Federal Court of Australia

CLI16 v Minister for Immigration and Border Protection [2020] FCA 1769

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is allowed.

2.    The orders made by the primary judge on 8 February 2019 be set aside, and in lieu thereof the following orders be made:

(a)    In the nature of certiorari and mandamus setting aside the decision of the Second Respondent dated 5 August 2016 and remitting the matter to be determined by the Second Respondent in accordance with law.

(b)    The First Respondent pay the Appellant’s costs in the Federal Circuit Court proceeding MLG 1881 of 2016.

3.    The First Respondent pay the Appellant’s costs of and incidental to the appeal.

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

REASONS FOR JUDGMENT

ANASTASSIOU J:

1    This is an appeal from the Federal Circuit Court: CLI16 v Minister for Immigration and Border Protection & Anor [2019] FCCA 259. The Circuit Court dismissed the Appellant’s application for judicial review of a decision of the Second Respondent, the Administrative Appeals Tribunal, which had affirmed a decision by a delegate of the First Respondent, the Minister for Immigration and Border Protection, to deny the Appellant a protection visa.

2    For the reasons that follow the appeal is allowed.

Background

3    The Appellant is a citizen of Bangladesh, originally from Firingigandah, Dhaka District. In summary, the Appellant claims that he fears harm if removed to Bangladesh because of his involvement and association with Jamaat-e-Islami (JI), an Islamic political party in Bangladesh. In particular, the Appellant claims he was a “low level supporter” of JI and his older brother held a “prominent role” in JI. He also claims that his older brother was shot and killed in September 2012 by members of the Awami League (AL), a rival political group, because of his involvement with JI. The Appellant says he attempted to make a complaint to the police about his brother’s murder, but he was beaten by members of AL as a result. Following this incident, the Appellant claims he fled Firingigandah in November 2012 to stay with his uncle in Mirpur, which is also in the Dhaka District.

4    In December 2012, the Appellant left Bangladesh for Australia. On 4 May 2013, he arrived in Australia as an illegal maritime arrival. He applied for the visa the subject of this appeal on 11 June 2014. On 27 January 2015, his application was rejected by a delegate of the Minister, following which he applied to the Tribunal for a review of the delegate’s decision.

5    On 5 August 2016, the Tribunal affirmed the decision of the delegate. The Tribunal accepted the Appellant’s brother was murdered by AL members and that the Appellant had a well-founded fear of persecution if returned to his home town. However, the Tribunal concluded that the Appellant was able to safely relocate to a different area of Bangladesh and therefore refused the Appellant’s application for a protection visa.

6    On 2 September 2016, the Appellant applied for judicial review in the Circuit Court. This was followed by an amended application on 20 June 2018 and a further amended application on 13 July 2018. The further amended application set out seven particularised grounds of application. By the date of the hearing several of those grounds had been abandoned. On 8 February 2019, the Circuit Court dismissed the application for judicial review.

Appeal to this Court

7    On 1 March 2019, the Appellant filed a notice of appeal in this Court. On 26 August 2019, the matter came before me for hearing, at which time the Appellant was self-represented and appeared with the assistance of an interpreter. I adjourned the hearing of the appeal and referred the Appellant for assistance from pro bono counsel. I pause in the narrative to express the Court’s gratitude to counsel who appeared pro bono for the Appellant. The contribution to the administration of justice by counsel acting pro bono cannot be overstated. It should also be recognised that the contribution made by pro bono counsel involves a very generous donation in kind, bearing in mind that barristers are sole traders who have only their skill and their finite time upon which to support themselves.

8    The notice of appeal contained only one ground:

1.    The Federal Circuit Court made a legal error in [18] failing to find that the AAT fell into jurisdiction error is not misapplying the two step relocation test (MZACX v Minister for Immigration [2016] FCA 1212 at [35]).

Particulars

a.    The AAT failed to consider whether the relocation of the appellant to another part of Bangladesh is reasonable, in the sense of practicable, having regard to the particular circumstances of the appellant and the impact upon the appellant of relocation to another part of Bangladesh and thereby fell into jurisdictional error.

