that the appellant was able to reside in Bangladesh with no apparent harm subsequent to the claimed incident at the college function.

57    On this point, the Minister contended the adverse credibility finding was open to the Authority but that, even if it was not, any error would not go to jurisdiction because the adverse credibility finding was substantially based upon the appellant’s inconsistent account of the incident.

58    The primary judge acknowledged that there was a lack of logic in the Authority’s proposition that, because the appellant was able to reside in Bangladesh for two months after the incident without apparent harm or revenge being taken, the incident was a fabrication. However, the primary judge considered it unnecessary to reach a final conclusion on this proposition because his Honour accepted the Minister’s submission that the principal basis for the Authority’s adverse credibility finding at [23] was inconsistency in the appellant’s account. The Authority concluded at [23]:

I have considered the applicant’s accounts of this incident. I have also considered the applicant’s inconsistent account of this event raised in May 2013 and in his SHEV application and subsequent interview. I find the change in the applicant’s account of this event to affect the applicant’s credibility adversely. I also find it adverse that he was able to reside in Bangladesh subsequent to this claimed incident with no apparent harm [from] Sheik Mujibur or any other Awami League member. I am not willing to afford the applicant the benefit of the doubt in respect to the incident at the college function, nor do I accept that Sheik Mujibur or any other member of the Awami League have an adverse interest in the applicant. I am not satisfied there is a real chance the applicant will face any harm now or in the reasonably foreseeable future on this basis.

59    As there was a logical and reasonable basis for the adverse credibility finding that was open to the Authority, the primary judge rejected ground 3.

60    For these reasons, the primary judge concluded that no jurisdictional error was established in the decision of the Authority and therefore ordered that the application be dismissed.

appeal to this court

61    By a notice of appeal filed 19 April 2017, the appellant raises the following single ground of appeal:

1.    Ground 4 of the applicant’s FCC appeal was dismissed by the Judge at para. 89 wherein he quotes the Authority’s findings at [28] as identified by the Minister at para. 68. However he fails to consider that the DFAT report only states ‘most returnees’ ‘are not subjected to adverse attention’ and that the applicant could feasibly be amongst those who do come to adverse attention of the authorities in Bangladesh.

62    The appellant did not file any written submissions prior to the hearing of the appeal. At the hearing, following oral submissions made on behalf of the Minister, the appellant said that he did not have a lawyer at earlier material times and also emphasised that he would suffer harm if returned to Bangladesh.

63    The Minister filed an outline of submissions on 7 August 2017.

64    The Minister contends there was no appellable error in the decision of the primary judge in relation to ground four.

65    The primary judge held, at [89] of his reasons, that the Authority’s finding, that “even if the Bangladeshi authorities did come across the information published through the data breach, it will not be of concern to them”, was supported by evidence that was before the Authority, as identified at [68], which in turn referred to paragraphs [27] and [28] of the Authority’s reasons for decision.

66    The point now raised by the appellant on appeal appears to be a little different from that raised in ground four of the amended application before the primary judge. By his ground of appeal, the appellant contends that the Authority failed to consider that the DFAT report referred to by the Authority at [28] only states “most returnees ... are not subjected to adverse attention”, and that the appellant “could feasibly be amongst those who do come to the adverse attention of the authorities in Bangladesh”.

67    The Minister reasonably submits this is a new ground not raised below and leave is required to raise it. See Hossam v Minister for Immigration and Border Protection [2016] FCA 1161 at [39]-[44] and [46]; VAUX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588 at [48]; [2004] FCAFC 158.

68    The Minister contends leave should be refused as the proposed ground lacks sufficient merit and no adequate explanation has been provided for the failure to raise the ground in the Court below. See Hossam at [47].

69    The Minister notes the appellant contends that officers to the Authority committed a jurisdictional error by making findings of fact for which there was no evidence. The appellant therefore must demonstrate that there was no evidence at all upon which its finding was based. See Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356 (Mason CJ); [1990] HCA 33; VAS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 350 at [18]-[19]. This, the Minister says, is fatal to the appellant’s ground.

70    In this case, the DFAT report referred to by the Authority, at [27] of its decision, noted that “most returnees” are not subjected to adverse attention. However, the Authority also found that the appellant was not of adverse interest to the Bangladeshi authorities and would not be adversely treated by the authorities on the basis of departing illegally or seeking asylum in Australia. Those findings were reasonably open to the Authority on the evidence before it.

71    The statement at [5.22] of the DFAT Country Report for Bangladesh dated 5 July 2016 (DFAT Report) upon which the Authority relied must be read in the context of the whole of that paragraph. Paragraph 5.22 states:

5.22    DFAT assesses that most returnees, including asylum seekers, are not subjected to adverse attention regardless of whether they have returned voluntarily or involuntarily. Authorities may take an interest in high-profile individuals who have engaged in political activities outside Bangladesh, including people convicted of war crimes in absentia.

72    I accept the Minister’s contention that when the reference to “most returnees” in [5.22] of the DFAT Report is seen in its full context, the Authority’s findings at [27], that it was not satisfied that the appellant will face a real chance of harm on the basis of seeking asylum in Australia, does not involve any jurisdictional error. On the Authority’s findings, the appellant was neither a high-profile individual who had engaged in political activities outside Bangladesh, nor was he a person convicted of a war crime in absentia. The Authority’s finding that the appellant now seeks to challenge was, in those circumstances, open to it on the evidence before it.

73    The proposed ground therefore lacks merit. Additionally, no adequate explanation has been provided as to why this ground is not raised in the Court below.

74    In these circumstances, the appellant should not be granted leave to raise the new ground in his notice of appeal.

75    As to the matters raised by the appellant in his oral submissions to this Court they are in some ways different again from the proposed ground of appeal and either raise new issues not previously raised in the Court below or go to the merits of the decision making of the Authority. As a result those matters do not fall for determination for this Court, which is only concerned to determine whether the Court below made any legal error in failing to detect any jurisdictional error by the Authority.

76    The appeal should be dismissed with costs.

Associate:

Dated:    14 August 2017