FEDERAL COURT OF AUSTRALIA

DBY16 v Minister for Immigration and Border Protection [2018] FCA 1687

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant must pay the first respondent’s costs fixed in an amount of $3,160.

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

REASONS FOR JUDGMENT

FARRELL J:

1    This is an appeal from a judgment and orders of the Federal Circuit Court of Australia published as DBY16 v Minister for Immigration [2017] FCCA 1183. The primary judge dismissed the appellant’s application for judicial review of a decision of the Administrative Appeals Tribunal to refuse the appellant a Temporary Protection (Class XD) visa.

2    The appellant (to whom I will also refer as DBY16) was not represented at the hearing of the appeal. He asked for a barrister to be provided on the basis that he could not afford one. He made submissions which went only to the merit of the application with little relationship to the grounds. The grounds of appeal on which he relied have appeared in at least one other matter on which I have sat involving a citizen of Bangladesh, with only the name of the primary judge changed. Elements of those grounds were not raised before the primary judge.

3    As the Minister’s representative submitted, DBY16 does not have a legal right to have a lawyer appointed and I did not consider that this was an appropriate case to seek pro bono representation. However, because of the circumstances outlined above, I have given detailed consideration to the submissions made to the Tribunal on DBY16’s behalf by his migration agent, the Tribunal’s decision record (or DR) and the reasons of the primary judge.

Background

4    DBY16 is a citizen of Bangladesh. He arrived in Australia as an unauthorised maritime arrival on 20 March 2013. He applied for a Protection (Class XA) visa on 20 June 2013. The application was refused by a delegate of the Minister for Immigration and Border Protection on 30 December 2014.

5    The application details indicate that DBY16 has three older brothers (one of whom has lived in Saudi Arabia since 2006, whom I will refer to as “Soleman” and another who lives in Dubai) and three married sisters. Many of DBY16’s claims relate to a fear of harm related to claimed activities of Soleman as a member and office holder of the Bangladeshi Nationalist Party (BNP).

6    DBY16 participated in an entry interview.

7    In a statutory declaration accompanying his application for a visa, DBY16 claimed to fear harm in Bangladesh due to:

(1)    His family supported the BNP and Soleman was a “very active supporter”. Soleman began supporting the BNP before 2001 and he was a Union-level leader (several villages) of the BNP. Around March 2006, his parents decided to send Soleman to Saudi Arabia because he had not been earning any income due to his political activities and the political situation was becoming quite tense so that they wanted to limit the family’s involvement to avoid any political issues.

(2)    A land dispute with a neighbour. His father bought the land from three brothers many years ago. At the time of purchase, one of the brothers was overseas, and that brother is now a neighbour. At the time of the sale, the other two brothers assured his father that the absent brother consented to the sale. The dispute began around the beginning of 2006 when the neighbour denied that he had consented and demanded 6 “katha” of land. DBY16’s father told his neighbour that he should raise the issue with his brothers.

(3)    After the Awami League took power in December 2008, Awami League gangs took this as an opportunity to take revenge for Soleman’s role in the BNP. In early 2009, a gang of 10-12 Awami League members came to the family home and said that the family had to either relinquish title to the land or pay a fee to resolve the dispute. His father paid 80,000 Takka to the neighbour. The Awami League took the money and said that as Soleman was involved with the BNP, this was just the beginning. In about January 2010, the Awami League members returned and stated that the value of the land had now increased and demanded 100,000 Takka as compensation.

(4)    His father suffered stress from this situation and DBY16 believes that this contributed to his death in May 2010.

(5)    There was a further incident in early 2011 during which 15-20 Awami League members came to his home and physically assaulted DBY16 and members of his family. They searched the house and took money and jewellery worth about 100,000 Takka.

(6)    In an incident in August 2012, three members of the Awami League approached DBY16 while he was returning home. He threw a brick at one of them, who was hit in the leg and fell to the ground. DBY16 was beaten with a stick by the other two men and one of them pointed a pistol at him and threatened to kill him. After he started shouting, a neighbour and his family came to see what was wrong and the three men fled. DBY16 went into hiding at his sister’s home. DBY16 heard from his family that the man he injured with a brick had a broken leg and the Awami League were now searching for him to seek vengeance so that it was no longer safe for him to stay in Bangladesh. His family have told DBY16 that they still search for him even though he has left Bangladesh.

(7)    DBY16 knows about the corruption and extortion of Awami League members in his local area and, as a relatively wealthy BNP supporter, he is vulnerable to extortion.

(8)    DBY16 fears that he would be detained, extorted, abused or killed by Awami League activists or members if he returns to Bangladesh.

8    Following an interview with DBY16, the delegate refused the protection visa on 30 December 2014. The delegate’s decision records (among other things) that:

(1)    Elements of DBY16’s personal details are credible due to the consistency of information provided. However, elements of his response about being targeted by Awami League supporters due to Soleman’s political profile and the subsequent land dispute along with his decision to eventually depart Bangladesh are not credible. The delegate found that DBY16 was hesitant and vague in his responses to questions and that he embellished his material claims in an effort to enhance his chance of gaining protection in Australia.

(2)    At the interview with the delegate:

(a)    DBY16 said that his parents organised for Soleman to leave Bangladesh because they learned of a plot to kill him;

(b)    The land dispute began in 2007 when the interim caretaker government came to power before handing over power to the Awami League in 2008. He said that his brother had purchased the land from the two brothers who were his neighbours;

(c)    At the beginning of 2011, he closed his shop due to the activities of the members of the Awami League; and

(d)    He did not know how his father financed the payments he made.

(3)    In his entry interview, DBY16 said that his father died in 2011, not 2010, and in his protection visa application, he said that he worked with his father in his shop until September 2012.

(4)    As mentioned in his entry interview, his arm was broken in the incident in 2012 and he threw sand in the face of his attackers before a neighbour intervened but that was not mentioned in his statutory declaration so that the evidence given to the delegate combined the accounts of the event in the statutory declaration and the entry interview;

(5)    DBY16 claimed that the attacker who was injured in the leg by the brick in the incident in 2012 had his leg amputated as a result of which men were threatening to kill and disable him. In his entry interview he said that, subsequent to going to his sister’s house, he heard that the injury was “very serious” and that they were going to kill him;

(6)    DBY16 told the delegate that he had contemplated suicide when he was hiding at his sister’s home before his brother-in-law organised for him to leave the country. His sister’s home was five kilometres from his home, and he was not targeted there.

