BND18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

IAA's reasons 6 The IAA's decision record (or DR) dated 2 March 2018 began with a discussion of the information before the Authority. The IAA first noted that it had had regard to the material given by the Secretary under s 473CB of the Migration Act. It then turned to consider a Submission prepared by BND18's representative and received by the IAA on 30 November 2017, as well as BND18's statutory declaration dated 28 November 2017 (2017 statutory declaration). The IAA found that those aspects of the Submission that discussed evidence and country information which were before the delegate and responded to the delegate's findings based on that material may be regarded as argument and the IAA had regard to it: DR[3] and [4]. 7 The IAA then went on to consider the extent to which it was entitled to consider information in the Submission and 2017 statutory declaration at DR[5]-[8]: 5. The representative submits that the delegate failed to consider or accurately assess some of the applicant's claims including the impact on return of the applicant's continued BNP political involvement in Australia, the physical assault on the applicant in Australia by AL members after attending a BNP meeting; and the consideration of the imputed political ramifications and enhanced profile arising from the applicant's work and benefit from a government construction contract awarded to his brother which made the family wealthy and enhanced the applicant's profile making him a target of AL. The representative refers to the applicant's statutory declaration dated 28 November 2017 which provides details regarding these matters. 6. It is submitted that there are exceptional circumstances for considering the information including that in the statutory declaration, as some of the information in the submission and in the statutory declaration was already before the delegate but was not thoroughly assessed by the delegate; the applicant was unaware that these matters were of concern to the delegate or would not be considered by the delegate until the decision was received, as the delegate did not raise any concerns regarding the applicant's claims or put any issues of concern to the applicant at the SHEV interview; and these issues are critical to the assessment of the real chance of harm on return to Bangladesh. 7. The applicant at the SHEV interview discussed his work on the government contract acquired by his brother when they were both with the BNP but did not state that his brother acquired the contract through his position and BNP connections. He also stated that he was targeted by AL after they came to power because he did not give a percentage of the profits from the government jobs he did when the BNP were in power to the AL. The applicant now claims that his family became wealthy as a result of the contract and this together with his brother's BNP position (which was before the delegate) raised his profile and resulted in him being targeted. The information regarding how his brother obtained the contract and the wealth acquired from the contract is new information which was not before the delegate. The applicant at interview also stated that he was returning from a BNP meeting at the local library in Australia when he was attacked. He provided a detailed account of the attack but did not indicate that he believed he was attacked by AL members. This is new information which was not before the delegate. The applicant had also indicated in his visa application that he attended informal gatherings with other BNP supporters in Australia but did not provide details of the extent of his involvement or how often he attended these BNP gatherings. This is also new information. 8. The delegate considered the applicant's claims in regard to the government contract but did not consider the brother's position in the BNP (although it was in a document provided to the delegate after the interview) or the circumstances in which his brother obtained the contract. I note that although the applicant mentioned that he attended a BNP meeting in Australia, he did not raise any connection between his attendance and the attack on him or mention he had been attending such meetings regularly. Nor did the delegate request further information about either of these matters at the interview or mention them in the decision. As noted by the representative, the delegate did not raise any matters of concern at the end of the interview and the representative did not mention them in the post interview submission. In the circumstances I am satisfied the applicant was not put on notice of these matters, and could not have provided the information prior to the delegate's decision. I am also satisfied that the statutory declaration which provides clarifying details of these matters and postdates the delegate's decision could not have been provided prior to the delegate's decision. I am satisfied that there are exceptional circumstances for considering the information and the statutory declaration. 