BPN16 v Minister for Immigration and Border Protection

Ground One 12 Ground One was, paraphrasing, that the Tribunal had erred in the manner in which the member had questioned him. It had several aspects. The first of these was that the Appellant had been unfairly questioned about his knowledge of the BNP. He was not a senior party official and the kinds of question he had been asked were submitted to be more suitable for that kind of BNP member than for an uneducated fisherman just trying to support the party. 13 I do not accept this submission in this case. There have been cases where this Court has concluded that a cross-examination by the Tribunal has been conducted in such a one-sided and prosecutorial fashion that the appropriate conclusion is that a fair minded bystander would regard the Tribunal as being biased. Having reviewed that part of the transcript of the hearing which is available, I would be willing to describe the Tribunal member as brusque and perhaps less than credulous. On the other hand, the large volume of the work handled by the Tribunal in this area must be acknowledged and due allowance made for the limited circumstances in which its members operate. It is difficult and draining work listening to, and deciding, applications of this kind full time. Whilst I can imagine the Tribunal could have conducted itself more politely without in any way eroding its functionality, I do not think that one can say that the hearing was other than fair. 14 Accordingly, I do not accept that the Tribunal's questioning crossed over from the merely sceptical into conduct which, without more, might bespeak bias or an apprehension of bias. One particular set of questions the member asked concerned the ability of the Appellant to give some details about the design of the BNP flag. He was unable to describe the colour scheme of that flag. For a person who claimed to have been involved in organizing BNP meetings this was a notable failure. I mention this both because these were not unreasonable questions to ask the Appellant and because, when all is said and done, the Tribunal was entitled to express a degree of skepticism about the Appellant's answers. 15 Whatever the legal ground of review to which this first contention might relate I therefore reject it on the facts. This aspect of the questioning was not inappropriate. 16 A second aspect of Ground One concerned the Tribunal's apparent acceptance that as a person of Indian heritage he might suffer some discrimination in Bangladesh. The Appellant's claim was that his parents were refugees from India and that Indian refugees were subject to persecution in Bangladesh. At [61], the Tribunal did not accept that the Appellant would be regarded as a refugee in Bangladesh because he was, in fact, a citizen of Bangladesh (having been born there). It did accept at [63], however, that as a person of Indian extraction the Appellant was part of a minority group but, even so, it did not think he would be attacked for that reason if repatriated. It also accepted that as a member of such a minority group there was a risk that he might be subject to discrimination on account of his ethnicity: at [64]. However, it did not think that the kind of harm involved in that discrimination would lead to 'serious harm'. That finding was relevant because in assessing whether the Appellant had a well-founded fear of persecution, s 5J directs the Tribunal only to have regard to 'serious harm'. I set those sections out below. 17 The Tribunal's actual finding was this (at [64]): The Tribunal accepts that the applicant's family's Indian origin may lead to some members of the community perceiving them to be outsiders. The Tribunal accepts that this may even lead to some discrimination against the applicant and his family. However, the Tribunal is not satisfied that such discrimination would lead to serious harm. 18 The Tribunal's reasons do not here disclose the nature of what this discrimination was likely to be. Hence, whilst one knows that the Tribunal was content to conclude that these unspecified acts of discrimination did not constitute 'serious harm' for the purposes of s 5J one does not know why it reached that conclusion. 19 Section 430(1)(c) of the Act requires the Tribunal to set out in its reasons findings on any material questions of fact. That the Tribunal's reasons at [64] do not disclose any finding about the nature of the discrimination to which it was prepared to accept the Appellant might be subject, together with the requirements of s 430(1)(c), justifies the drawing of an inference that the Tribunal did not regard the nature of the discrimination as being material to an assessment of this issue. If it had regarded the nature of the discrimination as a material matter then, in compliance with s 430(1)(c), it would have set out in its reasons a finding about it. On one view, then, it did not set out in [64] such a finding; ergo, it did not regard the nature of the harm as a material fact: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 ('Yusuf') at 346 [49] per McHugh, Gummow and Hayne JJ. 20 This argument was not raised by the Appellant but it appeared to me potentially to raise an issue of substance. On 9 January 2020 I informed the parties that I thought that such a point appeared to have some merit and inviting their submissions upon it. A submission was received by the Minister's counsel on 29 January 2020 and from the Appellant on 31 January 2020. Having received these submissions, it seems to me that I should not accept the argument. As the Minister submitted it was a mistake to read [64] in isolation. Viewed in isolation the nature of the discrimination referred to in [64] might well appear unexplained but this was not so when there was brought to account, as there had to be, the contents of [52]. At [51] the Tribunal had set out the nature of the Appellant's claim that he might suffer discrimination on account of his Indian ethnicity. These claims were as follows: In post-hearing submissions, the applicant provided the Tribunal with a printout of an abstract of an article written by a PhD candidate in the Journal of Humanities and Social Sciences in 2008 titled "The Neglected Stateless Bihari Community in Bangladesh: Victims of Political and Diplomatic Onslaught." He submitted that Bangladeshi citizens of Indian origin are a minority in Bangladesh. He stated that they are defenceless and are easy targets for "bad people". He submitted that the government supports them and 'close their eyes' to illegal and immoral activities. He submitted that the media does not publish news because of the 'government's red (blood) eye'. He agreed that the AL government is pro-Indian. He submitted that the delegate failed to understand the geo-socio political culture of the subcontinent. He submitted that he was targeted and attacked because he is recognized as a BNP worker and is a minority businessman. He did not make a claim that he is a Bihari. 21 At [52] the Tribunal then proceeded to dismiss these claims: The Tribunal would expect that if the applicant's father's business was targeted because they "were the only refugees from India in that area" and they knew that they would not be able to protest if they did something bad to them and/or because his family's Indian origin would lead them to be perceived as outsiders and/or because they owned a business as an Indian 'refugee' and/or because Bangladeshi citizens of Indian origin are a minority in Bangladesh, the Tribunal would expect the applicant's father and the applicant to have had ongoing problems in Bangladesh and not just from 2013 onwards. The applicant's evidence is that his grandfather and father moved to Bangladesh in about 1971 and lived there since then. During the hearing, the Tribunal asked the applicant when he or his family first had a problem in Bangladesh and he responded 4 January 2013. This is not consistent with them being targeted for the above reasons. 22 Before reaching its final conclusion on this issue at [64] it also said this at [63]: The Tribunal accepts that Bangladeshi citizens of Indian origin are a minority in Bangladesh. The Tribunal does not accept that they are defenceless and are easy targets for "bad people". The Tribunal does not accept that the Bangladeshi government is complicit in the targeting of this minority group. The Tribunal does not accept that the applicant was targeted and attacked or that there is a real chance that he will be targeted and attacked if he returns to Bangladesh because he is a minority businessman and/or an Indian 'refugee' who owns a business. 23 By this reasoning, the Tribunal was inquiring into whether the Appellant was a refugee under the machinery of s 36. This took it to s 5H which, relevantly, defines a refugee to be a person who is unwilling or unable to avail themselves of protection in their country of origin owing to a 'well-founded fear of persecution'. Section 5J(4) then provides that, relevantly, in assessing that question if a person feared persecution the decision maker is to be satisfied that 'the persecution must involve serious harm'. 'Serious harm' is defined in s 5J(5) in these terms: Meaning of well-founded fear of persecution … (5) Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph: (a) a threat to the person's life or liberty; (b) significant physical harassment of the person; (c) significant physical ill-treatment of the person; (d) significant economic hardship that threatens the person's capacity to subsist; (e) denial of access to basic services, where the denial threatens the person's capacity to subsist; (f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person's capacity to subsist. 24 Viewed in the context of these paragraphs it seems to me that the better reading of [64] is that the discrimination referred to in that paragraph is a residual low level of discrimination which it was prepared to assume in the Appellant's favour having rejected his much more serious claims of actual discrimination. That being so, I do not think that it is open to infer under Yusuf that the Tribunal regarded the nature of the discrimination as immaterial to its reasoning. 25 The question of whether some matter is a mandatory relevant consideration is to be determined by reference to the subject matter, scope and purpose of the legislation in question: Minister for Aboriginal Affairs v Peko-Wallsend [1986] HCA 40; 162 CLR 24 at 39-40. In this case, I do not see how the questions posed by s 5J(5) can be answered without taking into account the nature of the harm in question. However, that is not a necessary question for me to decide in this case. Assuming in the Appellant's favour that the nature of the discrimination was a mandatory relevant consideration for the exercise of the Tribunal's power of review, I do not think it can be successfully shown that it failed to take the matter into account. 26 The final aspect to Ground One was that the Tribunal had failed to ask itself whether the Appellant would be attacked by members of the AL or other criminal gangs if repatriated. This argument must fail on the facts. At [60] the Tribunal said this: The Tribunal does not accept that the applicant is of adverse interest to the AL, its members/supporters, a criminal gang or the Bangladeshi authorities. It follows that the Tribunal is not satisfied that there is a real chance that the applicant will suffer serious harm at the hands of the AL, its members/supporters, a criminal gang or the Bangladesh authorities if he returns to Bangladesh. 27 It must follow from this statement that the Tribunal did ask itself these questions.