9    DBY16 applied to the Tribunal (which was then known as the Refugee Review Tribunal) to review the delegate’s decision on 29 January 2015. By a letter dated 5 November 2015, DBY16’s representative made submissions to the Tribunal in relation to detailed factual background to his claims, academic and judicial statements on assessing credibility, country information in relation to the security situation for BNP land owners living under Awami League rule and witnesses of corruption, and a range of other issues. DBY16’s claims were explained as follows:

(1)    The family’s support of the BNP generally consisted of believing in the political motivations of the BNP and, where possible, voting for them. DBY16 did not have a formal membership with the BNP.

(2)    The disputed land was bought by DBY16’s father. DBY16 named the third brother who had been away when the land was sold to DBY16’s family. I will refer to that man as Mr M. Mr M returned while DBY16 was in secondary school. Although Mr M discussed the state of the land with DBY16’s father, he did not demand restitution or that the land be returned at that time.

(3)    In 2005, DBY16 completed secondary school and started working at his father’s general store.

(4)    A caretaker government took over from the BNP around October 2006 in the lead up to elections. There was a substantial Awami League supporter base in Chandpur and this worried the family because Soleman had become a “key figure” within the BNP resulting in his family being indirectly associated with the BNP. DBY16 assisted Soleman and the BNP by attending events and putting up banners. Soleman often received threats of harm but did not disclose those threats to the family. His father learned of them because he ran the general store and people from both parties went there. The submission attributes the suggestion that there was a plot to kill Soleman as a mistranslation and DBY16 confirmed that there was no explicit plot and reiterated the reasons for his brother going to Saudi Arabia set out in his statutory declaration.

(5)    The land dispute began in late 2006 when Mr M approached his father and denied that he had consented to the sale. Mr M and his father spoke on several occasions, including at his father’s grocery store but although the conversations were heated, they did not escalate to physical violence. Mr M sought compensation for the land.

(6)    The Awami League won the elections in December 2008. Although Soleman was in Saudi Arabia, the family began to be harassed by members of the Awami League because of imputed political opinion based on their association with him. Notwithstanding this, Soleman maintained his BNP membership while he was in Saudi Arabia.

(7)    Mr M was present at the incident in early 2009, which demonstrated that he was closely associated with key members of the Awami League and its supporters. During the incident, the Awami League supporters made reference to the fact that Soleman was a prominent BNP supporter and the family supported the BNP and enquired about Soleman’s whereabouts. To avoid conflict, the father paid 80,000 Takka but the supporters stated that it was just the beginning and they would require more money because the brother was involved with the BNP. DBY16 did not know where his father got the money.

(8)    Between 2009 and 2010, DBY16’s family was harassed by members of the Awami League and Mr M who were still not satisfied with the money he had received. The harassment was verbal not physical.

(9)    By around 2010, DBY16’s father was regularly being harassed at the general store to pay further money to Mr M. Around January, several Awami League members and Mr M returned to the family’s home and stated that the value of the land had now increased and demanded 100,000 Takka as compensation for the land. DBY16’s father was threatened with harm if he did not agree and he eventually paid 100,000 Takka to Mr M. Once again, the men indicated that this was not a single payment but would be continuous. In May 2010, DBY16’s father passed away. DBY16 believed that the stress and anxiety caused by the extortion by the Awami League and Mr M contributed to his father’s death. Increased threats from Awami League members ensued, and DBY16 faced particular harassment as he became responsible for his father’s general store.

(10)    Harassment escalated in 2011 culminating in an incident in early 2011 when approximately five or six individuals entered the general store including Mr M. They demanded payment to Mr M for “illegally occupying” the land. The men did not accept that DBY16’s family was suffering great hardship following his father’s death and they instead began to use sticks to destroy merchandise. Although DBY16 was not physically harmed he closed the shop as a result of the harassment and fear of future harm. His family became primarily dependent on his brother in Saudi Arabia.

(11)    In early 2011, 15 to 20 Awami League members and Mr M arrived at the family home and assaulted his mother, two sisters-in-law and a brother as well as DBY16. They had guns and large knives. They demanded 100,000 Takka, saying that they would kill DBY16 and others if he did not pay. They spoke directly to DBY16 so it appeared that they had begun to view him as holding responsibility following his father’s death. When the family said they did not have the money, they searched the house and seized money and jewellery to a value of approximately 100,000 Takka. Most of the money belonged to Soleman who was regularly sending money back to provide for the family. Following the assault, Awami League members and Mr M continued to verbally harass DBY16 and his family in public but did not demand immediate payment. DBY16 believes that this is likely because they knew the family needed time to pay.

(12)    In around January 2012 DBY16 was at the local market with a friend when he saw Mr M’s son by himself. He attempted to explain “on a personal level” the difficulty his family was suffering despite the fact that his father legally purchased the land from Mr M’s brothers. Mr M’s son disregarded the explanation and instead taunted DBY16, indicating that his family would continue to suffer. In frustration, DBY16 attempted to fight Mr M’s son by punching him and subsequently DBY16 and his friend were in a fight with the son after which they departed the area. Knowing this would enrage Mr M, DBY16 began to live discreetly, only leaving the premises for the most urgent reasons.

(13)    Mr M’s son was one of the men involved in the incident in August 2012 and it was he who was hurt with the brick. DBY16 attempted to throw sand in the eyes of the two men who beat him with a stick which only further angered them. One pointed a gun at DBY16 and stated that he would kill him. DBY16’s cries for help were heard by a neighbour who came to see what was causing the commotion as a result of which the men ran away, carrying Mr M’s son. Fearing imminent harm, DBY16 was assisted by his neighbour to take a rickshaw to his sister’s home where he sought medical treatment for his injuries from a village doctor who confirmed that he had a broken arm. The doctor was not a professional and did not keep records. DBY16 believes that the attacks were motivated by Soleman’s and his family’s association with the BNP. DBY16 determined that he would not return to the family home for fear of harm.

(14)    While he was at his sister’s home, he heard from his family members that Mr M’s son had suffered a broken leg and he became aware that Awami League members were searching for him in order to seek vengeance. Shortly after, he heard that Mr M’s son’s leg injury was extremely severe and likely permanent causing further fear that Mr M and his associates would harm him. They began regularly going to his family home looking for him. He felt no longer safe to remain in Bangladesh and made arrangements to depart. The statement in the delegate’s decision record that the leg was amputated is incorrect and DBY16 believes that this could be a misconstruction of his attempt to indicate that the leg was severely damaged in a permanent manner. DBY16 does not know whether the leg was amputated but believes that it was not.