8 The IAA found that there were no exceptional circumstances justifying consideration of four photographs said to have been taken by BND18 at an event attended by BNP supporters in Australia to celebrate the birthday of the BNP national opposition leader's son. The IAA was not satisfied that the photographs were evidence that those in attendance were BNP supporters or that BND18 was present at the function. Accordingly, the photographs had little probative value and did not corroborate BND18's claims to have had BNP involvement in Australia: DR[9]. 9 The IAA was also not satisfied that there were exceptional circumstances or that the requirements of s 473DD(b) were met in relation to an undated letter from NSW Police which was provided as evidence that BND18 reported an attack on him to the police. The IAA found that the letter was not before the delegate and it was therefore new information, but it was not satisfied that the letter could not have been provided before the delegate's decision. The IAA found that the letter was credible personal information which verified that BND18 reported an incident to the police on 1 March 2014 and stated a report/event number, but the letter did not state the type of incident reported, its circumstances or the alleged assailants/perpetrators so that it did not corroborate BND18's claim to have been assaulted or that his assailants were AL members: DR[10]. The IAA found that, given the lack of detail in the document to corroborate the assault or the perpetrators, it was not satisfied that it may have affected the consideration of BND18's claims. 10 The IAA then considered a number of documents containing country information relating to Bangladesh. The IAA was not satisfied that any of the documents could not have been provided before the delegate's decision was made or that the documents were credible personal information and accordingly s 473DD(b) was not satisfied. The IAA was also not satisfied that there were exceptional circumstances justifying consideration of the documents: DR[11]. 11 The IAA summarised BND18's claims (at DR[12]) and accepted that he is a citizen and national of Bangladesh (at DR[13]). It then turned to consider the evidence that BND18 had provided in relation to his affiliation with the BNP from the time of his entry interview onwards (at DR[14]-[18]). The IAA: (1) Accepted that BND18 was interested in the BNP due to his brother's BNP membership and involvement, that he met other BNP members through his brother who encouraged his interest, and he became a local BNP member after the BNP came to power in 2001: DR[18]; (2) Had concerns about BND18's claimed level of involvement with BNP activities, particularly in relation to his involvement in the contract obtained by his brother. The IAA found that BND18's claims evolved over time and that they were inconsistent with his employment history as stated in his visa application and his entry interview. That inconsistency was not explained by BND18's issues during the entry interview (that is, difficulties understanding the interpreter and his evident distress): DR[17], [19]; (3) Considered BND18's accounts and country information and was satisfied that BND18 may have assisted in organising local BNP activities while the BNP was in power. The IAA was willing to accept that BND18 may have been involved in low level election campaign activities in the lead up to the December 2008 election. The IAA considered that BND18 exaggerated the level and extent of his involvement in the BNP, particularly in relation to his claimed role in managing projects on behalf of the BNP. It accepted that BND18 had some low level involvement as a general member of the BNP between 2001 and 2008 when the AL came to power: DR[20]; and (4) Accepted that BND18's brother had local influence within his BNP branch, that his brother used his influence to secure a lucrative government contract and that BND18 may have assisted his brother in the execution of the contract while the BNP was in power. It did not accept that BND18 had oversight of the contract on behalf of the BNP or that his work with his brother heightened BND18's political profile: DR[20]. 