Ground Two 28 Ground Two involved, in part, a submission that the Tribunal had failed correctly to assess whether a 'period of detention' could be 'serious harm' for the purposes of assessing whether the Appellant was a refugee under s 5J of the Act or whether, even if not a refugee, he had an entitlement not to be refouled. 29 This submission rests upon an assumption that the Appellant had advanced to the Tribunal an argument that if he were returned to Bangladesh he might be imprisoned for some period of time. In some nations it is an offence to leave the jurisdiction illegally and there are examples where failed asylum seekers have, upon repatriation, been imprisoned. This claim has been made in cases involving Sri Lanka before (see, eg, QLN147 v Republic of Nauru [2018] HCA 41; 92 ALJR 874 at 875 [4]-[6]) and the claim has certainly been made in this Court by Bangladeshis claiming to be BNP supporters (see, eg, BJB16 v Minister for Immigration and Border Protection [2018] FCAFC 49; 260 FCR 116 at 122 [29]). In this case, however, the Appellant has never made such a claim. Consequently, it is difficult see how the Tribunal can be said to have erred in its treatment of an issue with which it did not in fact deal and which was not raised for its consideration. This was the view of the judge in the Court below: at [68]-[70]. In this her Honour did not err. 30 Another aspect of Ground Two was a contention that the Tribunal had failed to apply the correct test in assessing whether the Appellant was likely to suffer harm if repatriated for the purposes of assessing complementary protection. The contention was pursued upon the assumption made explicit in the particulars to Ground Two that the Tribunal: had found that the Appellant was outside his country of nationality and had no right to enter any country other than Bangladesh; accepted that the fish farm had been destroyed by criminals, that his family had been attacked and that his dog had been burnt alive; and accepted that BNP activists and leaders were attacked by the AL and the government (noting the AL is in government). 31 There is no doubt about the first point which has been accepted by both parties to this litigation but by itself it goes nowhere. The remaining two points are, with respect, somewhat confusing. The Tribunal did not make the second finding at all. Indeed, it was explicit in saying that it thought the Appellant was lying about the attacks on the fish farm and his home. And, as to the third bullet point, the Tribunal found that the Appellant had no involvement in the BNP and consequently made no such finding. Leaving aside the issue of ethnicity which I have noted above, the Tribunal's basic reasoning was that the Appellant had not been involved in the BNP, had not been attacked and consequently, at least on that score, there could be no risk of harm to him. In that circumstance, no question can arise as to what the appropriate level of harm might need to be. The Court below arrived at the same conclusion (at [70]-[73]) and it did not err in doing so.