(15)    Mr M and Awami League members continue to go to DBY16’s family home and demand to know the whereabouts of DBY16 and Soleman who remains in Saudi Arabia. His mother pays extortion money in order to prevent further harm. The money is provided by DBY16 from what he earns in Australia and by Soleman.

(16)    DBY16 could not relocate within Bangladesh because he does not have any relatives or close social ties outside his home village and does not possess a high level of education nor significant experience making it difficult for him to obtain employment. Further there is a “fraudulent police complaint” made against him for suspected involvement in protests and DBY16 suspects that the complaint was fabricated by Awami League supporters. The authorities will now be able to identify and reach DBY16 throughout the country and he will be unable to seek state protection to prevent the search.

(17)    DBY16 fears harm if he was returned to Bangladesh as a failed asylum seeker who left Bangladesh illegally. This claim relied on an article in the Sydney Morning Herald on 25 May 2015 quoting the Prime Minister of Bangladesh as saying that “side-by-side with the middlemen, punishment will have to be given to those who are moving from the country in an illegal way … They are tainting the image of the country along with pushing their life into danger”. Based on reports from the UK Home Office and the US Department of State (among others) DBY16’s representative points out that the conditions in prisons are harsh and the lack of proper sanitation contributed to custodial deaths.

10    DBY16 attended two hearings with differently constituted Tribunals. The first occurred on 11 February 2016. Following that hearing, DBY16’s representative provided written submissions to the Tribunal dated 16 February 2016 to address the issues raised by the Tribunal at the hearing as follows:

(1)    Whether DBY16 was able to obtain documentation evidencing the land dispute. DBY16’s representative said that DBY16 had tried to obtain documents but his family no longer have them. He asked his family to contact relevant land records offices in Bangladesh, however incredibly high levels of bureaucracy mean that as he does not have the necessary personal contacts nor means to bribe officials, he is uncertain when he can obtain the documents. A quoted household study in 1992 found that 68.25% of respondents paid bribes to officials to get service.

(2)    Whether DBY16 was able to obtain documentation evidencing his brother’s involvement in the BNP. In response, DBY16’s representative noted that union councils are the smallest administrative and local government units in Bangladesh and there are 4,554 of them. DBY16 had been unable to obtain online evidence of his brother’s involvement in the BNP. However he had been able to obtain a letter on a BNP letterhead confirming that his brother was a BNP member and vice president of a named union. A copy of the letter was provided and said to support the credibility of DBY16’s claims. The letter was dated “25.11.2015” and signed with a signature block indicating that the signature was that of the Secretary of the relevant BNP Upazila Committee. It said (as written):

Md Solaman is effective member Bangladesh Nationalist Party (BNP) at [name redacted] Upazilla and vice President of [name redacted] union parishad. His family take a decision about Solaman to send him Sudi-arabia from October 2006. Already the Political situation was very worst. So his parents send to him Sudi-arabia so that he could not engage any political activities. For that moment the government of Bangladesh changed of new government Bangladesh Awami Lige. For that the opposition party’s activities are victim of many occurrence such as killing attacking, arson, of home case etc. Beside the ruling party activities attracted the opposition in the day of light. They attracted of Solaman family. They took valuable things and also money of the family. They attracted October 2012 Solaman’s little brother’s [DBY16] and broken down his left hand and elbow then he took treatment and go out abroad for save his life. So their family now over come with low condition. They threat [DBY16’s] family for return [DBY16] and gave them. So they should not back home about this situation.

(3)    Why DBY16 had made no reference to his suicide attempt before the Tribunal hearing. DBY16’s representative noted that at the hearing, DBY16 told the Tribunal that after he had gone to his sister’s house and got treatment he heard that there were problems with Mr M’s son’s foot and Mr M had gone to his family’s home and said that if he ever saw DBY16 he would kill him. Because there were so many problems he got depressed and tried to take sleeping pills to kill himself but his sister saw him and told him not to do that. Then “my brother put me into this journey”. The representatives cited information from the Immigration and Refugee Board of Canada and noted that the omission was not significant or central to the claims but rather an outcome of the feared harm. Further, attempted suicide is personal and often a traumatic event. It noted a UK Home Office direction to the effect that a true account is not always detailed or consistent in every detail and submitted that the Tribunal should find it plausible that DBY16 omitted to mention the incident.

(4)    Why DBY16 had not referred to Mr M’s son being involved before the submission made by his representative to the Tribunal. The representative submitted that the particularly significant event was that DBY16 had been beaten and that he had thrown a brick at one of the men causing injury as a result of which the Awami League was searching for him to seek vengeance. DBY16 had therefore provided consistent information even though he had not mentioned that Mr M’s son had been involved before he made the application to the Tribunal. He had longer to prepare the Tribunal application than he did for his protection visa application and he was able to discuss the incident in more detail with his representative. This plausibly led to the disclosure of more information in his application to the Tribunal.

(5)    Country information from the Department of Foreign Affairs & Trade (DFAT) indicates that Bangladeshis who depart illegally and are then returned may face up to one year imprisonment but DFAT is not aware of these penalties being enforced. DBY16’s representative submitted that although DFAT was not aware of these penalties being enforced, DFAT did not say that those penalties were not enforced. DBY16’s representative referred to the article published in the Sydney Morning Herald on 25 May 2015 to which it had referred in its letter dated 5 November 2015 and suggested that, as the comments by the Prime Minister were relatively recent, its impacts are unlikely to have been reported in DFAT reports, particularly if their information is sourced from previous years. Acknowledging that there was a lack of information supporting the Prime Minister’s comments, the representative pointed out that there is also a lack of information opposing those comments.

(6)    Whether, if DBY16 genuinely fears harm, there is somewhere else in Bangladesh that he could relocate. The representative noted that at the Tribunal hearing, the Tribunal member put to DBY16 that the newspaper articles on which he relied do not establish that he could not relocate safely. The representative also noted the Tribunal’s suggestion that the articles relied on random acts of violence and that there was no reason why the police would shoot him. The submissions note that whether relocation is reasonable depends on the circumstances and re-iterated that DBY16’s lack of family or social connection outside his village, the fact that he is largely unskilled and uneducated make it unreasonable for him to relocate and that the current government (the Awami League) could search him out and persecute him anywhere in Bangladesh.