[errors in original]

9    This ground of appeal was equivalent to Ground 1 of the application for judicial review in the Circuit Court. It focused on the Tribunal’s analysis of the reasonableness of the Appellant relocating elsewhere than his home area in Bangladesh.

10    Before turning to the submissions made by the Appellant and the Minister to this Court, it is convenient to consider the relevant factual findings made by the Tribunal concerning the risk of harm faced by the Appellant in Bangladesh and where he might be able to relocate without being exposed to such risk.

Tribunal’s factual findings

11    The Tribunal accepted (at [83] of the Decision Record) that the Appellant was a “low level” supporter of JI based on his “family tradition”, but that his brother had a “more prominent role”. The Tribunal held that the Appellant had maintained no contact with JI or any interest in the party since being in Australia, and was satisfied he would not resume any political involvement with them beyond his past low level involvement. Further, the Tribunal accepted (at [88]) that AL members had previously attempted to extort money from the Appellant’s family by threats to their family business, which is a local restaurant.

12    The Tribunal also largely accepted the Appellant’s evidence as to the circumstances of his brother’s death, stating (at [88]):

“Though not without some doubt, the Tribunal is prepared to accept that the [Appellant’s] eldest brother was of adverse interest to the local [AL] members, both for his political involvement and for his refusal to meet their extortion demands and that he was subsequently shot and killed by [AL] members or supporters during a JI meeting in 2012.”

13    The Appellant alleged that following his brother’s murder he lodged a complaint against AL with the police and approached a solicitor to see whether any action could be taken. The Appellant gave two versions of the events involved in his complaint being lodged. He also claimed that after he fled, his family were pressured to withdraw the case but that it remained on foot, though he could not provide details of this. The Tribunal did not accept a complaint was formally made (at [107]), though did accept that the Appellant went to the police station with his uncle to attempt to do so and that he took the advice of a solicitor (at [101]-[103]). Further, the Tribunal did not accept that the Appellant would pursue his complaint upon his return to Bangladesh (at [107]).

14    Following the Appellant’s complaint, the Appellant alleged AL members attacked him at his family’s restaurant in or around late 2012. The Tribunal accepted that the Appellant had been consistent about the location of the attack, the identity of the claimed attackers and the events which transpired during and after the attack; namely, that he sought treatment for his injuries at a hospital and did not report the matter to the police (at [113]). The Tribunal also accepted that the Appellant’s father was beaten by AL members and sustained injuries around the same time (at [114]). In relation to both incidents, the Tribunal accepted that they were motivated by AL members becoming aware of the Appellant’s attempt to complain about his brother’s death to the police (at [115]).

15    The Appellant alleged that he then fled his village and went into hiding at his uncle’s house, located approximately 100 kilometres away. After ten days, he returned to his home village, where he became aware that AL members were still searching for him (at [116]). As a result, the Appellant (assisted by his uncle) made arrangements to leave Bangladesh and come to Australia. The Tribunal accepted the Appellant’s account of events in this regard (at [118]).

16    The Appellant claimed that despite him leaving Bangladesh, AL members continued to harass his family (at [119]). In particular, the Appellant claimed his younger brother had gone missing in 2014 and that this occurred after he was harassed by AL members (at [120]). However, the Tribunal did not accept the Appellant’s evidence in this regard (at [121]).

Tribunal’s rejection of well-founded fear outside of village

17    Despite finding that the Appellant’s family did not continue to be harassed by AL, the Tribunal accepted the Appellant’s submission that his past enmity with AL members could be ‘reignited’ in the event he returned to his local area and his presence became known (at [122]). In light of this, the Tribunal asked the Appellant whether he could safely relocate to a different part of Bangladesh, and if so whether it would be unreasonable for him to do so.

18    The Appellant submitted that he was at risk outside of his village. He submitted that Bangladesh is a small country, and as such, AL members would become aware of his location, find him, and kill him (at [123]). This possibility was supported by the fact that AL members had previously found him at his uncle’s house and that the political situation in Bangladesh has deteriorated, with members of JI having been arrested. The Appellant also submitted that relocation was unreasonable as he has little education or work experience, and no family anywhere else in Bangladesh who could provide him support (at [126]).

