FEDERAL COURT OF AUSTRALIA

WZAVM v Minister for Immigration and Border Protection [2019] FCA 839

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed with costs.

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

REASONS FOR JUDGMENT

(Revised from the transcript)

ALLSOP CJ:

1    This is an appeal from orders made by a judge of the Federal Circuit Court of Australia on 29 January 2019 dismissing an application heard on 26 June 2015 for review of a decision of the Administrative Appeals Tribunal (the Tribunal) made on 8 December 2014, which decision affirmed the earlier decision of a delegate of the Minister not to grant the appellant a Protection (Class XA) visa.

2    The appellant is a citizen of Bangladesh. The bases upon which he sought protection in Australia, and various steps that he has taken to date to that end were outlined fully in [3] of the primary judge’s reasons, as follows:

The background to the Judicial Review Application is as follows:

a)    the applicant, a citizen of Bangladesh, arrived in Australia on 26 July 2012 as an irregular maritime arrival and on 10 September 2012, the Minister lifted the bar under s.46A(2) of the Migration Act permitting the applicant to apply for a Protection Visa;

b)    on 14 November 2012 the applicant lodged an application for a Protection Visa claiming to fear returning to Bangladesh as he feared being persecuted and killed by the Bangladeshi authorities and the Awami League party (“ALP”) because of his political opinion. More specifically, he claimed:

i)    he and his family lived in constant fear that the government would arrest them as they were supporters of the Bangladeshi National Party (“BNP”) who oppose the government and the ALP policies, and the government and the ALP were known for killing and kidnapping members of the BNP;

ii)    his brother fled Bangladesh after receiving threats from the ALP; and

iii)    in 2009 he was attacked by 4 or 5 people from the ALP, was severely beaten, shot in the legs and left for dead;

c)    on 3 September 2013 the Delegate’s Decision was to refuse to grant the Protection Visa;

d)    an application for review was lodged with the Tribunal on 9 September 2013, and the applicant was invited to provide “material or written arguments”, and his representative subsequently provided submissions on the applicant’s behalf;

e)    on 12 November 2014 the applicant and his representative attended a hearing before the Tribunal (“Tribunal Hearing”), and the applicant gave evidence and the representative presented arguments on the applicant’s behalf;

f)    at the conclusion of the Tribunal Hearing the applicant requested, and the Tribunal allowed, an opportunity for further written submissions to be given and by letter dated 26 November 2014 the applicant provided further written submissions to the Tribunal; and

g)    on 8 December 2014 the Tribunal affirmed the Delegate’s Decision not to grant the applicant a Protection Visa.

(Citations omitted.)

3    The gist of the claims were for protection under s 36 of the Migration Act 1958 (Cth) (the Act) based on the Refugees Convention and Protocol as incorporated within the Act, and complementary protection in s 36(2)(aa) of the Act.

4    The appellant claimed, essentially, that he and his family were members and supporters of the BNP political party and, for that reason, suffered, or were likely to suffer, persecution or serious harm from members of the Awami League. Involved in the appellant’s claim was a claim as to a particular attack that took place in 2009. At [4] of his reasons, the primary judge provided a summary of the tribunal’s findings, as follows:

In the Tribunal Decision, the Tribunal:

a)    held that the applicant was not a witness of truth and was not satisfied the applicant told the truth about critical aspects of his claims;

b)    stated the applicant had little or no political profile, and that his evidence did not suggest that he held any significant political profile or that he was actively engaged in the types of activities which may have led to harm, and recognised that while there is significant political violence in Bangladesh, did not accept that the applicant would be involved in, or affected by, any such violence, and further did not accept that the applicant’s past activities and profile with the BNP would attract adverse attention from anyone in Bangladesh;

c)    found the applicant’s evidence in relation to his claimed political activities and knowledge of the BNP was not persuasive, that his evidence in relation to his support activities for the BNP was very vague and limited, that his oral evidence was inconsistent with his statutory declaration, and noted that the statutory declaration “describes a very different political upbringing and level of support and activity,”;

d)    based on country information, found that it was not credible that a person who merely votes for the BNP would be forced to leave Bangladesh;

e)    noted that the applicant’s inability to recall, with some degree of consistency, the date that the applicant’s brother left Bangladesh reflected poorly on his credibility, and further that it was implausible that the applicant would not have discussed some aspects of his brother’s, or his own, situation in relation to the BNP and threats to their safety given the claimed similarity in their political support and experiences, and that this further undermined the applicant’s claims in relation to his brother’s relationship with the BNP, his brother’s political profile and activity, and his brother’s reasons for leaving Bangladesh;

