Federal Court of Australia

DKV16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 716

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed with costs, such costs as agreed or assessed.

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

REASONS FOR JUDGMENT

ALLSOP CJ:

Introduction

1    This is an appeal against orders made by the (then) Federal Circuit Court of Australia dismissing an application for a constitutional writ in respect of a decision of the Administrative Appeals Tribunal made on 24 October 2016: DKV16 v Minister for Immigration & Anor [2019] FCCA 3092 (J). The Tribunal affirmed a decision of a delegate of the first respondent (the Minister) to refuse the appellant’s application for a Temporary Protection (Class XD) visa. The Tribunal was not satisfied that the appellant met the criteria for a protection visa in paragraphs 36(2)(a) or (aa) of the Migration Act 1958 (Cth) (the Act).

Procedural background

2    The appellant’s application for an extension of time to appeal was filed on 9 December 2019, 13 days out of time. The appellant’s need for an interpreter and the desirability of an in-person hearing had necessitated the delay in the hearing of this application due to the COVID-19 pandemic. When the matter was called for hearing on 5 May 2022, the appellant appeared in person with the assistance of a Bengali interpreter.

3    At the hearing on 5 May 2022, orders were made granting an extension of time for the appellant to file a notice of appeal in the form annexed to an affidavit sworn by the appellant on 9 December 2019. The appellant’s affidavit explained that the apparent reason for his delay in filing the notice of appeal was that he was told at the hearing before the Federal Circuit Court to wait for correspondence from the Court before appealing the primary judge’s decision. However, he stated that he later contacted the Federal Circuit Court registry and was advised to apply for an extension of time. In those circumstances, the Minister, properly, did not oppose an extension of time being granted, and accepted that it is open for the Court to find there was a reasonable explanation for the delay.

4    The appellant was then asked to make any oral submissions in support of his appeal. The appellant stated that he did not know what to say. The appellant did, however, indicate that he had expected a solicitor (who did not file any notice of appearance or appear on the record for the appellant) to file all necessary materials, including written submissions. In those circumstances, the Minister did not oppose the appellant having a further month to contact the solicitor and for him to file any written submissions on his behalf. Orders were made for any written submissions to be filed by 6 June 2022 and the matter be stood over for further hearing or judgment on a date to be fixed.

5    On 7 June 2022, no submissions having been received from the appellant, I caused my Associate to contact the appellant by telephone. My Associate was informed by the appellant that he had given all of his materials to the solicitor at the end of May and that he had expected him to file written submissions. However, the following day, the appellant emailed my Chambers stating that he had made further contact with the solicitor and that he was unable to assist.

6    On 8 June 2022, I caused my Associate to send a further email to the parties stating that I was of the view that the appellant had had ample opportunity to file written submissions, and that the Court would proceed to determine the matter on the materials before it.

7    In opposition to the appeal, the Minister relied upon a written outline of submissions filed on 28 April 2022, as well as an affidavit of Ms Maria del Carmen Juarez affirmed 30 March 2022, which annexed the Court Book from the proceedings before the primary judge.

Background and the Tribunal’s reasons

8    The appellant is a Sunni Muslim of Bengali ethnicity and was found to be a citizen of Bangladesh. He arrived in Australia on 28 May 2013 and applied for a Protection (Class XA) visa on 16 July 2013. By letter dated 28 April 2015, a delegate informed the appellant that, by operation of s 45A of the Act, the appellant’s visa application was taken to be an application for a Temporary Protection visa.

9    On 28 April 2015, the delegate refused the appellant’s application for a Temporary Protection visa. On 6 May 2015, the appellant applied to the Tribunal for a review of the delegate’s decision. On 24 October 2015, the Tribunal affirmed the decision of the delegate not to grant to appellant a Temporary Protection visa.