19    The Tribunal did not accept, based on the Appellant’s complaint to the local police regarding his brother’s murder, AL members would continue to search for the Appellant. Further, the Tribunal did not accept it would become known to AL members if he were to return to Bangladesh. Given the Tribunal did not accept a complaint was actually lodged, it did not consider that the Appellant posed an ongoing threat to AL members and therefore there was no reason for them to continue searching for him several years later (at [125]).

20    Further, the Tribunal found that even if it were wrong, and AL members did continue to look for the Appellant, he could avoid being found “by relocating to an entirely different part of Bangladesh” (at [125]). The Tribunal did not consider the Appellant’s involvement in JI to create a risk of harm elsewhere in Bangladesh to which protection obligations would flow (at [130]). This conclusion was reached on the basis of the Tribunal being satisfied the Appellant would not resume any political involvement or support for JI, and the fact that JI members were not at risk of being arrested or living in fear of violence on a day to day basis due to their political affiliations.

21    Accordingly, the Tribunal concluded (at [132]) that it would not be unreasonable for the Appellant to relocate to a different part of Bangladesh:

For the above reasons, the Tribunal finds the applicant could safely relocate to another part of Bangladesh. The Tribunal acknowledges the applicant’s responses and the submissions made on his behalf that it would be unreasonable to expect him to relocate but the Tribunal does not accept this. The applicant is a young, single man with no dependents. Whereas his low level of education is acknowledged the Tribunal notes he nevertheless has farming experience and since being in Australia has secured and maintained factory employment, both of which would assist him to find employment on return to Bangladesh. Regarding his lack of family elsewhere in Bangladesh, the Tribunal also finds it significant that the applicant was able to travel to Australia where he has lived for several years in the absence of family support. The Tribunal considers it will be an easier proposition for him to establish himself in a new location in Bangladesh where he speaks the language and the Tribunal considers the applicant’s family can travel to visit him elsewhere in Bangladesh so he will not be entirely without support. For these reasons the Tribunal finds it will not be unreasonable for the applicant to relocate within Bangladesh to avoid any harm which may come to him in his local area from [AL members].

Appellant’s submissions

22    The Appellant submitted that the Tribunal erred by failing to consider whether relocation of the Appellant to another part of Bangladesh was reasonable. More specifically, it was submitted that the Tribunal erred by finding that it was not necessary to identify a particular place to which the Appellant may relocate and by not conducting an assessment as to whether it was reasonable for the Appellant to relocate to that particular place.

23    It is an established principle that a person is not owed protection if, despite being at risk in their home area, they can reasonably relocate to a different part of the country where they are not at risk: SZATV v Minister for Immigration and Citizenship [2007] HCA 40; 233 CLR 18 at [19]-[22] (Gummow, Hayne and Crennan JJ); Januzi v Secretary of State for the Home Department [2006] UKHL 5; 2 AC 426 at 440 (Lord Bingham).

24    Whether relocation is possible requires the application of a ‘two-step’ test: see, eg, MZACX v Minister for Immigration and Border Protection [2016] FCA 1212; 161 ALD 73 at [35] (Kenny J). First, whether, objectively, there is no appreciable risk of the feared persecution occurring in another part of the visa applicant’s country of nationality: SZFDV v Minister for Immigration and Citizenship [2007] HCA 41; 233 CLR 51 at [14] (Gummow, Hayne and Crennan JJ). And, second, if there is no appreciable risk, whether relocation is reasonable: Minister for Immigration and Border Protection v SZSCA [2014] HCA 45; 254 CLR 317 at [25] (French CJ, Hayne, Kiefel and Keane JJ). What is "reasonable", in the sense of "practicable", must depend upon the particular circumstances of the person seeking protection and the impact upon that person of relocation within their country of nationality: SZATV at [24].