f)    considered that the applicant’s brother’s return to Bangladesh to get married in 2014, noting this was when the ALP was in power, undermined the applicant’s claim that his brother left the country because of threats from ALP members and that he had a profile as an active member or supporter of the BNP;

g)    accepted that the applicant was physically attacked in 2009, however, given its concerns in relation to the applicant’s lack of any significant political profile, overall credibility and vague and limited oral evidence in relation to his support activities for the BNP, the Tribunal did not consider the attack was politically motivated, nor did it accept that his injury heightened his political profile or risk of harm;

h)    was satisfied that the applicant may have attended some BNP meetings and rallies, however, found that the applicant did not vote in the 2008 elections, had never been a member or leader of the BNP, and had never held a position or role within the BNP;

i)    did not accept the applicant’s claim that ALP members continuously ask about the applicant’s whereabouts;

j)    accepted that the applicant’s family had voted for the BNP, but found that they had not undertaken any other activities in support of the BNP, and did not accept that:

     i)    they live, or lived, in constant fear;

ii)    their political profile increased the risk of harm for the applicant;

iii)    the applicant’s brother and father were, or are, members or active members of the BNP; or

     iv)    that the applicant’s brother left Bangladesh after receiving threats from ALP members;

k)    held there was very little chance the applicant would undertake any political activity or support of the BNP if he returned to Bangladesh, and that if he did, such support would be similar to the limited activity undertaken in the past, and therefore did not accept that there was a real chance the applicant would be harmed for reasons of being a failed asylum seeker or suspected of holding anti-regime sentiments, or that he would be:

    i)    kidnapped for extortion;

    ii)    viewed with suspicion;

    iii)    treated as an outsider; or

iv)    regarded as having substantial amounts of money which might otherwise lead him to be harmed if he were to return to Bangladesh in the reasonably foreseeable future; and

l)    there was no real chance the applicant would be harmed if returned to Bangladesh, and that the applicant did not satisfy the criteria in ss.36(2)(a) or (aa) of the Migration Act, and therefore affirmed the Delegate’s Decision.

(Citations omitted.)

5    As a result of those findings, the Tribunal affirmed the delegate’s decision not to grant the appellant a protection visa.

6    In the appellant’s amended judicial review application filed on 28 May 2015, there were three grounds of review, as follows:

1.    The Tribunal made a jurisdiction error by:

(a)    requiring the applicant to show a Convention nexus to the risk of significant harm he faced in his home country in order to fall within complementary protection under s36(2)(aa); alternatively

(b)    the Tribunal failed to consider an integer of the applicant’s claims for protection by failing to consider whether the significant physical harm suffered by the applicant in 2009 gave rise to complementary protection obligations.

Particulars

i.    The applicant claimed that he was owed complementary protection obligations, including as a result of a severe attack in 2009 (CB39).

ii.    At [40], the Tribunal found that “…it does accept that he was physically attacked and sustained injuries in 2009.”

iii.    At [41], the Tribunal held that it “…is not persuaded by the applicant’s assumption that the attack was politically motivated.”

iv.    The Tribunal’s findings at [49-56] under the heading ‘Complementary Protection’ exhibit a strong similarity to its earlier findings at [42-48] under the heading ‘Refugee Convention’. In particular, at [51-53] the Tribunal makes its findings in the context of political opinion, and at [54] in the context of membership of a particular social group.

v.    Further, the Tribunal made no mention of the severe harm previously suffered by the applicant and recognised by it at [40].

2.    The Tribunal, in making adverse credibility findings based in part on the applicant’s confusion between the terms ‘supporter’ and ‘member’, made a legally unreasonable decision.

Particulars

i.    At [31], the Tribunal held “The tribunal accepts that the applicant’s confusion about the distinction between being a member of the BNP and being a supporter of the BNP has led to some inconsistencies between his oral evidence and his statutory declaration and the first written submission made by his representatives…”

ii.    Despite this,

a)    further at [31] the Tribunal held “Nevertheless, the tribunal would expect someone with the applicant’s claimed background to know the difference between a member of the BNP and a supporter of the BNP.”; and

b)    further at [32] the Tribunal held “…the tribunal considers the applicant’s confusion about the distinction between a supporter and member of the BNP indicates a limited knowledge of the BNP and reflects poorly on the credibility of his claim that he grew up supporting the BNP and learning its principles from his father.”

iii.    The transcript (transcript affidavit page 17-18) shows that

a)    the applicant stated that he was confused at the time and was still confused as to the meaning of these two English terms;

b)    that in his understanding a ‘member’ of the BNP was a ‘leader’ of the party, and that he had merely responded to questions from his lawyer without understanding the distinction between the two terms; and

c)    that the applicant’s father had told the applicant that he did not need to join the party, just to support them, which he did.

iv.    In the context of the applicant’s poor English skills, his use of an interpreter, his stated confusion with the terms and his responses to the Tribunal’s questions as above, to draw adverse inferences as to his credibility from this confusion of terms was unreasonable.

