FEDERAL COURT OF AUSTRALIA

DCV16 v Minister for Immigration and Border Protection [2017] FCA 1458

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

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

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

REASONS FOR JUDGMENT

RANGIAH J:

1    This is an appeal from a judgment of the Federal Circuit Court of Australia delivered on 22 June 2017. The primary judge dismissed the appellant’s application for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal). The Tribunal affirmed a decision of a delegate of the first respondent dated 22 September 2014 to refuse the appellant the grant of a Protection (Class XA) visa.

2    The appellant is a citizen of Bangladesh. He arrived in Australia on 20 March 2013 and applied for a protection visa on 20 June 2013. On 22 September 2014, the first respondent’s delegate refused the application. The appellant then applied to the Tribunal for review of the delegate’s decision. On 5 October 2016, the Tribunal affirmed the delegate’s decision.

3    Before the Tribunal, the appellant made the following claims. When he lived in Bangladesh, he was a member and supporter of the Bangladesh Nationalist Party (BNP). He regularly attended BNP rallies and meetings. He held a position of General Secretary of the Jubo Dal, the youth wing of the BNP, for three years before leaving Bangladesh. As General Secretary, he attended and organised regular meetings of local BNP supporters in his village and was involved in recruiting people to join the BNP. He was targeted and brutally attacked by members of the Awami League due to political allegiance and his refusal to change political parties. He fears that he will be harmed or killed if he returns to Bangladesh because of his political opinion and, in addition, he fears that Bangladesh authorities will punish him as a failed asylum seeker.

4    The Tribunal found as follows:

19.     …[T]he Tribunal considers that much of the applicant’s claims and evidence were problematic. There were numerous inconsistencies, and the applicant made many vague, generalised statements which he was often unable to substantiate or provide further meaningful details. The Tribunal’s assessment of his claims and evidence follows immediately below.

…

67.     The Tribunal accepts that the applicant is a low-level supporter of the BNP, and that his family generally favours the party. For the reasons given above, the Tribunal does not·accept that the applicant had any further involvement with the party or politics generally; that he had any political profile or influence; or that he was perceived as such. It does not accept that AL cadres or anyone targeted him for political or similar reasons, including at cricket matches, at the market, in harassing his family, or in pursuing and threatening to kill the applicant.

…

76    In light of the above findings, namely that the applicant does not have an adverse political profile in Bangladesh and hat (sic) he has not engaged in any political ·activism since his departure and in the absence of any suggestion that he is wanted in connection with criminal (including war crime) matters, the Tribunal is not satisfied that the applicant faces a real chance of serious harm amounting to persecution for reason of his future status as a failed asylum seeker (if he were to return to Bangladesh on that basis), due to his illegal departure from that country, or for any associated reason.

77    In sum, the Tribunal does not accept that he has a well-founded fear of persecution for reasons of any political opinion, his future status as a failed asylum seeker, or for any other Convention reason.

Assessment - Complementary Protection

78    The Tribunal has considered whether on the evidence before it, that there would be a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Bangladesh.

…

80.     Closely related to this is the question of Bangladesh’s general security environment, political instability and poor economic and social conditions. Under s.36(2B)(c) of the Act, there is taken not to be a real risk that an applicant will suffer significant harm if the Tribunal is satisfied that the real risk is one faced by the population generally and is not faced by the applicant personally. The Tribunal is satisfied that the applicant’s concerns about general conditions in the country, including under the current government, are faced by the population generally and not by him personally. According, the Tribunal finds that there is no real risk that the applicant will suffer significant harm in Bangladesh as a result of the general security situation.

81.    The Tribunal has considered above whether the circumstances of the applicant’s return to a Bangladesh as a failed asylum seeker, and in particular as one who departed illegally, would put him at risk of legal or other punishment. The available country information indicates that there is no real risk of significant harm.

82.     Having regard to the applicant’s circumstances and relevant country information, the Tribunal finds no real risk that the applicant – as a person who favours the BNP and even if he returns to Bangladesh as a failed asylum seeker – will face a risk of being arbitrarily deprived of his life, that the death penalty would be carried out on him, that he will be subjected to torture, that he will be subjected to cruel or inhuman treatment or punishment; or to degrading treatment or punishment.

83.    Accordingly the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Bangladesh, there is a real risk that he will suffer significant harm: s.36(2)(aa).

5    The Tribunal was not satisfied that the appellant was a person to whom Australia owes protection obligations under ss 36(2)(a) or 36(2)(aa) of the Migration Act 1958 (Cth).