11    DBY16 then appeared before a differently constituted Tribunal on 25 August 2016. His representative filed further submissions on 29 August 2016. In it, the representative advised that:

(1)    Soleman remains a member of the BNP and continues to live in Saudi Arabia. Another brother has been in Dubai since 2007 or 2008. Both provide for their families who remain in Bangladesh.

(2)    DBY16’s mother lives alone in the family home and Mr M has “partially” taken over the land acquired by the family. The remaining land is not affected. It remains difficult to obtain documents concerning the land from Bangladesh and there is no one in Bangladesh with proper authority to do so.

(3)    DBY16 acknowledged that, in self-defence, he may have injured Mr M’s son but denied that criminal charges were being pursued. Rather than seeking the assistance of the authorities, associates of Mr M and his son continue to pursue DBY16 by making enquiries about his whereabouts.

(4)    The persecutory harm feared by DBY16 is because of (a) imputed political opinion on account of his brother’s involvement with the BNP, (b) membership of the social groups, being individuals who have held information (the witness of corruption) adverse to the interests of the Awami League/political parties in Bangladesh, (c) BNP landowners living under the Awami League rule, and (d) failed asylum seekers who departed the country unlawfully.

12    The representative also addressed the following issues raised at the second Tribunal hearing:

(1)    Why DBY16 did not vote or engage with the election process in 2008. DBY16 explained that he did not vote because he did not have a voter ID card for Bangladesh and could not get one because of difficulties in the area at the time he tried to enrol. The representative referred to country information concerning the levels of fraud and corruption in the process which, it was submitted, supported DBY16’s evidence.

(2)    The land obtained by his father could possibly have been obtained unlawfully and further the land has subsequently been reclaimed by the disputing party so that the situation appears to have resolved itself. The representative submitted that DBY16’s evidence was that he was young when his father bought the land and he had second-hand knowledge of the circumstances. Based on knowledge obtained from the family, the land acquisition was not in any way unlawful or fraudulent. He understood that his father had all relevant papers but is not in a position to comment on perceived or actual legality of the matter. DBY16 disputed that the issue was resolved but rather, Mr M having occupied the land and harassment directed towards his family had diminished. The fact that persecutory behaviour towards the family has temporarily abated does not mean that the real risk of harm is in any way reduced. DBY16’s return to Bangladesh could potentially be perceived as a threat to the status quo and DBY16 could be pressured or obliged to act on behalf of his family and pursue their loss of the land.

(3)    Suggestions that DBY16’s brother has not returned to Bangladesh because he is unable to do so and not because of fears of persecutory harm. The representative noted that this was predicated on the possibility that DBY16’s brother’s visa in Saudi Arabia or passport had expired and he could not easily exit the country and return. DBY16 submitted that to the best of his knowledge his brother had the required papers and his failure to return to Bangladesh since 2006 was due to fears for his safety. His brother remains in contact with BNP members in their local area, that was how he obtained the letter which had previously been provided in post hearing submissions.

(4)    Concerns about the level of detail provided by DBY16 about his brother’s involvement with the BNP and lack of evidence substantiating these fears. The representative confirmed DBY16’s brother’s title as the BNP’s Upazila Collective member for the local area and that his duties included publicising local BNP meetings and seminars and extended to delivering mail and items for the BNP. The representative expressed concerns that DBY16’s attempts to provide details at the Tribunal hearing had not been accurately interpreted, but with limited English, DBY16 was not aware of the issue on the day. Further details included that this brother’s title in the BNP was as the organizational editor and his duties included publicity for the party in the Upazila and organising and recruiting new activists. DBY16’s previous description as “Union leader” had been because he did not fully understand his brother’s role. Only after making further enquiries in recent months had he gained a full understanding of his brother’s title and role within the BNP. Apart from generally supporting the BNP, DBY16 has never claimed to have been directly or informally involved with the BNP nor concerned in his brother’s work for it. His claims to fear persecutory harm stem from imputed political opinion which also manifests as retributory harm and attacks for the political activities of his brother.

13    The representative provided further country information which was said to support DBY16’s claims.

Tribunal

14    On 11 October 2016, the Tribunal set aside the delegate’s decision to refuse to grant DBY16 a Protection (Class XA) visa and substituted a decision to refuse to grant him a Temporary Protection Class (XD) visa. No objection is taken to the substitution.

15    In its decision record (or DR) at [6], the Tribunal found that, by operation of s 45AA of the Migration Act 1958 (Cth) and reg 2.08F of the Migration Regulations 1994 (Cth), from 16 December 2014, DBY16’s application was taken to be, and to have always been, an application for a Temporary Protection (Class XD) visa notwithstanding that the delegate refused to grant a protection visa. It proceeded on that basis.

16    In a broad sense, the Tribunal had concerns in relation to DBY16’s credibility. It found that DBY16 “tended to draw on established facts … and misconstrue and exaggerate these to form the basis of his protection claims”: DR[23].

17    In relation to DBY16’s political profile, the Tribunal:

(1)    Noted submissions that, apart from generally supporting the BNP, DBY16 did not claim to be directly or formally involved with the BNP or the work of his brother and while, at the second Tribunal hearing, he could identify the name of the local BNP candidate in the 2008 parliamentary elections, he did not vote because he did not have an ID card and he was vague about when he applied for one: DR[25]-[26].

(2)    Noted that DBY16 had consistently claimed that Soleman had a local political profile as a BNP supporter/member and variously expressed his involvement as being a “very active supporter”, a member of the BNP at Upazila level and vice president of the Union branch. The Tribunal also noted his evidence to the first Tribunal concerning his understanding of Soleman’s activities and considered a copy of a letter dated 25 November 2015 in English which purported to be from the Secretary of the BNP’s Upazila Committee in the relevant area which is referred to at [10(2)] above. The Tribunal noted that it had alerted DBY16 to country information about the high incidence of document fraud in Bangladesh and that he responded that he had contacted Soleman who had asked his former colleagues to prepare the letter. The Tribunal had concerns about the provenance and reliability of the letter’s contents and found it unclear why DBY16 had not sought further information from Soleman about his past profile and activities. The Tribunal queried why it had been necessary for Soleman to leave Bangladesh in October 2006 when the party continues to have a branch operating in the local area in late 2015. Accordingly, the Tribunal placed little weight on the letter: DR[27]-[30]. The Tribunal found that there was little by way of detail or substance to support DBY16’s claims about his brother’s political profile in Bangladesh, despite ongoing contact with Soleman who, it is claimed, continues to have some political contacts in Bangladesh. The Tribunal found Soleman’s failure to return from Saudi Arabia since late 2006 ambiguous because, although DBY16 claimed that there was no legal reason preventing Soleman’s return as he has a valid passport and visa suggesting that his reason for not returning was political, there is no supporting evidence for that. Accordingly, the Tribunal placed little weight on Soleman’s presence in Saudi Arabia: DR[31].