25    The Appellant submitted that, in the present circumstances, the starting point for the analysis is to identify a particular location in which the risk of harm is insufficient to give rise to a convention risk or a risk that would engage complementary protection obligations, and then to assess the question of reasonableness. The Appellant relied on the following passages in CSO15 v Minister for Immigration and Border Protection [2018] FCAFC 14; 260 FCR 134, in which the Full Court (Tracey, Mortimer and Moshinsky JJ) observed (at [45]-[48]) that:

… A decision-maker will not perform the task required of her or him if she or he simply searches for “a place” within a country of nationality where a particular applicant will not have a well-founded fear of persecution. The decision-maker must assess, on the material before her or him, the place or places to which an individual is likely to return. The first step of the decision-maker’s assessment is to make findings about, at least, one of those places.

If a decision-maker finds the place to which an individual is likely to return is one where the individual’s fear of persecution is well-founded, or where the individual faces a real risk of significant harm, then the decision-maker should determine whether there are any other places to which the individual is likely to return, and then engage in the same fact finding.

It is only if the place or places to which an individual is likely to return are places in which the person has a well-founded fear of persecution or faces a real risk of significant harm, that a decision-maker must look at any other places in the individual’s country of nationality where neither of those kinds of risks exist. That is: places that are new or unfamiliar locations for the individual. These must be places to where it is reasonable and practicable to expect that individual to re-locate, if that terminology is to be used. It is not simply a matter of a decision-maker finding “a place” where an individual might not be exposed to persecution for a Convention reason, or to the risk of significant harm. At this final step, there must be an assessment of the reasonableness and practicability of the particular individual living in that (new) place, as the authorities have explained that assessment.

These will be fact intensive analyses, very much dependent on what an individual’s evidence and narrative is about the place or places in her or his country of nationality to which she or he has historic connections. The slimmer or more tenuous the connection in the past, or the more complex the question of how an individual might live in a region to which she or he has some connections (as in SZSCA), then the more the analysis may need to turn to questions of reasonableness and practicality.

26    The Appellant also relied upon the High Court’s consideration of the two-step test in CRI026 v Republic of Nauru [2018] HCA 19; 92 ALJR 529, in which the Court, consisting of Kiefel CJ, Gageler and Nettle JJ, said:

39.…before a decision maker may properly reject a claim for complementary protection on the basis of the availability of reasonable internal relocation, the decision maker needs reliable information as to the safety and suitability of the place of relocation… Accordingly, depending on the issues and circumstances identified by the applicant, the decision maker not only will need reliable information as to the safety and suitability of the place of relocation but also will need to pay careful regard to the applicant's personal and family circumstances. It is only when and if the decision maker concludes on that basis that internal relocation would be reasonable that the claim for complementary protection may be rejected on that basis.

40. Of course, that does not mean that it will be necessary in every case for a decision maker to identify with precision the proposed place of relocation and undertake the analysis of reasonableness in relation to that precise place. In some cases it may be that the reliable information available to the decision maker demonstrates that the risk of harm of the kind described in Arts 6 and 7 of the ICCPR exists only in one place or area, or a couple or few places or areas, within the applicant's country of nationality, and that elsewhere the country is relevantly risk free. In such cases, it is accurate to say that the burden would be upon the applicant for complementary protection, once sufficiently alerted to the significance of the information available to the decision maker, to present reasons why it would nonetheless be unreasonable to expect the applicant to relocate to any place beyond the affected places or areas. Each case is fact specific and must be dealt with accordingly. The point for present purposes, however, is that treating reasonable internal relocation as a relevant consideration in the determination of a claim for complementary protection is not in any sense impracticable or unfair.

(footnotes omitted)

27    The Appellant submitted that the nature of the inquiry in each case will be informed “by the nature of the claims made by an applicant, and what he or she says about the practicalities of relocation”: SZVRA v Minister for Immigration and Border Protection [2017] FCA 121 at [18] (Markovic J). This is consistent with the oft-cited passage in MZACX at [34], where Kenny J said:

The nature of the inquiry as to the reasonableness of relocation depends on the particular objections raised by the visa applicant to relocation: SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46; 174 FCR 415 at [124], citing Randhawa 52 FCR 437 at 442-443. These objections set the parameters for the Tribunal’s inquiry: MZYXP v Minister for Immigration and Border Protection [2013] FCA 1352 at [61]. The Tribunal’s task is to assess the reasonableness of relocation as regards the applicant by reference to the issues raised by him and on the other material before the Tribunal: AZAEH v Minister for Immigration and Border Protection [2015] FCA 414 at [21]; and NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; 144 FCR 1 at [58], [60]-[61], [68].