10    The Tribunal’s reasons for decision at [3] record a summary of the claims for protection made by the appellant in his statutory declaration dated 13 June 2013 which accompanied his protection visa application as follows:

The applicant claimed that he feared returning to Bangladesh because he was a member of the Jamaal e Islami party and activist members of the opposing Awami League and Jatiya Party had come to his· fertiliser store in his home area in 2012 and sought donations. When he refused they threatened him, assaulted him and damaged his store. After this incident he went to Dhaka where he stayed until he left Bangladesh for Australia.

11    The Tribunal also had regard to claims made by the appellant in his entry interview dated 11 April 2013, his interview with the delegate on 30 September 2014, the appellant’s further statement dated 7 October 2016 and the oral evidence given at the Tribunal hearing with respect to which his representative advanced further claims for protection.

12    At [23]–[41], the Tribunal first considered the appellant’s claims for protection because he was a member of Islami Chatra Shibir (the student wing of Jamaat e Islami), which were opposing political parties to the ruling Awami League. The appellant claimed that he and his family were, and were known to be, active supporters of Jamaat e Islami. The Tribunal’s concluded at [39]–[41] that while the appellant and his family were supporters of Jammat e Islami, it was not satisfied that he or his father was a formal member:

39. The Tribunal accepts the applicant’s evidence that he had attended a madrasah school and that some senior students at the school had promoted Jamaal e Islami. It accepts that the applicant became a supporter and that members of his family, including his father were also supporters of the party. It also accepts he attended some activities organised by Islami Chatra Shibir including lectures, meetings, protests and that he spoke about his support for the group to family and friends.

40. The Tribunal does not accept that the applicant was a member or committee member of Islami Chatra Shibir or Jamaal e Islami. This claim was not part of the claims made in the applicant’s statutory declaration made in June 2013 which clearly stated that he and his family members had been active supporters. The letter from the local branch of Jamaal e Islami referred to him as a supporter. His claim to have been a committee member emerged later in the application process.

41. The Tribunal accepts that the applicant supports the ideals of Jamaal e Islami and has kept up to date on public information about the group but it does not accept that he is, or has been, an active member or that he has been a committee member. The Tribunal found that his oral evidence at hearing did not support his claim to have been a formal member or committee member of Chatra Shibir or Jamaal e Islami.

13    At [42]–[72], the Tribunal then turned to the appellant’s reasons for leaving Bangladesh. In particular, the Tribunal considered his claim that Awami League activists came to his fertiliser store in his local area in 2012 and requested donations. The appellant claimed that after he refused to give a donation, the Awami Legaue activists assaulted him and damaged his store. The Tribunal member put a number of inconsistencies and apparent improbabilities to the appellant concerning this alleged event during the oral hearing. At [68]–[72], the Tribunal explained that while it accepted the appellant may have been subject to extortion by Awami League activists due to his and his family’s support for Jamaat e Islami and that this caused him to move to Dhaka, it did not accept this was the reason that he left Bangladesh:

68. When asked to give some specific detail about the incident in which he claimed he was attacked and injured he was not able to recount the experience in any coherent or plausible detail. The Tribunal found his inability to give first hand evidence about this incident including the context of the claimed attack, his recollection of the experience and its aftermath, indicates that he had not been attacked and injured as claimed.

69. The Tribunal accepts that local activists from political parties may have come to his shop in 2012 and asked for donations on a number of occasions. It accepts that he refused and that he may have been threatened if he did not make the requested donations. As he stated in his statutory declaration members of the political groups were coming to the shops in the market and asking for donations from shopkeepers .

70. The Tribunal accepts that the applicant was a Jamaal e Islami supporter and may have felt intimidated by the Awami League activists and felt that he could not seek the protection of the police due to the partiality of police for the current Awami League government. It also finds that the reason that the shop was closed and the applicant went to Dhaka was because of the demand for donations which could either not be sustained from the business income or because the applicant objected to making donations to the Awami League. The applicant gave evidence that after he left the village the shop was closed and his father did not continue the business due to his age. The applicant did not give evidence that he wished to return to the local area and operate the business.

71. The applicant left the village in August 2012 and went to stay in Dhaka. The Tribunal put it to him that he could have remained in Dhaka but he stated that whilst he could have remained in Dhaka he discussed the issue with a few friends and decided it was better to leave the country.