3.    The Tribunal failed to accord procedural fairness to the applicant in questioning him about the particular meaning of the symbols on the flag of the Bangladeshi National Party.

Particulars

i.    The transcript (transcript affidavit page 15-16) shows:

a)    The Tribunal asked the applicant “Can you tell me about the BNP flag?”

b)    The applicant replied “I know the symbol is a strand of rice paddy. I do not know about their flag. Flag is just one in Bangladesh. But the symbol is a bunch of rice.”

c)    The Tribunal further asked “They have a specific flag, can you tell me about that?”

d)    The applicant replied “I do not understand.”

e)    The Tribunal further asked “Well the BNP as a party has a flag and particular parts of the flag have a particular meaning and I was wondering whether you could tell me what they mean.”

ii.    The transcript (transcript affidavit page 18) shows the Tribunal told the applicant “You were also unable to tell me about the flag of the party. This is what concerns me about your claims of being a supporter of the party when you don’t have much knowledge of their principles or flag.” The applicant replied “I never felt the importance of these things when I grew up and did not pay attention to them.”

iii.    The Tribunal held at [25-26] that the applicant’s oral evidence, as stated above, inability to describe the BNP flag and inability to identify the symbols “reflected poorly upon his credibility and the reliability of his claims.”

iv.    The flag of the BNP does not appear in the court book and was not shown to the applicant at the hearing.

v.    In circumstances where the applicant required the use of an interpreter, had demonstrated familiarity with the symbolism of the BNP, but had repeatedly told the Tribunal he did not understand its questions in relation to the BNP flag, to ask the applicant the particular meaning of particular parts of the BNP flag and to attach weight to his responses without showing the flag to the applicant was procedurally unfair.

7    Ultimately, only grounds 1 and 3 were pressed at the hearing before the Federal Circuit Court. It is important to understand the lack of pressing of ground 2. Ground 2 had complained about the adverse credibility findings. Before I make any comment on those credibility findings made by the Tribunal, I should make clear, for the benefit of the appellant, that, on a judicial review application and on appeal from a judicial review application, it is never the task of the Court to assess the merits of the factual matters put to the Tribunal. The Court may examine those factual conclusions to assess whether they were made lawfully, that is, legally reasonably. But the lack of advancement of ground 2 in the Federal Circuit Court and it not being pressed here mean that I must accept the factual findings as they were made by the Tribunal. In describing what those factual findings are, the appellant should not take it that they are factual findings of this Court. In short, the appellant was disbelieved by the Tribunal as to virtually all relevant matters other than the fact that an attack took place in 2009.

8    Reverting to what happened in the Federal Circuit Court, the first ground, which mirrors the first ground of appeal here, was that the Tribunal erred in a jurisdictional way by requiring the appellant to show a Convention nexus to the risk of significant harm he faced in his home country in order to fall within complementary protection under s 36(2)(aa) of the Act and, alternatively, failed to consider an integer of his claim for protection by failing to consider whether the significant physical harm suffered by the appellant in 2009 gave rise to complementary protection obligations.

9    The primary judge rejected these matters, in particular, at [28] and [29] of his reasons after referring to the decisions of the Federal Court in SZSGA v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCA 774 and SZTFI v Minister for Immigration and Border Protection [2015] FCA 322; 231 FCR 222. The third ground, being the second ground pressed before the Federal Circuit Court, was an asserted failure to accord procedural fairness to the applicant in questioning him about the meaning of symbols of the flag of Bangladesh. That ground was rejected by the primary judge in circumstances that it is unnecessary to traverse since the matter was not agitated upon appeal.

10    The present appeal was commenced by a notice of appeal filed on 4 February 2019. The notice contained one ground of appeal in the following terms

1.    The Tribunal made a jurisdictional error by:

a)    requiring the applicant to show a Convention nexus to the risk of significant harm he faced in his home country in order to fall within complementary protection under s.36(2)(aa); alternatively

b)    the Tribunal failed to consider an integer of the applicant’s claims for protection by failing to consider whether the significant physical harm suffered by the applicant in 2009 gave rise to complementary protection obligations.