28    The remarks of Mortimer J in MZANX v Minister for Immigration and Border Protection [2017] FCA 307 at [55]-[58] are also apposite in this context:

In the context of relocation, detailed consideration of the circumstances “on the ground” in the area proposed for relocation will be required. General statements will be insufficient, because what is in issue is the practical and realistic ability of an individual to re-start her or his life in a new place, without undue hardship…Likewise, the circumstances of that individual – her or his personal strengths and weaknesses, skills, material and family support, will need to be considered in some detail. A broad brush approach will not satisfy the requirements of the task to be performed. In order to determine whether, as a conclusion, relocation is “practicable” and “reasonable” for a particular individual, a level of comfortable satisfaction based on probative material must be reached by the decision-maker about what will face that particular individual and how she or he will cope….

Otherwise, the risk is that the assessment becomes formulaic, and removed from any real factual basis relevant to an individual person arriving in a place such as Kabul: in this case, to live with a partner and young child. That is, in fact, what will occur and there must be a considered attempt to assess what, in a real and practical sense, will happen to that individual and her or his family in those circumstances.

How these inquiries are to be made will be informed, of course, by the nature of the claims made by an applicant, and what he or she says about the practicalities of relocation. This includes what has come to be described as “objections” to relocation. Recently, Markovic J in SZVRA v Minister for Immigration and Border Protection [2017] FCA 121 said at [18]:

Whether a claimant can reasonably be expected to relocate depends upon the framework set by an applicant’s particular objection to relocation.

There is no doubt that the “framework” set by an applicant may be an important factor. Indeed, the appellant submits the reviewer did not pay sufficient attention to the framework set by his adviser’s submissions on the two questions of “insecurity, political instability and social problems” and “unemployment such as to impact his ability to meet his basic needs”. However, it is important to recall that the task of the reviewer is to form a state of satisfaction on the basis of all the material before her or him, including what might reasonably be known because of the decision-maker’s experience and expertise, and the material regularly provided to decision-makers for the purposes of making decisions about Australia’s protection obligations. It is, as the courts have said many times, an inquisitorial task, informed by what an applicant puts forward, but not necessarily confined to those matters.

These passages have been cited with approval in AHK16 v Minister for Immigration and Border Protection [2018] FCAFC 106; 161 ALD 457 at [27] (Mortimer, Moshinsky and Thawley JJ) and BDA17 v Minister for Immigration, Citizenship and Multicultural Affairs [2020] FCA 131 at [10]-[13] (Jackson J).

29    On the basis of the foregoing, the Appellant submitted that in this case it was necessary for the Tribunal to have engaged with a “greater degree of specificity” in determining where in Bangladesh the Appellant could relocate, beyond reference to generic conditions in Bangladesh outside the Appellant’s home district of Firingigandah. The Appellant contended that his need to maintain contact with, and receive support from, his family, the nature of his past employment and the nature of the harm that he feared, required assessment of a prospective area to which he may relocate and of the conditions prevailing in that location.

30    As the Tribunal failed to determine a location or locations to which the Appellant could relocate in Bangladesh, the Appellant submitted that the Tribunal “did not address what was necessary” for its enquiries: SZSCA at [32]-[33]. The Appellant submitted that because this error of law could have affected the outcome of the Tribunal’s exercise of power, the resulting decision of the Tribunal was affected by jurisdictional error and the Circuit Court erred by not so finding.