72. Even though the Tribunal accepts the applicant may have been subject to extortion in his local area it considers he moved to Dhaka to avoid this conduct. It considers he would have been safe and not subject to any demand for donations if he had stayed in Dhaka. The Tribunal does not accept that the applicant left Bangladesh because he feared harm for reasons of his or family's, political involvement with Jamaal e Islami. The request for donations appeared to have been made to all storekeepers in the market and the Tribunal finds it was not related to his political opinion. The Tribunal also does not accept that he left Bangladesh because of the threats made by Awami League activists him in 2012. It considers that the threats were localised and he decided he could not continue to operate his business in the village. He moved to Dhaka and the Tribunal considers he chose to leave Bangladesh for Australia to improve his economic situation rather than because he feared harm for reasons of political opinion or his membership of a particular social group.

14    At [73]–[89], the Tribunal considered two further claims made by the appellant concerning a marriage dispute involving his cousin in 2004, and a land dispute, also in 2004, which he alleged resulted in a physical fight between his family and another family that were supporters of the Awami League. While the Tribunal accepted the appellant’s evidence concerning the existence of the marriage dispute, the appellant acknowledged that the marriage dispute was resolved in 2010. The Tribunal therefore did not accept the families of the affected parties would seek to harm him if he returned to Bangladesh: at [81]. The Tribunal also accepted that the land dispute occurred, but did not accept that if the appellant returned to Bangladesh, the other family would harm him, particularly given no action was taken by that family to harm him while the appellant lived in the same village between 2008 and 2012: at [88]–[89].

15    At [90]–[94], the Tribunal summarised the appellant’s representative’s submissions. Apart from the claims for protection already considered by the Tribunal, the representative also advanced a submission that he would face serious harm if removed to Bangladesh from his imputed political opinion as being pro-Bangladeshi National Party (BNP) on account of Jamaat e Islami.

16    The Tribunal then considered whether the appellant satisfied the refugee criterion in s 36(2)(a) (at [95]–[120]) or the complementary protection criterion in s 36(2)(aa) (at [121]–[125]).

17    As to the refugee criterion in s 36(2)(a), the Tribunal accepted the appellant and his father were supporters of Jamaat e Islami and that he may continue to fear requests for donations or threats of physical harm from Awami League activists in his local area. The Tribunal also accepted that relevant country information noted that BNP and Jammat e Islami business owners are subject to extortion in rural areas and may be subject to threats of violence if they fail to comply with demands, which supported the appellant’s claims he may have been subject to past threats. However, at [105]–[106], the Tribunal concluded that:

105. … Whilst the Tribunal accepts that the applicant may have been subject to such threats in the past it does not accept that if he returns to Bangladesh now or in the foreseeable future he would resume his business in his village or surrounding areas and would not therefore be subject to threats of harm from local Awami League activists. It considers that he would not seek to resume his business in the village because his fertiliser licence has expired, his father has retired and the business has become defunct.

106. As discussed with the applicant at the Tribunal hearing, the Tribunal considers that if the applicant feared continued requests for donations or threats from Awami League activists in his local area he could move to Dhaka or one of the larger Bangladeshi cities such as Chittagong or Narayanganj and it considers that such relocation would be reasonable in all the circumstances.

18    The Tribunal then considered whether it was reasonable for the appellant to relocate in Bangladesh to a region where it considered, objectively, there was no appreciable risk of harm. After considering evidence as to the reasonableness of appellant relocating to Dhaka, Narayanganj or Chittagong if he was returned to Bangladesh, including his family ties in Dhaka, the Tribunal concluded at [114]–[115]:

114. The Tribunal does not accept the applicant’s claim that the Awami League activists from his local area would have any adverse interest in the applicant if he relocated to Dhaka, Narayanganj or Chittagong. It finds the conduct which took place in 2012 is localised and arose from his involvement in his fertiliser business. The evidence set out above indicates that he has stayed with relatives in Dhaka in the past and the Tribunal considers he would have personal connections there which would make his relocation reasonable. He is unmarried and does not have other issues which would prevent his move. He has also lived in Narayanganj in the past where he worked in his uncle’s construction business.