12 The IAA then considered BND18's claims in relation to attacks by the AL and BCL in the period after the election in December 2008 having regard to various sources of country information, including a "Country Report Bangladesh" by the Department of Foreign Affairs and Trade (DFAT) dated 20 October 2014 (DFAT's 2014 Report). The IAA: (1) Found that there may have been an outbreak of violence in BND18's area after the election during which the family shop was ransacked due to his elder brother's BNP profile. However, due to inconsistencies in BND18's evidence, the IAA found that BND18 exaggerated his claims and it was not satisfied that his brothers were beaten by the AL or the BCL as claimed: DR[23]; (2) Did not accept that it was plausible that two years after the election, either the AL or the BCL would be taking an interest in BND18 due to his BNP activities. This was because the IAA did not accept that BND18 was more than a low profile member of the BNP during the time it was in power and in the lead up to the 2008 election or that he supervised government projects on behalf of the BNP. While the IAA accepted that BND18 may have continued to attend BNP meetings after the election, it was not satisfied that he was pursued by the AL or the BCL due to his BNP involvement, that he was the subject of a vendetta or that he went into hiding in January 2011: DR[27]; (3) Was not satisfied that BND18's brothers were beaten in either January or June 2011 or that they went into hiding to avoid further harm. This finding was based on significant discrepancies in BND18's evidence about when his brothers were allegedly approached and beaten and where they were when the family home was destroyed and the shops ransacked, which raised concerns about his credibility. Further, the IAA accepted that the family home may have burned down, but, due to discrepancies in BND18's evidence and BND18's failure to provide evidence of his brothers' involvement in the BNP since the 2008 election, it was not satisfied that the AL or the BCL were responsible for it or that it occurred because of his or his brothers' involvement with the BNP: DR[28]-[29]; (4) Was not satisfied that BND18 was targeted in Chittagong because of his or his brothers' political profiles. As the AL and BCL had not targeted BND18 during the three years in which he resided in his home village, the IAA found it implausible that they would attempt to kidnap and kill him after he had lived in Chittagong for nine months without incident: DR[30]; (5) Found that it was implausible that BND18's nephew was targeted in 2017 when he returned to BND18's home village to obtain his birth certificate due to BND18's association with the BNP or the family's profile, given the IAA's findings that BND18 was not of interest to the AL or BCL and given that BND18 left the village in 2011 and his family had moved elsewhere. That claim was also inconsistent with other claims that all of his papers were lost when the family home burnt down and that family members obtained his birth certificate in March 2013 (which he provided to the Department of Immigration and Citizenship, as it was then known) without any issues arising: DR[31]; and (6) Found that BND18's daughter may have been kidnapped for ransom in May 2017, but given that the IAA did not accept BND18 was of any interest to either the AL or the BCL at the time of his departure from Bangladesh due to his support of the BNP and that his family lived in a different village from his home village and they had never been targeted before, the IAA was not satisfied that BND18's daughter was kidnapped due to BND18's political support for the BNP: DR[32]. 13 The IAA then turned to consider BND18's claims to have continued his involvement with the BNP in Australia and his claim to have been attacked after attending a meeting in March 2014 and BND18's belief that his attackers were AL members from the same area of Bangladesh as him. The IAA accepted that BND18 occasionally attended BNP meetings in Australia and that he was subject to a robbery in 2014 in which he was hurt. However, the IAA did not accept that he was attacked by AL members or that he was targeted due to his political affiliation, having regard to discrepancies between his detailed account of the incident at his SHEV interview and the 2017 statutory declaration provided to the Authority discussed at DR[34]-[35] and the lack of evidence that his attackers were AL members other than BND18's assertions: DR[33]-[37]. 14 The IAA then turned to assess whether BND18 was a refugee with a well-founded fear of persecution having regard ss 5H(1) and 5J of the Migration Act: DR[38]-[39]. 15 The IAA referred to a number of sources of country information including DFAT's "Country Information Report Bangladesh" dated 5 July 2016 and DFAT's "Bangladesh - Country Information Request - Political Violence" dated 6 February 2017. Having regard to that country information and its factual findings, the IAA concluded that BND18 would not face a real chance of harm as a result of any past or future BNP support or as a failed asylum seeker, nor would he face a real chance of penalties due to his illegal departure from Bangladesh. Accordingly, the IAA concluded that it was not satisfied that BND18 was a person to whom Australia owed protection obligations under s 36(2)(a) of the Migration Act: DR[40]-[48]. For the same reasons, the IAA also concluded that the complementary protection criterion under s 36(2)(aa) of the Migration Act was not enlivened as there were not substantial grounds for believing that as a necessary and foreseeable consequence of being returned from Australia, there was a real risk that BND18 would suffer significant harm: DR [49]-[52].