(3)    Concluded at DR[32], that evidence about Soleman’s political profile as a BNP office bearer “weak and inconclusive” and went on to say:

... the Tribunal accepts that the applicant, his brother and other family members at least favour the BNP, and are perceived as such. It also accepts, on the basis that it is plausible though far from certain, that Soleman was a member (or ‘effective member’ of the BNP in [name redacted] Upazila. However, the Tribunal does not accept on the limited available evidence that the applicant’s brother held a leading position, even at the local (union parishad) level; that he left Bangladesh in late 2006 for political reasons; or that he has remained outside Bangladesh for such reasons. It follows that the Tribunal does not accept that the applicant has some elevated political profile through his association with Soleman.

18    In relation to the property dispute and the allegation that the Awami League targeted the applicant’s family, the Tribunal stated its concerns at DR[34]. They were in summary:

(1)    It was curious that DBY16 had details of the reassurance given by the two brothers that they were authorised to act for the third brother, but had no other details of when the transaction occurred or other basic details about it.

(2)    DBY16 could not produce any documentary evidence relating to the land or give meaningful insight as to where the papers might be. While there is no requirement for an asylum seeker to provide documents to substantiate protection claims, DBY16 relies heavily on the contested land title so that even if he could not provide documents such as the sale contract or title deed or any form of registration, the Tribunal would expect the family to have some knowledge of their whereabouts. The Tribunal was not satisfied that DBY16 or any of his family members had made any real effort to document their legal entitlement to the land.

(3)    Even taking DBY16’s account at face value, the central issue is the legality of the transfer. The 29 August 2016 submissions indicate that that land has been partially taken over by Mr M but the rest of the land is unaffected. This lends weight to the view that any dispute is simply about a contested sale and the aggrieved party would have recourse to the courts or other official channels.

19    At DR[35], the Tribunal concluded:

In light of these concerns, the Tribunal accepts that the applicant’s family owns property in their village, and that there has been some kind of dispute over a parcel of land that his father bought many years ago. However, the Tribunal does not accept that the dispute escalated into some broader conflict with the applicant’s family or that it has taken on a political character. It reaches this conclusion in view of the very limited available evidence about the land dispute (details about the sale and lack of supporting documentation), and the fact that the applicant’s mother continues to live in the family’s (undisputed) other property.

20    The Tribunal noted the claim that the family started to be harassed by Awami League members following the election in December 2008, mainly due to Soleman’s continued BNP membership (even though he was in Saudi Arabia) and the family’s imputed political opinion as his family members. The Tribunal found this claim to be “very general in nature”, and “mainly served as a preface” to the claim that the Awami League harassed the family over the land. Given the Tribunal’s findings that Soleman was not a BNP office bearer and the family was not imputed with a greater political profile than being BNP supporters, the Tribunal did not accept that they were harassed in early 2009 : DR[36]-[37].

21    The Tribunal noted the claims concerning the linkage between the Awami League activists who targeted the family seeking revenge for Soleman’s “torture” of them and the land dispute, with Mr M being part of the group that pestered the family. The claims were that there was continuous harassment including public verbal harassment (without physical violence); that by 2010, there was harassment of DBY16’s father at the general store demanding payment of money to Mr M for the property; that the death of DBY16’s father in 2010 had been contributed to by the stress and anxiety from Awami League extortion; that activists (with Mr M) came to the family home in incidents in early 2009, January 2010 and early 2011 demanding that the family give up the land or pay a fee (showing that Mr M was associated with the Awami League): DR[38]-[40].

22    The Tribunal was not satisfied as to the cause of death of DBY16’s father and had significant doubts about these claims because:

(1)    The regularity of the visits, the specific amount demanded at the beginning of each year and the linkage with the amount of the value of the land suggest routine rent payments (whether linked with the land dispute or not) rather than political harassment or extortion. DBY16 responded to this that the visits were unpredictable.

(2)    These events occurred over a number of years; it is striking that the family remained in the home throughout.

(3)    It was difficult to believe that Awami League figures are so motivated by their enmity towards Soleman to doggedly pursue his family years after he departed Bangladesh. While country information indicates that Bangladeshi politics are volatile and often violent, there was no persuasive material to suggest that Awami League activists targeted the families of BNP members over a sustained period.

(4)    In relation to the attack in early 2011 (after DBY16’s father died) DBY16 gave the first Tribunal specific details of those family members who had been present but when asked questions about it by the second Tribunal DBY16’s response was vague about who had been present and that caused the Tribunal to doubt the truthfulness of the claims.

(5)    At both hearings, DBY16 said the family went to the police after that incident, but the police did not record their complaint because the Awami League assailants had called the police beforehand but he could not explain how he knew that.

(6)    At the first Tribunal hearing, DBY16 claimed for the first time that he took over his father’s shop after his death in May 2010 and Awami League cadres started to confront him. He gave details of an incident in which they inquired after Soleman, demanded money and vandalised the shop. His reason for not making this claim earlier was that he had been stressed while in detention. The Tribunal queried why, given the popularity of the BNP and Soleman’s absence, the Awami League had such intense interest in him and his family. DBY16 responded that the BNP leaders are in prison and there is simply not enough room in prison for everyone. The Tribunal queried why, if the Awami League were intent on extorting his family, they had not targeted the shop previously to which DBY16 responded that his father used to give the money when he was alive. The Tribunal found this comment suggested he was referring to routine protection money rather than more serious extortion and violence.

See DR[41]-[44].

23    The Tribunal concluded that it found the entirety of DBY16’s claim problematic and it was difficult to believe that Soleman’s profile as a BNP activist (or a person whom the Awami League claims “tortured” them while Solemon was in power) led Awami League cadres to target and harm other family members: see DR[45].

24    The Tribunal addressed country information included in post-hearing submissions concerning the “profile of targeted BNP individuals” which contends that political violence engulfs not only leaders and prominent activists but also thousands of opposition members. It stated that it found nothing in these materials to indicate that the Awami league cadres, the authorities or anyone targets and seriously harms (through extortion, physical violence or other means) the parents and siblings of BNP supporters or activists, including those living abroad who maintain some links with the BNP: DR[46]. Country information indicates that protection rackets and extortion are frequent in Bangladesh and the Tribunal accepted that DBY16 may have drawn on experiences that he and his father may have had of demands for protection money from time to time. It did not accept that there were any heightened demands or risks after the death of his father or for any reason linked with Soleman or the land dispute. While DBY16 may have paid some protection money or bribes in connection with the shop, the Tribunal did not accept that that involved harm or threats amounting to persecution or significant harm or that such practices were the cause of the shop closure either during 2010 (as he recently claimed) or in September 2012 (as he recorded in his protection visa application form): DR[47].