6    Before the Federal Circuit Court, the appellant raised the following grounds of review:

1.    The Tribunal fell into jurisdictional error by making a decision under s 36(2) of the Migration Act based on a misconstruction of the expression ‘political opinion’ in Article 1A of the Refugees Convention.

Particulars

(a)     The applicant said that he undertook a range of activities, such as attending meetings and rallies, and protests, and assisting in BNP charity work.

(b)     The Tribunal accepted that the applicant and his family generally support the BNP [24].

(c)     The Tribunal accepted, on the basis that it is plausible, and consistent with the applicant’s overall evidence and country information, that he is a low-level supporter of the BNP. It accepts that he may have attended public meetings or rallies, particularly around election time [29].

(d)     The Tribunal found that the applicant did not have an adverse political profile in Bangladesh [76].

(e)     Overall the Tribunal found that the applicant would have only a very low profile as a person who favours the party (BNP) [68].

(f)     Country information provided to the Tribunal in the applicant’s written submissions included a Human Rights Watch report that described the country’s security forces carrying out ‘enforced disappearances, killings and arbitrary arrests, particularly targeting opposition leaders and supporters, with impunity’ (emphasis added). [Green Book p.691]

2.     The Tribunal fell into jurisdictional error by making a purported decision that was manifestly illogical, irrational or unreasonable.

Particulars

(a)     The Tribunal stated that the Applicant had not engaged in any political activism since his departure from Bangladesh and therefore he did not face a real risk of serious harm amounting to persecution [76].

3.     The Tribunal fell into jurisdictional error by failing to take into account a relevant consideration.

Particulars

(a)     Ministerial Direction No 56 states that decisions makers ‘must take into account’ DFAT country information assessments in the course of making a decision.

(b)     The Tribunal failed to consider specific relevant examples of the Awami League’s propensity for violence against supporters of the BNP and the culture of impunity in Bangladesh.

4.     The Tribunal fell into jurisdictional error by failing to discharge its core function to review the decision.

Particulars

(a)     The Tribunal failed to comply with the requirements under the natural justice hearing rule, specifically, it failed to comply with the requirements of s 359AA and s 359A(l).

7    As to the first ground of review, the primary judge found that, contrary to the appellant’s submission, the Tribunal had found that the appellant had a political opinion. The Tribunal was obliged to make an assessment of whether the appellant held a fear of being persecuted for reasons of his political opinion and whether that fear was well-founded. It was to that part of the definition of refugee in the Refugees Convention that the Tribunal’s finding that the appellant was a low-level supporter of the BNP party was directed. His Honour concluded that the first ground revealed no jurisdictional error on the part of the Tribunal.

8    As to the second ground, the primary judge understood the appellant to submit that the Tribunal’s decision that it was not satisfied that he had a well-founded fear of persecution, or perhaps that there was no real risk he would suffer significant harm if returned to Bangladesh, was irrational or illogical. His Honour observed that an applicant needs to demonstrate “extreme illogicality or irrationality” to establish jurisdictional error in fact finding on the basis of illogicality or irrationality: ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109 at [47]. The primary judge found that there was no such irrationality or illogicality in the Tribunal’s decision and that the conclusion as the Tribunal came to was open to it on the evidence. Alternatively, if the appellant’s argument was that the Tribunal found that he did not have a real risk of harm because he had not engaged in political activism since his departure from Bangladesh, his Honour found that the Tribunal did not base its decision only on that matter.

9    As to the third ground, the primary judge observed that the Tribunal’s decision made it clear that it had taken into account the most recent Department of Foreign Affairs and Trade (DFAT) country information for Bangladesh. The Tribunal had also taken into account that there were generally high levels of political violence in Bangladesh both between and within the major parties. Further, the Tribunal had regard to country information relied upon by the appellant and referred to that information in its decision. The primary judge found that contrary to the appellant’s allegation, the Tribunal did not fail to consider specific examples of the Awami League members’ propensity for violence against supporters of the BNP and the culture of impunity that allegedly existed in Bangladesh. It had regard to information concerning violence between the major political parties in Bangladesh. His Honour accepted that the appellant’s arguments in relation to the third ground essentially cavilled with the merits of the Tribunal’s decision.

10    The primary judge did not deal specifically with the fourth ground, presumably because it was inadequately particularised.

11    Before this Court, the appellant relies upon the following grounds set out in his notice of appeal:

(1)    The judge of the Federal Circuit Court in his honourable judgement delivered on the 22 June 2017 failed error of law and relief under the judiciary Act. He failed to find that the Administrate Appeals Tribunal (AAT) has not found any evidence in relation to my claims and thus its decision influenced by sufficient doubt.