115. The applicant and his representative claim that relocation is not available to the applicant because his fear of Awami League activists or government authorities would extend to other areas of Bangladesh but the Tribunal does not accept this claim. The Tribunal does not accept that as a supporter of Jamaal e Islami and Islami Chatra Shibir or being involved in low level local activities in his village in the past would give rise to politically motivated targeting for that reason. Country information in the current DFAT report does not suggest that support of Jamaal e Islami in itself, or previous involvement in low level Jamaal activities, would put the applicant at risk of harm from government authorities or Awami League members or activists.

19    While the Tribunal accepted that Bangladesh was experiencing ongoing political instability and government repression of members of opposing political parties, the Tribunal did not accept that, given the appellant’s profile, he would be affected by government actions if relocated to Dhaka or Narayanganj: at [118].

20    The Tribunal concluded that, if the appellant returned to Bangladesh, there was not a real chance that that he would face harm by reason of the claims for protection advanced or a well-found fear of persecution for any Convention related reasons: at [119]–[120]. Thus, s 36(2)(a) was not satisfied.

21    At [121]–[125], the Tribunal turned to separately consider the complementary protection criterion in s 36(2)(aa), namely whether there was substantial grounds for believing that the appellant would suffer significant harm as a necessary and foreseeable consequence of him being removed to Bangladesh. In circumstances where the Tribunal had found that the appellant’s fertiliser business was now defunct and licence not renewed, nor was there any evidence he or his father intended to resume business in his local area, it did not accept that he would face any harassment or threats from Awami League members in his local area if he returned: at [122]. Further, for similar reasons to above, the Tribunal found that as the appellant was not a member or committee member or high profile activist of Jamaat e Islami or Islami Chartra Shibir, he would not face a real risk of imprisonment or harassment if he returned: at [123]. The Tribunal did not accept the appellant would be subject to cruel or inhumane treatment, subject to degrading treatment or be arbitrarily deprived of his life if returned to Bangladesh by reason of his political opinions and support for Jamaat e Islami or Islami Chartra Shibir: at [124]. Thus, having not accepted the appellant’s other claims for protection, the Tribunal was not satisfied the complementary protection criterion in s 36(2)(aa) was satisfied: at [125].

22    As there was no suggestion that appellant satisfied s 36(2) on the basis of being a member of the same family unit as a person who satisfied paragraphs (a) or (aa) or who holds a protection criterion, the Tribunal concluded that appellant did not satisfy s 36(2), and therefore affirmed the delegate’s decision: at [126]–[128].

The primary judge’s reasons

23    Before the primary judge, the appellant advanced three grounds of review. The grounds advanced on appeal, despite some degree of overlap, are different from those advanced before the primary judge. The Minister did not object to the two grounds now advanced on that basis. It is therefore unnecessary to consider the correctness or adequacy of the reasons of the primary judge.

The grounds of appeal

24    The two grounds of appeal advanced by the appellant were as follows:

Ground 1:

The Immigration Assessment Authority has failed to apply the correct test pursuant to Section 36(2)(aa) of the Migration Act 1958 (Cth).

Particulars:

In dealing with the Applicant's claims under Section 36(2)(aa) of the Migration Act, the Administrative Appeals Tribunal explicitly failed to disaggregate the statutory formulae under Section 36(2)(aa) of the Act.

Ground 2: Jurisdictional Error - Failure to Take into Account a Relevant Consideration

The Second Respondent erred as to jurisdiction by failing to take into account the Applicant's claims as required by the Migration Act. The IM adopted hard attitude in assessing or examining the relevant facts presented by the applicant. The Tribunal failed to assess the relevant material on logically probative and relevant materials.