25    The Tribunal then considered DBY16’s accounts of the incident in August 2012 in the protection visa application, the first and second Tribunal hearings and the BNP letter, including references to the injury caused by the throwing of the brick, whether DBY16 suffered an injury to his elbow or hand in the incident and the identification of Mr M’s son as the person injured by the brick. It also addressed the incident in 2012 in which DBY16 claims to have confronted Mr M’s son about the harassment and beaten him up and DBY16’s failure to mention it in his protection visa application: DR[48]-[54]. The Tribunal queried why – given the claimed links to the Awami League – Mr M has not brought legal action for the land or the assaults and why DBY16 had not made any enquiries about that, which, in the Tribunal’s view, cast doubt on whether he had been involved in any such incidents: DR[56]. The Tribunal stated that it did not draw any adverse inferences from DBY16’s failure to raise the claimed attempted suicide earlier than he did, but it did not accept that his claim to have suffered depression around this time was evidence of what triggered it and it did not allay the Tribunal’s concerns about the truthfulness of DBY16’s claims about the land dispute. It did not accept his claim that he went into hiding at his sister’s home: DR[57]-[58]. It also rejected his claim that, three and a half years after he left Bangladesh, the cadres were still harassing his mother and threatening to paralyse him if he returns on the basis that it lacks credibility. The Tribunal did not accept that DBY16’s claims to past harm and adverse attention were truthful: DR[59].

26    The Tribunal accepted that DBY16 does not hold a Bangladeshi passport and he departed Bangladesh illegally by boat: DR[60]. It accepted that DBY16 and his family prefer the BNP and that Soleman may have been a member of the party before his departure for Saudi Arabia in 2006 but it did not accept that DBY16 had any political profile as an individual or through his association with his brother or his family. It accepted that his family may have had a long-term dispute with some neighbours due to questions about the legality of the land purchase but it did not accept that this was political in nature, that his neighbour enlisted Awami League cadres to support his case and put pressure on the family or that the Awami League cadres use this as an excuse to punish the family for Soleman’s past political profile or treatment of the cadres. The Tribunal did not accept that the neighbour, acting alone or with the assistance of Awami League activists, extorted money from the family, robbed them, threatened to expel them from the land, forced the closure of the family shop or harmed them physically or psychologically. The Tribunal accepted that DBY16 may have drawn on some aspects of a land dispute when presenting his claims (such as disagreements over the use of land or payment of compensation) but it rejected the claims about the seriousness of the conflict or its political character: DR[61]-[62].

27    The Tribunal did not accept that DBY16 was involved in incidents as a result of which Mr M’s son was injured either with a punch in the face or a brick that hurt his leg or that DBY16 suffered any injury during any such incident: DR[63]. It did accept that, like his father, DBY16 may have had to pay some protection money or bribes, including potentially to criminals associated with the Awami League, as part of the operation of the shop but it was not satisfied that this amounted to serious harm or that these practices led to closing the shop: DR[64]. It also did not accept, on the available evidence, that DBY16 had any mental health issues in relation to the claims or that he had ongoing mental health issues that are relevant to his protection claims: DR[65]. It did not accept that he had been in hiding for three or four months before his departure or that he left Bangladesh in order to avoid harm by the Awami League, or Mr M and his family or others for any reason associated with the protection claims: DR[66].

28    The Tribunal said that it was difficult to engage DBY16 about his future conduct if he were to return to Bangladesh, as he stated that he cannot contemplate returning there. It found, on the limited available evidence, that he would return to his home area where his mother and other close relatives live: DR[69].

29    In assessing the factual claims against the Refugee Criteria, at DR[70], the Tribunal noted that DBY16’s claims to a well-founded fear of persecution arose from (a) Soleman’s high-level involvement with the BNP; (b) his family’s traditional support for the BNP; (c) DBY16’s support for the BNP; and (d) DBY16’s association with his family and Soleman. At DR[71] the Tribunal accepted that DBY16’s family might have a land dispute with neighbours and that the family business may have to pay some protection money, perhaps to Awami League cadres, but it did not accept that these circumstances were for political reasons or that they involved harm amounting to persecution. It rejected all of his other claims. The Tribunal did not accept that if DBY16 returns to his home area now or in the reasonably foreseeable future that there is a real chance that he will face serious harm amounting to persecution for the reason of the fact that he may prefer the BNP, or any other associations through his family, or any land dispute, or any past events, so that the question of relocation does not arise: DR[72]-[73].

30    In relation to the claim of being part of a social group of “individuals who have held information (the witnessing of corruption) adverse to the interests of the Awami League”, the Tribunal found that as it had rejected DBY16’s claims that his family had experienced extortion (due to any political profile, land dispute or combination of these) carried out by the Awami League or its associates, it did not accept that he holds information about corrupt practices that goes beyond general knowledge or rumours. While it accepted that there may have been payments of protection money in the past, it did not accept that there were factors (such as the quantum of money or any threats) that made those significant. Further, based on DBY16’s own evidence about his uncertain plans if he returns to Bangladesh, the Tribunal did not accept that he will feel compelled to expose corruption or take any similar action: DR[77].

31    In relation to the claim of being part of the social group of “BNP landowners living under Awami League rule”, the Tribunal noted that DBY16 is the youngest of four sons who has lived outside Bangladesh for several years and there is no evidence that he has title over or de facto responsibility for the family land (or the disputed parcel). It therefore did not accept that he is a “BNP landowner” or perceived as such: DR[78].

32    The Tribunal considered that the claims referred to at [30] and [31] above to be “repackaging” of aspects of the existing protection claims based on political opinion (mainly imputed) and personal circumstances and it was unnecessary to assess whether such particular social groups existed in Bangladesh, whether DBY16 is a member of one of them or whether he has a well-founded fear based on such membership: DR[79].