Summary of FCCA Judge's reasons 16 Having summarised BND18's claims and the Authority's reasons for its decision, the FCCA Judge set out the grounds of BND18's amended application for judicial review filed in the FCCA on 14 December 2018 as written at J[25]. The FCCA Judge noted that there were four discernible grounds and adopted the Minister's summary of BND18's grounds at J[32]: The applicant was denied procedural fairness and natural justice by the IAA when it made its "decision on limited information: materials referred by the Secretary under s 473 of the Act". This is particularised by the claim that he did not get a chance to expand his claims; that the information in the statutory declaration of 28 November 2017 was "totally discarded", and that the delegate did not raise any issues of concern with him at the SHEV interview. By his second ground, he contends that "the IAA made a jurisdictional error when it failed to hold that the department mistook or construed the facts and assessed the application based on the irrelevant and old information supplied by the DFAT country report Bangladesh". However, this is particularised again by the claim that the IAA "totally ignored" the issues raised in the statutory declaration of 28 November 2017, and also raises issues about the IAA's treatment of inconsistencies in the applicant's evidence and attacks on the factual finding of the IAA, and in particular, on its assessment of the applicant's credibility. The applicant contends that not asking for new information of harassment or torture by the Awami League is also a jurisdictional error, based on "ignoring relevant issues and making decision on irrelevant issues". The particulars to this ground repeat the concern identified in the first ground, that is, he claims he did not "get chance to expand the claim at the stage of his visa application at IAA". They also repeat his identified concerns about the assessment of his credibility. By the final ground, the IAA is said to have "undermined substantial grounds for believing …", ie misinterpreted or misapplied s 36(2)(aa) which provides the criteria for the grant of a protection visa based on complementary protection. This is particularised by reference to "fears of persecution based on his support to BNP". It is also claimed that the IAA did not give "real reasons" in relation to s 36(2)(aa). 17 The FCCA Judge rejected both the first and third ground: J[33]-[34]. His Honour noted those grounds essentially contended that BND18 did not get a chance to expand his claims before the Authority and found that those grounds "fail to take account of the particular nature of a review conducted under Part 7AA of the Migration Act". The FCCA Judge considered key elements of Part 7AA as they affected BND18's claims and authorities relating to the nature of the review undertaken by the Authority under that statutory framework: J[35]-[38]. Further, at J[39], the FCCA Judge found that: (1) The claim in the first ground was factually incorrect because the Authority did not "totally discard" the information in the 2017 statutory declaration. In fact, the Authority determined that there were exceptional circumstances that justified its consideration, relying on DR[6]-[8]; (2) There was no obligation on the Authority to seek out further information from BND18 so there can have been no denial of procedural fairness as claimed, relying on s 473DC(2) of the Migration Act; and (3) In relation to any concern about the delegate's decision, the Authority's decision will not generally be vitiated by an error of the delegate; the Authority's "central task of considering the application for a protection visa afresh must render moot any failure to consider information that may have occurred on the part of the Minister or delegate in making the decision under review", relying on Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 264 CLR 217 at [46] (Gageler, Keane and Nettle JJ). 18 In relation to the third ground, the FCCA Judge (at J[41]-[42]): (1) Noted that BND18 contended that the Authority ought to have sought out new information about harassment or torture by the AL, but that the particulars of the ground did not go beyond what was said in relation to the first ground (namely that he was entitled to a further opportunity to put on his claims); (2) Relied again on the limits imposed by Part 7AA on BND18's right to put new information to the Authority or to attend an interview with the Authority; (3) Found that a further difficulty with the ground was that, whatever risks might be faced from the AL by people with significant BNP profiles, BND18 was a low level or ordinary member and his limited role in the BNP would therefore not put him at risk; and (4) Accepted the Minister's submissions in relation to assessment of credibility. 19 The FCCA Judge found that the fourth ground rose no higher than an attempt to seek to have the Court impermissibly undertake merits review and that the particulars merely repeated parts of BND18's factual claim that he feared being subjected to cruel and inhuman treatment based on his support of the BNP. In light of the Authority's factual findings, which the FCCA Judge considered to be open to it, the ground could not succeed. In relation to the contention that the Authority did not give "real reasons" for not applying s 36(2)(aa) of the Migration Act, the FCCA Judge acknowledged that the Authority's reasons were brief but found that they were clearly referenced to the findings made about the limited extent of BND18's BNP activity and profile so there was no basis for finding that the reasons were inadequate so as to give rise to jurisdictional error: J[43]-[44]. 