Consideration

Ground 1

25    The appellant’s first ground of appeal alleged that the Tribunal, in dealing with the appellant’s claims under s 36(2)(aa) of the Act, failed to disaggregate the statutory formulae and therefore apply the correct test. The appellant’s post-hearing submissions to the Tribunal on 7 October 2016 noted that each source of harm relied upon was claimed as applicable to both the refugee and complementary protection criteria in s 36(2)(a) and (aa).

26    The appellant’s contention that the Tribunal failed to separately consider the appellant’s claims for protection under s 36(2)(a) and (aa) cannot be accepted. As the summary of the Tribunal’s reasons above demonstrates, the Tribunal separately considered each criterion under s 36(2) by reference to the correct test. As the Tribunal’s reasons at [126]–[127] record, it was well aware that they were distinct and separate criterion, and its reasons reveal it appropriately disaggregated consideration of each. Whilst the Tribunal’s reasons in respect of s 36(2)(aa) were comparatively shorter, this is entirely understandable, as it had already rejected the factual premise underlying some of the appellant’s claims or otherwise rejected that such claims gave rise to a risk of harm to the appellant if he was removed to Bangladesh. The Tribunal was “entitled to refer to and rely on any relevant findings” in relation to s 36(2)(a) in its consideration of s 36(2)(aa): DQU16 v Minister for Home Affairs [2021] HCA 10; 388 ALR 363 at 372 [27].

27    This conclusion is consistent with the primary judge’s reasons at J [38]–[40]. Ground 1 must therefore fail.

Ground 2

28    Ground 2 alleges that the Tribunal erred by failing to take into account the appellant’s claims, adopting a “hard attitude” to examining the facts and failing to assess the materials on a logically probative basis.

29    I am not persuaded that the Tribunal failed to take into account any of the claims advanced by the appellant. At [91]–[94], the Tribunal set out the appellant’s claims, both those summarised in the appellant’s post-hearing submissions dated 7 October 2016 and those made by the appellant’s representatives during oral submissions at the hearing. The Tribunal proceeded to consider those claims by reference to s 36(2)(a) and (aa). As noted above, the Tribunal was entitled to refer to and rely upon its findings under s 36(2)(a) in considering s 36(2)(aa). While the Tribunal did not expressly make findings in relation to the family dispute and marriage dispute in considering the refugee and complementary protection criterion, this was acceptable, as it had already given logical and probative reasons for rejecting the appellant’s claims to fear harm referable to those events.

30    I am also not persuaded that the Tribunal’s reasons disclose any failure to assess adequately the relevant materials on a logically probative basis. The Tribunal gave logical and rational reasons for rejecting parts of the appellant’s claims. The appellant has failed to identify any particular finding by the Tribunal which was unsupported by, or failed to consider, relevant materials, as opposed to expressing disagreement with the merits of the finding ultimately reached. The appellant has failed to demonstrate any illogicality or irrationality in the fact finding of the Tribunal: ARG15 v Minister for Immigration & Border Protection [2016] FCAFC 174; 250 FCR 109 at 122 [47], whether “extreme” or otherwise.

31    To the extent the appellant’s submission that the Tribunal adopted a “hard attitude” amounted to an allegation of actual or apprehended bias, I reject that submission. The Tribunal’s reasons demonstrate that the appellant was afforded a fair opportunity to be heard and to rely upon whatever evidence and submissions he wished to advance before the Tribunal through his representative. As the Minister submits, while the Tribunal did not accept some of the appellant’s claims and expressed concern about some inconsistencies in his evidence, it gave logical explanations for such concerns, did not place any significance on some inconsistencies, and ultimately accepted many of the matters raised by the appellant. The appellant has not persuaded me that a fair-minded lay observer might reasonably consider that the Tribunal might not have carried out its functions with an impartial and unprejudiced mind, or that it was so committed to a particular conclusion that it was incapable of persuasion.

Conclusion

32    The appellant has failed to identify any jurisdictional error in the reasons of the primary judge for rejecting the appellant’s application for constitutional writ relief from the Tribunal’s decision. The appeal must be dismissed, with costs.

Associate:

Dated:    22 June 2022