Ground Three 32 Ground Three involved a complaint about the manner in which the Tribunal reasoned in relation to the incident at the fish farm on 4 January 2013. The manner in which the ground was articulated in the notice of appeal was not altogether clear. The Court below treated it as a challenge to the Tribunal's fact finding. It was articulated as follows: The Tribunal find that the applicant fish farm was set alight but the men did not take any fish from their farm. Though his father did inform the police [about] the incident but the police did not any response/steps to make an inquiry … Particulars (i) The Tribunal find that the miscreants did not come to steal or rob the fish. (ii) AL Goons came to applicant father fish farm to harm the applicant and his father as the applicant involved in BNP politics the miscreant did not come to rob the fish farm of the applicant father. (iii) The Tribunal fell in to error as [it] failed to differentiate whether the AL criminals or other criminals destroyed the farm to harm the applicant and his father physically and economically due applicant's political background. The criminals did not come to the farm to steal the fishes. 33 It will be recalled that the delegate had accepted that this incident had occurred but also thought that the AL members who had carried it out had been actuated by a desire to steal fish from the fish farm rather than by any desire to persecute the Appellant for political or racial reasons. The delegate found that the Appellant's father had then complained to the police and that it was this complaint which had provoked the second attack on the Appellant's home on 27 January 2013 (during which his dog had been doused in petrol and burned alive, with a threat to do the same to the Appellant). 34 The Tribunal, by contrast, had concluded that the Appellant's account of these two incidents was fabricated. It was explicit in rejecting these two claims at [59] on the basis that it did not accept that the Appellant was involved with the BNP. It rejected the contention that criminal gangs might have been extorting fish on the same basis, namely, that it did not accept that he was involved in the BNP. 35 However, it is difficult to make sense of this reasoning. If the attack had been launched by a criminal gang (rather than the AL) there was no reason to think that the Appellant's support for the BNP would have been of any relevance to them. On this hypothesis, the Appellant had fallen prey to fish bandits, not partisans. The Tribunal rejected this part of the case because it was satisfied that the Appellant had not participated in the affairs of the BNP. But this makes no sense at all. If the Appellant was falling prey to fish bandits (who were not partisans) presumably the bandits were unconcerned with whether he supported the BNP or not. What they cared about was the fish. The actual reasoning by the Tribunal was as follows (at [59]): The Tribunal does not accept that the applicant or his father were supporters of the BNP or perceived to be supporters of the BNP. It follows that the Tribunal does not accept any of his claims that flow from that. The Tribunal does not accept that the incidents that the applicant claims took place on 4 January 2013 and 27 January 2013 did in fact take place. It follows that the Tribunal does not accept any of his claims that flow from these two incidents. The Tribunal does not accept that members/supporters of the AL or, alternately, a criminal gang extorted fish and threatened the applicant's family in June 2014. The Tribunal does not accept that members/supporters of the AL or, alternatively, a criminal gang are looking for the applicant with the intention of harming him. 36 This reasoning is, in my view, illogical. Further, based on what the Tribunal had said about the nature of the criminal gangs in question (viz very little), I cannot say that that the conclusion it arrived at was or was not open. One just does not know. In that sense, the rejection of the criminal gang case on the basis of his non-involvement in the BNP is like sending the soup back to the kitchen because the butter is off. In other words, this is reasoning where there is no logical connection between the finding and the inference drawn and is reviewable as an example of legal unreasonableness leading to jurisdictional error: BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94 at [34]. The Tribunal went on to find at [60] that the Appellant was of no 'adverse interest' to a criminal gang but the only reason which supports that contention is the one given in [59] that he had not supported the BNP. If that is what [60] is referring to then it fails for the same reason [59] fails. If that is not what [60] is actually referring to then whatever it is that led the Tribunal to think that the Appellant would not be of 'adverse interest' to a criminal gang was a matter about which, ex hypothesi, it made no finding. Applying once again s 430(1)(c) and Yusuf one could conclude, and I do, that the Tribunal did not regard the factual reasons why the Appellant would not be of 'adverse interest' to a criminal gang as being a material matter for the performance of its functions. Consequently, I conclude that it did not take the matter into account. 37 That matter was a mandatory relevant consideration because the Act required the Tribunal to determine whether the Appellant was a refugee and this in turn, through s 5J, required it to assess whether he would suffer serious harm if returned. Where a contention was raised that he would be harmed by a criminal gang, that function could not be performed without assessing whether the criminal gang was a threat to the Appellant. Consequently, the Tribunal was bound to consider whether the criminal gangs were a threat to the Appellant. The extent of the required consideration of that issue was of course a matter for the Tribunal but it could not, as it did here, ignore it and merely conclude that he would be of no adverse interest to the gang. 38 There are therefore two ways of reading [59] but both result in error. 