20 The FCCA Judge noted that BND18's second ground appeared to take issue with the country information relied on by the Authority but beyond that assertion, the particulars did not elaborate on or elucidate the nature of any claimed error, instead asserting that the Authority erred in the assessment of his credibility: J[45]. In rejecting the second ground the FCCA Judge undertook the following consideration: (1) Generally speaking, credibility findings are a matter for the fact finder. While there are limited circumstances where errors in fact finding (including errors that impact upon credibility findings) can give rise to jurisdictional error, what must be shown is "extreme illogicality". In this case, BND18 had pointed to nothing that could give rise to a concern that the Authority's credibility findings were not open to it nor that they were in any way legally unreasonable: J[46]-[47]. (2) BND18 appeared to contend that the Authority's failure to refer to the latest available country information constituted jurisdictional error on the basis of a legally unreasonable failure to exercise the discretion under s 473DC to obtain new information. His Honour noted that DFAT published a country information report relating to Bangladesh on 2 February 2018 (DFAT's 2018 Report), 28 days before the Authority made its decision and that report was not referred to in the Authority's decision record. The FCCA Judge referred to BDI17 v Minister for Immigration and Border Protection [2018] FCCA 2162; (2018) 339 FLR 147 (BDI17) in which his Honour found that a failure on the part of the Authority to consider obtaining a DFAT country information report published a month before publication of its reasons in BDI17's case "lacked any evident and intelligible justification" for the reasons set out in BDI17 at [70]-[71]. The FCCA Judge also referred to the decision of Judge Baird in BHX18 v Minister for Home Affairs [2018] FCCA 3498 (BHX18) in which her Honour found at [50] that, ultimately, whether a failure to consider obtaining new information is unreasonable will depend on the particular circumstances of the case. The FCCA Judge discussed the basis on which Judge Baird found BHX18 to be distinguishable from BDI17: J[49]-[51]. (3) The applicant has a general onus of establishing his case in judicial review proceedings, relying on Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594 at [67] and [91]-[92] and Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 at [41] (SZMTA). Moreover, an applicant for judicial review must not only establish error on the part of the decision maker, but also, as the element that renders an error a "jurisdictional" error, that any such error is material, relying on SZMTA at [4], [41] and [46]: J[52]. (4) In light of the Authority's findings about BND18's limited and low level role in the BNP and his failure to identify any material in DFAT's 2018 Report that he contends ought to have been, but was not, taken into account, there is no basis for finding that anything in that report, had it been before the Authority, could have affected the outcome of his case. BND18's real challenge appears to have been to the Authority's findings about the extent of his BNP involvement. While the Authority had sufficient time to obtain DFAT's 2018 Report and should have done so, the error does not go to jurisdiction because there is nothing arising from a comparison of the two country reports that is material to his claims and the Authority's assessment of them. On that basis, BND18's case is to be distinguished from BDI17 and has more in common with BHX18: J[52]-[54]. The Court takes his Honour's reference to the "two country reports" to refer to DFAT's 2014 Report and DFAT's 2018 Report, both of which were in evidence in the proceedings in the FCCA and on the appeal. 21 The FCCA Judge noted that, in his oral submissions, BND18 claimed that the Authority made material factual errors in its decision as follows: (1) The Authority erred in finding that BND18 claimed to be living at home for three years prior to his departure for Australia. The FCCA Judge noted that this appeared to relate to DR[30] and concluded that the inference drawn by the Authority was available to it, having regard to the terms of BND18's 2017 statutory declaration at [18]-[21]: J[27]-[28]. (2) The Authority erred in its finding concerning an attack upon him in Australia, which he claimed was not a robbery as no property was stolen. The FCCA Judge noted that this appeared to relate to DR[33]-[37], and in particular to DR[35] where it is stated: At the SHEV interview the applicant stated that he had left a BNP meeting at the local library when he was attacked by three people asking directions and robbed of his mobile phone and wallet. He did not indicate that he recognised his assailants or had met them before. However in the statutory declaration he claims to have been attacked by two people after he left a local restaurant where there had been a BNP meeting. Although he could not see the people who attacked him as it was dark he was very sure it was AL members he had met earlier that evening at the restaurant who he recognised as being from the [redacted] area where the applicant was involved with the BNP. He also stated that he was unable to identify his attackers to the police. The FCCA Judge found that the Authority's conclusion was open to it having regard to BND18's claims reproduced in his statutory declaration at [12]-[15] and the record of his SHEV interview, so that no error on the part of the Authority was apparent: J[29]-[30]. (3) The Authority erred in making findings concerning his brother. The FCCA Judge found that this complaint appeared to relate to claims BND18 made in a statutory declaration declared on 8 August 2016 at [19] (which appears in the Court Book at p 80) and discussed at DR[23] read with DR[15]. His Honour found that there was no error apparent on the part of the Authority: J[31].