(2)    Honourable Judge failed to hold that the Tribunal made an error of law when it did not take up and separately deal with the factual issues. The Tribunal failed to find low profile political activists are mostly persecuted because of their role for the party like BNP. The Tribunal failed to understand the persecution until political killing in Bangladesh under present dictatorial role in Bangladesh. The Tribunal member concluded that I will not suffer from any harm if I go to Bangladesh, which is not feasible.

(3)    I was denied procedural fairness when the Tribunal member made opinion based on assumption and possibilities without any proper Investigation. The Tribunal failed to assess the current situation in Bangladesh where thousands of Bangladesh Nationalist party(BNP) workers are arrested and killed by so called crossfire and harassed by the autocratic present Awami League Government & the Authority. In assessing danger to me, the Tribunal undermined the danger I will face if I am compelled to return Bangladesh as returned asylum seeker. And also, I came by boat in Australia only protect my life.

(4)    Besides, the Administrative Appeals Tribunal did not follow the proper procedure as required by the Act in arriving its decision dated 5 October 2016 in deciding my protection visa merit review application. Thus, the procedures that were required by the act or regulations to be observed, in connection with the making of the decision were not observed.

(Errors in the original.)

12    The appellant filed written submissions. His oral submissions were confined to seeking an adjournment (which was refused) and emphasising he had told the truth and that this life would be in danger in Bangladesh.

13    The appellant’s written submissions set out a ground of appeal as follows:

The Tribunal fell into jurisdictional error by deciding that the threshold requirements under s 36(2)(a) had not been met based on a misconstruction of the expression “political opinion” in Article 1A of the Refugees Convention.

14    The submissions then set out particulars of that ground, but those particulars do no more than repeat some of the claims made by the appellant before the Tribunal and the Tribunal’s findings.

15    The written submissions then go on to say:

The Tribunal fell into jurisdictional error by making a purported decision that was manifestly illogical, irrational or unreasonable.

16    The submissions then say that:

The Tribunal stated that the Applicant said in relation to his involvement in BNP in Australia that he was not in contact with any members now. I stated that I was reluctant to contact BNP or similar bodies because this could reignite memories of My past in Bangladesh and induce more anxiety.

The Tribunal was sceptical about this comment, as a politically engaged person might equally be keen to maintain their network, for instance, to keep abreast of local political news and for social reasons.

…

The onus is not on me to modify my behaviour by refraining from lawfully acting in a way that expresses my political opinions to mitigate a risk of persecution.

(Errors in original.)

17    The written submissions state that the Tribunal fell into jurisdictional error by failing to take into account a relevant consideration. Ministerial Direction No. 56 requires that decision makers must “take into account” DFAT country information assessments in the course of making a decision. It is said that the Tribunal failed to consider specific relevant examples of the Awami League’s propensity for violence against supporters of the BNP and the culture of impunity in Bangladesh.

18    The written submissions go on to assert that the first respondent’s delegate erred by failing to distinguish between genuine and false documents, erred in denying genuine documents without credible evidence and denied genuine documents based on country information. The submissions say that the Tribunal and the Federal Circuit Court erred in affirming the delegate’s decision.

19    The written submissions also seem to raise an argument that the Tribunal made an error of law by failing to consider the merits of this particular case and, instead, based its decision only on country information.

20    Further, the written submissions state that the appellant asked the Tribunal to make a telephone call to verify the authenticity of his documents, but the Tribunal member failed to do so, leading to the wrong decision.

21    The first ground of the notice of appeal seems to assert that the primary judge made an error of law by failing to find that the Tribunal found that there was insufficient evidence to support his claims. That ground goes to the merits of the Tribunal’s decision and does not assert any jurisdictional error on the part of the Tribunal.

22    The second ground of the notice of appeal also takes issue with factual findings made by the Tribunal. Again, it does not allege jurisdictional error. Alternatively, the ground may be understood as alleging that the Tribunal’s decision was illogical, irrational or unreasonable. I have set out the Tribunal’s reasons in some detail earlier in these reasons. The decision that the Tribunal made was entirely open to it for the reasons given by the Tribunal. On the evidence before the Tribunal, a logical or rational decision-maker could have come to the same decision as the Tribunal. Accordingly, its decision was not illogical, irrational or unreasonable: see Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [135].