31    In support of this submission, the Appellant identified three specific bases upon which it said that the Tribunal was in error:

The Federal Circuit Court erred in finding that it was not necessary for the Tribunal to look at particular parts of Bangladesh to which the Appellant could relocate for three reasons:

(a)    first, there was no evidence or material cited by the Tribunal to support an assumption that all locations within Bangladesh could be safely visited by the Appellant’s family and the Tribunal subsequently failed to consider whether the Appellant’s family could visit him at all prospective sites of relocation in Bangladesh ‘as a matter of practical reality’: MZANX v Minister for Immigration and Border Protection [2017] FCA 307 at [70];

(b)     second, the lack of particularity meant that the Tribunal could not properly determine whether farming or factory employment would be available in a given prospective site of relocation. There was no evidence or material cited by the Tribunal to support an assumption that all locations within Bangladesh offered employment opportunities to the Appellant; and

(c)     third, the lack of particularity meant that the Tribunal failed to properly consider that the Appellant could be at risk from members of the Awami League outside of Firingigandah.

32    I will consider the chapeau and each separate contention in turn, after setting out the Minister’s submissions.

Minister’s submissions

33    The Minister accepted that, in determining whether a visa applicant may relocate within their country of nationality, two issues arise for consideration. First, whether there is another part of the country where the applicant would not have a well-founded fear of persecution. Second, whether relocation of the applicant to that other part of the country is reasonable, in the sense of being practicable.

34    The Minister submitted that there was no requirement for the Tribunal to identify a place of relocation at any particular level of specificity. Rather, the analysis may be done at whatever level of generality or specificity the Tribunal deems appropriate. The Minister further submitted that in some instances, relocation may only be appropriate in relation to a specific place or places; whereas, in other situations, relocation may be appropriate to any location within a country other than a specified location where there is a localised risk of harm.

35    The Minister contended that the Tribunal was required to do no more than find the Appellant could safely and reasonably move to another area within Bangladesh. In support of this proposition, the Minister relied on the reasoning of the High Court in CRI026 (Kiefel CJ, Gageler and Nettle JJ at [40]), that it is not “necessary in every case for a decision maker to identify with precision the proposed place of relocation and undertake the analysis of reasonableness in relation to that precise place.”

36    The Minister accepted that the Tribunal did not identify any particular place in Bangladesh to which the Appellant could reasonably relocate. However, the Minister maintained that it was not necessary to do so and, accordingly, there was no error in the way the Tribunal considered and dealt with the first aspect of relocation.

37    The Minister further submitted that consideration of the reasonableness, or practicality, of relocation is undertaken by reference to the particular issues, or objections, raised by the Appellant: see, eg, SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46; 174 FCR 415 at [124] (Tracey and Foster JJ), citing Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 535; 52 FCR 437 at 442-443 (Black CJ). In this regard, it was significant that the Appellant only identified obstacles to relocation in a general way.

38    In this respect, the Minister submitted it was significant that the Appellant only identified obstacles to relocation in a very general way. For instance, in the statement of claims lodged with his visa application, the Appellant did not raise any issues in relation to relocation. Further, in his submissions to the Tribunal, the Appellant claimed that he could not relocate elsewhere within Bangladesh because he had previously been located by AL members and could be again, if he returned to Bangladesh. Most relevantly, during the Tribunal hearing, the Appellant was asked whether there were any reasons he could not relocate to another part of Bangladesh. In response, the Appellant claimed he would be found by the AL because Bangladesh is a small country and further that he was a single man without family support, and had limited education and work experience.

39    The Minister submitted that “these objections set the parameters for the Tribunal’s inquiry”, and “the Tribunal’s task is to assess the reasonableness of relocation as regards the applicant by reference to the issues raised by him and on the other material before the Tribunal”: see MZACX at [34]. Accordingly, having regard to the general way in which the Appellant put his submissions, the Minister submitted that the Tribunal did not err in its assessment of the reasonableness of the Appellant’s relocation. Indeed, the Tribunal expressly identified (at [126]) the matters, or objections, to relocation raised by the Appellant and considered (at [132]) that those circumstances did not make it unreasonable for the Appellant to relocate within Bangladesh. The Minister submitted that therefore the Tribunal’s reasons were both rational and reasonable, as they were responsive to the general claims made by the Appellant.