33    In relation to the failed asylum seeker who departed Bangladesh illegally claim, the Tribunal referred to the submission dated 5 November 2015 drawing on the press report in the Sydney Morning Herald and what might occur if DBY16 were to be detained and punished, in light of Bangladesh’s poor humans rights record and prison conditions. It also referred to the post-hearing submission that it was a “factual matter” that it is offence under Bangladeshi law to depart the country unlawfully and that those convicted may face up to one year in prison or a fine. The Tribunal stated that there is no country information to support the “factual matter”, although it possibly refers to press reports in February 2016 about a draft bill to replace existing passport law (which relates to the misuse of passports) and there is no information that that law had passed. More importantly, there is no evidence of persons departing Bangladesh illegally, with or without passports, or overstaying while abroad, or unsuccessfully seeking asylum abroad, facing punishment under passports or any other laws for those reasons: DR[80]-[82].

34    The Tribunal accepted that DBY16 does not have a passport and if he were returned to Bangladesh, there was a real chance that the authorities would become aware of his illegal departure from the country in December 2012. However the Tribunal found that there was no persuasive evidence to indicate that the authorities are punishing illegal immigrants. It noted DFAT’s July 2016 Country Report which stated that a significant number of Bangladeshis continue to seek higher wages overseas. As of early 2016 there were an estimated 8.6 million Bangladeshi immigrants worldwide and Bangladesh received over USD 13 billion in remittances in 2015, which accounted for approximately 12% of its gross domestic product. Those workers include people who hold valid visas, those who are subject to work contracts, those who overstayed visas and illegal immigrants. The Tribunal was confident that if Bangladeshi authorities were punishing Bangladeshis who departed illegally this would generate reports in Bangladesh and abroad. It found “strong support” in DFAT’s July 2016 guidance that Bangladesh accepts both voluntary and involuntary returnees and there is a program that provides assistance to returnees in cooperation with the returning country and the government of Bangladesh. Recent returnees from the UK had not been subjected to any adverse attention. Bangladesh did insist on verifying the identity of returnees. Authorities may take interest in high-profile returnees who have engaged in political activities outside Bangladesh but DFAT assesses that most returnees including asylum seekers are not subjected to adverse attention. Accordingly the Tribunal was not satisfied that DBY16 faced a real chance of harm amounting to persecution because of his departure or return to Bangladesh and there are no factors, such as any high-profile political activities in or outside Bangladesh, that suggest authorities might have an adverse interest in him at all: DR[83]-[86].

35    Considering DBY16’s claims individually and cumulatively, the Tribunal did not accept that there was a real chance that he would face serious harm on any convention ground including any political association or his membership of any particular social group such as failed asylum seekers: DR[87].

36    The Tribunal then turned to assess whether, on the evidence before it there was a real risk that DBY16 would suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Bangladesh; that is the complementary protection basis. It was not satisfied that there were substantial grounds for believing that: DR[88], [91]-[92].

37    The Tribunal noted that country information indicates that there are generally high levels of political violence in Bangladesh both between and within the major parties but its findings about DBY16’s political interests suggest strongly that he does not face a real risk of significant harm arising from those circumstances. In light of its previous findings it was also not satisfied that the land dispute and the conduct of the family’s business would expose him to such a real risk: DR[89].

38    The Tribunal noted that country information also indicates that there are security and law and order problems in Bangladesh including that thugs associated with the ruling Awami League are responsible for some general criminality and protection rackets and that they can and do select their targets based on political allegiance at least at a local level. However for the reasons previously given, the Tribunal did not accept that DBY16 was in the past or will in the future have an elevated risk due to any political leanings. Insofar as his claims relate to the general security in Bangladesh, s 36(2B)(c) of the Migration Act provides that there is not taken 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 and the Tribunal was so satisfied: DR[90].

39    The Tribunal concluded that DBY16 was not a person of whom Australia has protection obligations under either s 36(2)(a) or s 36(2)(aa) of the Migration Act: DR[93]-[95].

Federal Circuit Court

40    DBY16 filed an application for judicial review of the Tribunal’s decision in the Federal Circuit Court within time. An amended application was filed on 17 February 2017. It contained three grounds, but only the first two were relied on at the hearing as follows:

1.    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.

Particulars

(a)    The Tribunal accepted that the applicant, his brother and other family members at least favour the BNP, and are perceived as such [32].

(b)    The Tribunal did not accept that the applicant had some elevated political profile [32], or ‘any political profile’ [61] nor an ‘adverse political profile’ [72].

(c)    Country information provided to the Tribunal in the applicant’s written submissions included evidence that it is not just leaders and prominent activists who are being targeted. Human Rights Watch in March 2015 indicated that there have been thousands of opposition members across Bangladesh arrested (Green Book p.38).

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

Particulars

(a)    The applicant claimed to fear that AL activists or members, or the Bangladeshi authorities, would detain, extort, abuse and/or kill him if he goes back to Bangladesh.

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

(c)    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.

41    It appears from the primary judge’s reasons that DBY16 had legal representation in the judicial review proceedings.

42    In relation to the first ground, the primary judge considered the express language of article 1A of the Refugees Convention: J[13]. His Honour then noted DBY16’s complaint that while the Tribunal accepted that he and his family at least favoured the BNP, the Tribunal narrowed the test that was to be applied for the purposes of s 36(2)(a) and the Refugees Convention by determining that he did not have some elevated political profile, an adverse political profile or any political profile at all: J[14]-[15].

43    The primary judge accepted that the phrase “political opinion” as used in the Refugees Convention is a broad one and not limited to membership of a political party or support for a particular party or leader. However, a finding that DBY16 has a political opinion says nothing about whether he had a well-founded fear of persecution by reason of that political opinion and noted that the Tribunal considered that matter at DR[70]-[72]. At DR[73], the Tribunal did not accept that if DBY16 were returned to Bangladesh now or in the reasonably foreseeable future he would face serious harm amounting to persecution for the reason that he might prefer the BNP or any other association through his family: J[16]-[18].

44    The primary judge said that it was for DBY16 to establish that there was a real chance of persecution on political grounds. It might well have been the case that there was material before the Tribunal that might have led to a different conclusion, but that is not the test. It is for the Tribunal to make the findings of fact that need to be made on the application before it. The Tribunal found the facts and there is nothing that appears from the Tribunal’s reasons, or from the argument before the primary judge, that suggests that the Tribunal’s fact-finding in those respects was illogical or irrational or that the result arrived at by the Tribunal was otherwise unreasonable. The first ground did not reveal jurisdictional error on the part of the Tribunal: J[19]-[20].