Appeal 22 The sole ground of the notice of appeal filed in this Court is as follows (as written) : The court below made a jurisdictional error when it failed to take into account relevant considerations and took into account irrelevant considerations. Particulars: Subparagraph of 65 (1) (a) (ii) of the Migration Act 1958 requires the decision maker in respect of the applicant's primary application for a protection visa to make determination as to whether for the grant of the visa prescribed by the Act or the Regulations made there under were satisfied. The Tribunal failed to assess the relevant material presented on logically probative and relevant materials. 23 BND18 appeared in person at the hearing of the appeal. The Minister was represented by counsel. The hearing of the appeal was conducted with the assistance of an interpreter.

Appellant's submissions 24 BND18 did not file any written submissions. At the hearing, he made the following oral submissions, as the Court understands them: (1) The documents he has submitted contain evidence, but he has not been believed by the delegate, the IAA or the FCCA. They said that nothing happened to him. BND18 asked how he managed "to get all of that evidence" on which he relied if nothing happened to him. (2) If there was no reason to feel persecuted in Bangladesh, he would not have left by boat "taking such a big risk". (3) His nephew is facing difficulties in Bangladesh and his children cannot go to school. (4) "Nobody knows" whether he will be killed if he returns to Bangladesh. (5) The attack on BND18 in 2015 was "definitely a political issue". As a result, he had to go to and from hospital for more than three months, probably six months. He still cannot lift anything heavy. It was a political attack. (6) BND18's daughter was kidnapped, but he was not believed that that was for political reasons. (7) Google search results only show whatever good things happen in Bangladesh. They do not include the bad things. The opposition leader is still in gaol. (8) BND18 questioned "the point of saying anything" if "nobody wants to believe anything" he says.

Disposition and Conclusion 25 The appeal should be dismissed with costs for the following reasons. 26 First, each of BND18's oral submissions go to the merit of the IAA's decision but do not disclose jurisdictional error by the IAA or appellable error by the FCCA Judge. 27 Second, the Court accepts the Minister's submission that it is well established that the fact that an appeal ground (particularly when it is the sole ground) is put with a high degree of generality and lack of specificity or any real particulars, is itself a sufficient basis for dismissing an appeal: WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35] (Gilmour J); BYM16 v Minister for Immigration and Border Protection [2018] FCA 326 at [12]-[13] (Bromwich J); CHM16 v Minister for Immigration and Border Protection [2018] FCA 1132 at [27] (Perry J); BDE16 v Minister for Immigration and Border Protection [2019] FCA 816 at [20], [24] (Reeves J); ANA18 v Minister for Home Affairs [2018] FCA 1854 at [59] (Derrington J); DIF17 v Minister for Immigration and Border Protection [2019] FCA 1055 at [29] (Abraham J); GSQ18 v Minister for Home Affairs [2019] FCA 2057 at [14] (Lee J). 28 Third, having given careful consideration to the IAA's decision record and the reasons of the FCCA Judge, the Court accepts the Minister's submission that there is no appellable error apparent in the FCCA Judge's approach or his Honour's conclusion that BND18's application for judicial review should be dismissed with costs. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Farrell.