40    The Minister also responded to the Appellant’s submission that the Tribunal did not have ‘reliable information’ that the risk of harm to the Appellant only existed in one place by directing attention to the Tribunal’s findings. In particular, the Minister referred to the Tribunal’s reasons at [122], in which the Tribunal accepted that the Appellant was at risk in “his local area” on account of the personal enmity with members of the AL, impliedly finding that this risk of harm did not extend beyond the Appellant’s home area.

Consideration

41    I now return to the three particular contentions advanced by the Appellant in aid of the submission that the Tribunal erred by failing to consider whether relocation of the Appellant to another part of Bangladesh was reasonable.

Family support

42    This particular was advanced as follows. The Tribunal is required to consider the family support available on relocation: MZYPW v Minister for Immigration and Citizenship [2012] FCAFC 99; 289 ALR 541 at [19] and [25] (Flick and Jagot JJ). The lack of family support in other parts of Bangladesh were specifically put in issue by the Appellant’s representative before the Tribunal, where it was stated that the Appellant “has no other family support throughout Bangladesh”.

43    The Appellant contended that the Tribunal’s finding that the Appellant’s family could travel to visit him was illogically broad, formulaic, and removed from any factual basis relevant to the Appellant (citing MZANX at [56]). The Appellant submitted that such a finding required a “fact-intensive analysis” (CSO15 at [48]) of where in Bangladesh the Appellant would move to, and whether it would be safe or affordable for the Appellant’s family to travel to visit him.

44    The Appellant argued that there was no factual basis to support an assumption that all areas within Bangladesh (other than Firingigandah) could be safely visited by the Appellant’s family or that it would be viable to do so. By failing to determine whether the Appellant could maintain contact with his family by reference to a particular location, the Appellant contended that the Tribunal could not properly consider whether he would have family support upon relocation.

45    The Appellant further submitted that the Tribunal’s finding that the Appellant had lived in Australia for a number of years, inferentially without family support, is irrelevant to the availability of family support to him in Bangladesh. The Appellant submitted that this finding implicitly assumes that the level of state support in Bangladesh is essentially equivalent to the level of state support in Australia, an assumption that has no apparent evidentiary support in DFAT country information.

46    The Minister submitted that the issue of family support did not, in the circumstances of the present case, give rise to an obligation to consider a location within Bangladesh to which the Appellant may relocate. The Minister pointed out that the Appellant only raised the issue once before the Tribunal, claiming in a general way that “he has no other family support throughout Bangladesh, so…relocation is unreasonable in his circumstances.” The Minister said that there was nothing illogical or irrational about the Tribunal’s reasoning, which was premised on the Appellant having moved to Australia and lived a number of years without family support and that, in any event, the Appellant’s family would be able to travel to visit him elsewhere in Bangladesh.

47    I consider that the Tribunal fell into error by failing to engage in the “fact-intensive analysis” required when assessing whether relocation within Bangladesh was reasonable and practicable. It was not apt to compare the Appellant’s circumstances in Australia, in which he lived without family support, to those that he would experience in an unfamiliar part of Bangladesh. It was also not sufficient for the Tribunal to dispose of the issue by concluding that the Appellant’s family would be able to travel to visit him, without having identified the area in question and considered whether it was reasonable for the Appellant to reside in that area. The Tribunal had to engage with issues such as whether relocation to a place closer to the Appellant’s home village might have facilitated more frequent contact with his family but might have led to a greater risk that the Appellant would come to the attention of his persecutors. Or, alternatively, whether relocation to a place further from the Appellant’s home village would allow the Appellant to maintain, as a matter of practicality, a connection with his family. The failure to do so means that the Tribunal fell into jurisdictional error.

Employment availability

48    The second particular concerned the availability of employment on return to Bangladesh. The Tribunal found that the Appellant “has farming experience and since being in Australia has secured and maintained factory employment, both of which would assist him to find employment on return to Bangladesh”. The Appellant submitted that no evidence or material cited by the Tribunal supported an assumption that all locations within Bangladesh, other than Firingigandah, offered employment opportunities in farming or factory work.