45    In relation to the second ground, DBY16 submitted that the Tribunal fell into error because it failed to take into account a relevant consideration. The primary judge accepted that to succeed on that ground, it is generally necessary to demonstrate that the material said not to have been taken into account was material that the Tribunal was otherwise required to take into account, or using the language of Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, a mandatory consideration. Here, the Tribunal was required to take into account the latest country report in respect of Bangladesh by reason of the ministerial direction: J[21]-[23]. The primary judge found that it was clear from the decision record that the Tribunal took that information into account. What it did with that information and the weight it gave it and what influence it might be permitted to have on the Tribunal’s determinations was, generally speaking, a matter for it. Accordingly, no jurisdictional error arose: J[24]-[26].

46    The primary judge dismissed the application for judicial review filed on 17 February 2017 and ordered DBY16 to pay the Minister’s costs in a fixed amount.

Appeal to this Court

47    The appellant filed a notice of appeal against the decision of the Federal Circuit Court. The notice of appeal set out two grounds of appeal, which were (as written):

1.    Hon [primary judge] of the Federal Circuit Court failed to hold that the Tribunal committed a jurisdictional error when it failed to apply the correct test of persecution in relation to the Complementary Protection Visa Provision contained in section 36(2) (aa) of the Migration Act 1958. The AAT failed to separate the claim to be refugee and fear of harm test for the provision of the Complementary Protection.

2.    Hon 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 understand how the BNP supporter persecuted by Awami League supporter and police. I was denied procedural fairness when the Tribunal made opinion based on assumption and possibilities. The Tribunal failed to assess the current situation in Bangladesh. Where thousands of BNP workers are arrested recently and harassed by the Awami League Government Authority. In assessing danger to me the Tribunal undermined the danger I will face if I compelled to return Bangladesh as a returned Asylum seeker.

48    The appellant also filed an affidavit in support of his notice of appeal. That affidavit stated (as written):

1.    I am the Appellant of the Notice of Appeal Application.

2.    The [primary judge] dismissed my judicial review application BRG973/2016 without giving any reasonable grounds.

4.    There were arguable grounds to the judicial review application, but unfortunately the federal Circuit Court Judge failed takes into account all relevant grounds when making decision.

5.    I believes that the Federal Circuit Court breached the rules of natural justice and procedural fairness when making its decision.

6.    I do believe and stated in the brief description that I have genuine fear of persecution. If I am compelled to go back to Bangladesh. I will be persecuted by the present ruling government. Relocation is not possible in any part of Bangladesh; I have no genuine protection for my life.

7.    I appeal to the Court to reconsider my case for complementary Protection.

7.    The [primary judge] failed to identify the error made by the Administrative Appeals Tribunal.

…

Will provide more details later.

49    DBY16 did not file submissions and, as noted above, was not legally represented at the hearing. The Minister filed submissions.

Consideration

50    The Minister submitted that DBY16 would require leave to rely on the grounds in his notice of appeal because they are not coterminous with the grounds relied upon at first instance, relying on VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588; [2004] FCAFC 158 at [46].

51    I accept that leave should not, without good reason, be given to raise on appeal a ground or argument that had not been considered by the primary judge. However, an appellate court does retain a discretion to allow a new argument to be raised on appeal where it is expedient in the interests of the administration of justice to do so: see Sun v Minister for Immigration and Border Protection (2016) 243 FCR 220; [2016] FCAFC 52 at [89]-[90].

52    The Minister characterised the first ground of appeal as a complaint that the primary judge erred by failing to hold the Tribunal committed a jurisdictional error because it failed to apply the correct test in relation to the complementary protection criterion (s 36(2)(aa) of the Migration Act) and conflated the refugee and complementary protection “fear of harm” tests (ss 36(2)(a) and (aa) of the Migration Act).

53    The Minister submitted that the Tribunal’s decision record illustrates that it did understand the refugee criterion and complementary protection criterion as discrete; it undertook its assessments of DBY16’s claims regarding each criterion separately; identified the correct test for the purposes of complementary protection and applied that test to the appellant’s case.

54    I accept that this ground was not raised in the Court below and that leave should not be granted to raise it on appeal because it lacks merit so that justice does not demand that leave be given. It is plain from the summary of the Tribunal’s reasons set out above that it considered Convention claims and complementary protection claims separately. Insofar as the Tribunal relied on its factual findings in the context of Convention based harm in concluding that the statutory criteria for complementary protection were not satisfied, it committed no jurisdictional error in doing so: see SZSHK v Minister for Immigration and Border Protection (2013) 138 ALD 26; [2013] FCAFC 125 at [32].

55    The Minister submitted that the second ground of appeal did not establish jurisdictional error. In relation to the claim that the Tribunal “failed to understand how the BNP supporter persecuted by Awami League supporter and police”, the Tribunal duly considered DBY16’s claims and evidence concerning his fear of harm based on his political opinion and, on the evidence, found that DBY16 did no more than favour the BNP and was perceived as such. Nothing in the country information indicated that merely preferring the BNP over the Awami League gives rise to a real chance of persecution on political grounds. Nor did the country information indicate that Awami League cadres, the authorities or anyone else targeted family members of BNP supporters or activists.

56    I accept that submission. The Tribunal considered DBY16’s claims in exhaustive detail. Insofar as this element of the ground traverses grounds 1 and 2 of the application to the Federal Circuit Court, I perceive no error in the primary judge’s reasons for his decision to reject those grounds and dismiss the application.

57    In relation to the assertion DBY16 was denied procedural fairness when the Tribunal “made an opinion based on assumptions and possibilities”, the Minister submitted that it is unparticularised and raises no arguable case. I accept that submission and leave to raise that element of the ground should be refused.

58    In relation to the third assertion that the Tribunal “failed to assess the current situation in Bangladesh” and “undermined the danger [DBY16] will face” if he were to return to Bangladesh as a failed asylum seeker, the Minister submitted that the ground is factually misconceived and seeks impermissible merits review. Having regard to the summary of the Tribunal’s reasons and its use of country information, I accept the Minister’s submission and refuse leave to rely on this ground.

59    For completeness, the material contained in DBY16’s supporting affidavit is, in my view, no more than an invitation to impermissible merit review and does not disclose appellable error by the primary judge.

Conclusion

60    For the reasons set out above, insofar as leave was required to raise new grounds, that leave is refused and the appeal should be dismissed.

61    The Minister made an application for a fixed cost order in the amount of $3,160 which was supported by an affidavit sworn by the Minister’s legal representative who appeared at the hearing. I am satisfied that it is appropriate to make such an order.

Associate

Dated:    7 November 2018