23    The third ground of the notice of appeal alleges that the appellant was denied procedural fairness by the Tribunal’s failure to make any proper investigation of his claim. This appears to be related to the allegation in the written submissions that the appellant asked the Tribunal to make a telephone call to verify his documents. The documents provided by the appellant to the Tribunal include various identity documents, academic records and a letter confirming the appellant’s position as Joint Secretary of the Sultanpur Union National Youth Community. Of these documents, the letter seems to be the particular document that the appellant relies on in his written submissions. In respect of that letter, the Tribunal found as follows:

28.     The applicant produced a purported letter from the Sultanpur Union branch of the BNP’s youth wing, the Jatiyatabadi Jubo Dal (JJO), dated 27 August 2014. The applicant said that his brother obtained it from a local BNP leader, although he would not be drawn on whether any BNP figures remain active in his local area. Instead, he commented only that nobody is safe. This English translation is somewhat confusing, as it lacks ·a clear reference to the BNP; it was only with some difficulty that the Tribunal confirmed what political wing of the party it refers to. The translated text mentions only the applicant’s work as a Joint Secretary in the youth wing from 2010, although the reference to his undertaking community work ‘with honesty, sincerity and dedication’ could imply that he had some previous links with the BNP. The Tribunal considers this claim and the letter-further, below. However; it places very little weight on it as evidence that the applicant had been a BNP worker or otherwise active in the party since 2001.

…

32.     The Tribunal has considered the letter from the BNP youth wing’s Sultanpur Union branch, dated 27 August 2014. As noted above, it certifies that the applicant held the position of Joint Secretary in that branch from 2010, and that he worked for the community with· honesty, sincerity and dedication. The applicant said that his brother obtained this for him, at his request. Country information indicates that there is a high level of document fraud in Bangladesh, including the willingness of office bearers to write supporting letters whose contents are either false or not verified, upon payment of money or to assist friends and family. The provenance and reliability of this document are therefore in doubt. The Tribunal places very little weight on it as evidence that the applicant held an official position in the BNP’s student wing, and in any event, it does not dispel the Tribunal’s already strong concerns - that is, its view that the applicant did not have any greater political involvement, and the applicant’s failure to explain his earlier omission of this claim.

24    Presumably, the appellant’s submission is that the Tribunal ought to have telephoned the author of the letter. However, even if the author told the Tribunal that the letter was genuine and the contents of it were true, that could not have allayed the concerns expressed by the Tribunal at paragraph 32 and other doubts expressed by the Tribunal about the appellant’s credibility: cf Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429; [2009] HCA 39 at [25]-[26]; Re Minister for Immigration and Multicultural Affairs; Ex Parte Applicant S20/2002 (2003) 77 ALJR 1165; [2003] HCA 30 at [49]. The Tribunal was not obliged in these circumstances to make the telephone call that the appellant requested it make.

25    The third ground also appears to allege that the Tribunal failed to take into account country information in accordance with Ministerial Direction No. 56. However, the Tribunal expressly considered recent country information, including country information dealing with discrimination and harassment of BNP members and supporters. The third ground otherwise seems to take issue with the merits of the Tribunal’s decision.

26    The fourth ground of the notice of appeal is wholly unparticularised as to procedures which are said not to have been followed by the Tribunal. It cannot succeed.

27    The appellant’s written submissions assert that the Tribunal fell into error when it took into account that he was not politically active while in Australia. The submissions indicate that the onus is not on the appellant to modify his behaviour by refraining from lawfully acting in a way that expresses his political opinions to mitigate the risk of persecution. The appellant refers to Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473, where McHugh and Kirby JJ said at [40] that “persecution does not cease to be persecution for the purpose of the convention because those persecuted can eliminate harm by avoiding action”.

28    The Tribunal noted that the appellant had no further contact with the BNP since leaving Bangladesh. The Tribunal said, that in this case it “detected no genuine ongoing interest in the BNP, except insofar as it formed part of his protection claim”. The relevance of this finding for the Tribunal was that it was inconsistent with the appellant’s evidence of his extensive involvement with the BNP in Bangladesh, including as secretary of the youth wing of the BNP, Juba Dal. It was open to the Tribunal to reason in this way. There is nothing to suggest that the Tribunal reasoned that if he returned to Bangladesh, the appellant would be able to eliminate the risk of harm by avoiding political involvement.

29    The appellant’s written submissions assert that the Tribunal failed to consider the merits of his particular case, relying instead on country information. That allegation is without substance. It is plain that the Tribunal did consider the appellant’s individual circumstances.

30    The appellant’s written submissions otherwise take issue with the merits of the Tribunal’s decision. To that extent, they do not allege jurisdictional error.

31    The appellant has not demonstrated any error on the part of the primary judge. The appeal must be dismissed with costs.

Associate:    

Dated:    7 December 2017