11    The ground is substantially identical to the first ground of the application for judicial review before the primary judge. The appellant did not file any written submissions in support of the appeal. At the hearing, I took the course of having the Minister’s submissions translated for the appellant before the appeal began. Upon the matter being called on for hearing, I asked Mr Swan, appearing for the Minister, to summarise the Minister’s submissions for the assistance of the appellant. I will go to those submissions in a moment and deal with them.

12    After Mr Swan finished his submissions, I asked the appellant whether there was anything he wished to say. He indicated that he did not really know what to say given that he had not been accepted by the Tribunal. He then briefly and succinctly summarised his claims that he would, in fact, face persecution upon return to Bangladesh and indicated that his brother had returned after leaving and had been killed. The appellant said that his only enemies in Bangladesh and the only enemies of his brother in Bangladesh were the Awami League. These submissions, of course, are in the face of the findings by the Tribunal and do not form a basis for concluding any error on the part of the primary judge.

13    The submissions put by Mr Swan in writing and orally are, first of all, in relation to para 1(a) of the notice of appeal, that the Tribunal did not require the appellant to show a Convention nexus for the purpose of complementary protection because nothing in its separate discussion of the two matters suggested that the Tribunal misunderstood the law. First of all, at paras 12 to 14 of its decision, the Tribunal set out the law correctly. Secondly, the Tribunal’s substantive consideration of complementary protection at para 49 and following contain nothing suggestive of a Convention nexus.

14    The reality of the matter is that, as in fact reflected by the appellant’s oral submissions today, his fear of both persecution and serious harm for ss 36(2)(a) and 36(2)(aa) both arise out of his fear of harm from the Awami League. The findings of the Tribunal as to the individual claims are fully set out in paras 51 and 52 of the decision, as follows:

51    The tribunal finds the applicant is not and has never been a member or leader of the BNP, and has never held a position or role within the BNP. The tribunal finds the applicant has not undertaken any activities for or with the BNP since leaving Bangladesh and is not involved with the BNP in Australia. While the tribunal accepts the applicant’s family has voted for the BNP, it finds they have not undertaken any other activities in support of the BNP and the tribunal does not accept that they lived or live in constant fear of being arrested any time, or that their profile increases the risk of harm to the applicant. The tribunal does not accept that applicant’s brother and father were or are members or active members of the BNP, and the tribunal does not accept the applicant’s brother left Bangladesh after receiving threats from AL members. The tribunal does not accept that the applicant was attacked by AL members or supporters or that the attack was motivated by the applicant’s political activity or support for the BNP or any imputed political opinion. The tribunal does not accept that AL members continuously ask about the applicant’s whereabouts.

52    The tribunal does not accept that the applicant’s past activities with the BNP would attract any adverse attention of anyone in Bangladesh. While the tribunal considers there is very little chance the applicant would undertake any political activity or support of the BNP if returned to Bangladesh, given he has not undertaken any activities for or with the BNP since leaving Bangladesh and is not involved with the BNP in Australia, the tribunal considers if he did undertake any political activity or support of the BNP, that support would be similar to the limited activity has undertaken in the past. The tribunal accepts the DFAT Country Report Bangladesh (20 October 2014) assessment that supporters or member of political parties in Bangladesh are not at risk of being arrested or living in fear of violence on a day to day basis due to their political affiliations.

15    Those are the findings of fact based on credit that led to the view of the Tribunal that the appellant had a low profile in the BNP. From the country information available, that conclusion meant that there was not the threshold sufficient for the engagement of ss 36(2)(a) and 36(2)(aa) in either limb.

16    The second ground, found in para 1(b) of the notice of appeal, was an asserted failure to consider the claim based on the attack of 2009. In fact, the Minister submitted that this matter was dealt with in some detail in paras 38 to 41. And then there was consideration of this very attack at para 51, which I have already set out. The Minister also indicated that, given that there was no claim of generalised violence (again, reinforced by what the appellant submitted this morning), it could be concluded that the attack had been considered in relation to complementary protection.

17    The submissions of the Minister should be accepted for the reasons within those submissions, as put in writing and orally. It cannot be concluded that there was any misunderstanding of complementary protection and the common facts that gave rise to the appellant’s asserted fear and the claims under ss 36(2)(a) and 36(2)(aa) meant that the discussion of Convention persecution was the same discussion broadly as was necessary to discuss complementary protection. That was a function of the nature of the claims, not of any misunderstanding by the Tribunal of its responsibilities in looking at complementary protection. As to the second ground, I am persuaded by the reasons of the Tribunal that there was no overlooking of the attack in 2009 in considering the complementary protection of the appellant.

18    For those reasons, the appeal should be dismissed with costs.

Associate:

Dated:    4 June 2019