49    The Appellant contended that in order for his prior employment to support a finding that it would be reasonable for the Appellant to relocate within Bangladesh, the Tribunal was required to consider whether farming or factory employment would be available in a given area. The mere proposition that there are many farmers in Bangladesh, therefore the Appellant will experience no difficulty finding employment due to his previous farming experience, was too superficial to ground a finding of reasonableness. The Appellant further contended that a particular location must be identified if the Tribunal is to assess the realistic possibility of him securing employment in that area.

50    The Minister submitted that there was no obligation on the Tribunal to address the Appellant’s likely employment opportunities with the level of specificity contended for in the Appellant’s submissions. The Appellant did not claim that he would be unable to obtain employment – or that he could only obtain certain types of employment – but rather that he “has no job training and has very limited experience.” In those circumstances, it was sufficient for the Tribunal to observe that the Appellant did in fact have prior work experience in diverse settings, and that would assist the Appellant in finding some form of employment on his return to Bangladesh.

51    I accept that the Tribunal’s approach was in fact responsive to the claims made by the Appellant in relation to his prospects for employment. The Tribunal’s obligation, in the particular circumstances, was not to consider what specific types of jobs the Appellant would be eligible for, and whether those were available in a particular location in Bangladesh. Instead, it was required to assess whether it was reasonable and practicable for the Appellant to relocate having regard to his prior employment history and age. In this respect, the Tribunal’s conclusion that the Appellant’s prior experience would assist him to find employment was a reasonable and appropriate assessment of the issues raised by the Appellant in relation to this aspect of the Appellant’s putative relocation.

Risk of AL attack outside Firingigandah

52    The third particular concerned the risk of harm posed by AL members outside Firingigandah. The Appellant submitted that the relocation test is premised on there being particular parts of Bangladesh that are safe. The Tribunal accepted that the Appellant is at risk of harm from local AL activists in Firingigandah. As the AL are Bangladesh’s governing party, the Appellant submitted that it may be inferred that there are significant parts of Bangladesh that may not be safe for him to relocate to. The Appellant submitted that for the Tribunal to reach the necessary state of satisfaction, it was required, but failed, to determine the risk of events in Firingigandah becoming known to AL supporters in a prospective new location.

53    The Minister submitted that no such obligation existed based on the claims made by the Appellant. In any event, the Tribunal expressly considered whether the Appellant was at risk of harm from AL members outside his home area in Bangladesh and concluded that there was only a “remote” chance he would actually be located (at [125]). The Tribunal also considered whether other parts of Bangladesh were safe for supporters of opposing political parties and concluded that alone does not give rise to a well-founded fear of persecution or violence in Bangladesh (at [128]).

54    I am satisfied that the Tribunal addressed the feared harm faced by AL members outside Firingigandah in a comprehensive and meaningful way in its reasons. Indeed, the Tribunal appears to have contemplated that the Appellant could relocate to another part of Bangladesh “far from”, or “entirely different to”, his home area (at [123] and [125]). In the Tribunal’s assessment, this would allow the Appellant to avoid the risk of being tracked down by AL members.

55    While there is no error in respect of this aspect of the Tribunal’s reasoning, it fortifies the conclusion at [47] above, that the Appellant’s concerns about family support were not adequately considered by the Tribunal. There is a dissonance between the Tribunal finding, on the one hand, that the Appellant would be able to avoid the risk of harm from AL members by moving to an area far away from his home area, yet, on the other hand, assuming that the Appellant would be visited and supported by his family. While relocation and ongoing family support are not necessarily mutually exclusive, it was necessary for the Tribunal to consider the practicality of ongoing family support at the place to which the Appellant may relocate. In the absence of an identified area or region to which the Appellant may relocate, any realistic and practical assessment of the reasonableness of such a location was rendered theoretical. Accordingly, the Tribunal erred in failing to consider the question of whether there was an area to which the Appellant might relocate reasonably.

56    It follows from what I have said that the learned primary judge erred in failing to find that the Tribunal had not properly considered whether relocation of the Appellant to another part of Bangladesh was reasonable.

Disposition

57    For the above reasons, the appeal will be allowed and orders will be made accordingly.

Associate:

Dated:    10 December 2020