39 I raised this issue with the parties for further submission and received from them submissions about it. The Minister submitted, and I accept, that read in its fuller context the Tribunal had other reasons for rejecting the case so far as it was based on the actions of a criminal gang. He drew particular attention to [37]-[39] and [45]-[48]. In a nutshell in those paragraphs the Tribunal indicated that it rejected the Appellant's account of what had happened at the fish farm because of inconsistencies it had detected in his account. That reasoning was disconnected from his membership of the BNP. Although, therefore, [59] is infelicitously expressed I do accept that the Tribunal had other coherent reasons for rejecting the Appellant's account. The case, therefore, is not one where one can say that the Tribunal could not arrive at the conclusion that it did. Rather it was one where it arrived at a conclusion for two reasons, one of which was incoherent. However, the existence of the alternative logical path renders it impossible to say that the decision was legally unreasonable: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at 649-650 [135]. 40 A second aspect of this ground concerned the delegate and Tribunal's findings that whichever group had attacked the fish farm had left without taking any fish. The Tribunal noted the Appellant's claim that during the first attack he had told the delegate that a shelter had been set alight and that this had not been mentioned in his protection visa application. This failure went to his credit. Yet the delegate had not thought this reflected on his credit and the Tribunal did not explain why it did affect his credit. In fact, it is quite apparent that the claim in the protection visa application was cast at a very high level of generality: 8. On the 4th of January 2013, about 8 members of the Awami League Party came to my father's place of business and asked for money and fish. 9. My parents are from India and I believe that this has played a role on them picking my father to ask for money. 10. I refused to give them anything and we got into an argument. They threatened to kill me and I pushed one of the men and started running away. 11. They then threw an explosive device towards me but I was already a distance away from them so I was not hurt. 41 This was summarised by the delegate under the heading 'Claims for Protection'. It said this of his evidence: Based on the applicant's responses at interview and country information available to me I accept that individuals from the Awami League attacked the applicant as he stated on 4 January 2013 at his family's fish farm and on 27 January 2013 at his family's home. The applicant also claims that when the AL came to his house they burnt his family's dog, threatening that if they found him they would do the same. I accept that these events occurred and that the applicant was threatened. However, I have concerns relating to the claimed reasons for these attacks. 42 The Appellant also told the delegate that during the first attack the people had left without taking any fish. The delegate said this: With both incidents, I have concerns regarding their conclusions. In the first incident the applicant was able to escape the AL after they attacked him, leaving his family's fish farm unattended. The applicant claims that the AL burnt down a 'cottage' he slept in while working, but left without taking any fish. Given that he claims he overheard them talking about their intention to steal fish, I find it hard to believe they would then leave without doing so when there was no one to stop them. Similarly, in relation to the second incident I find it hard to believe that a group had intended to kill the applicant would leave his home without any reason to do so. Having said that, I cannot rule out that these incidents happened as the applicant gave a consistent account of the events and the AL have been known to engage in violence against BNP supporters. As such accept [sic] that the events occurred as stated. 43 The Tribunal also thought it was implausible that the members of the AL would leave without taking any fish if their purpose was to extort the Appellant to obtain money or fish and this was more so where the Appellant had claimed to have run away and left the fish farm unattended. This is an issue on which minds may legitimately differ. I am not prepared to say that this reasoning is untenable. 44 The final aspect of this ground concerned the Tribunal's findings about the Appellant's father's approach to the police. The Tribunal thought that the Appellant's claim that his father had reported the first incident to the police was inconsistent with his evidence that the police did not act on the report and that there was no point in reporting things to the police as they were corrupt. It then said this at [44]: The Tribunal finds it implausible that the applicant's father would have reported this incident to the Police in light of the applicant's conflicting evidence. Firstly, if it was the case that his father reported the first incident to the Police, the Police investigated it and this lead to these people attacking their house and killing their dog, then a further report to the Police would have only aggravated the situation and invited more problems for his family. Secondly, if, alternatively, his father reported the first incident to the Police and they did not respond there would have been no point in reporting the second incident to the Police. 45 I am not sure I would embrace this reasoning if the choice were mine. In particular, the structure of the argument is such that regardless of the outcome of the nature of the police's investigation the result is always that the Appellant's father would not have made the second complaint. He would either fear further retribution or he would have perceived the process to be pointless. It occurs to me that this may involve an assumption about the range of possible responses by the father which may not be altogether sound. However, I am not prepared to say that this is reasoning which is irrational or that the result - non-belief of the Appellant - was a result at which the Tribunal could not arrive.

Ground Four 46 Under this heading the Appellant submitted that the Tribunal had failed to consider his claim that he was a member of a particular social group consisting of BNP supporters or persons of Indian ethnicity. It is irrelevant whether one puts this case on the basis of political opinion, race or membership of a particular social group. The fact is that the Tribunal expressly considered his claims based on support for the BNP and Indian ethnicity. The primary judge's conclusion to the same effect was correct.

Ground Five 47 By Ground Five, the Appellant submitted that the Tribunal had failed to comply with s 425 of the Act. Section 425 requires the Tribunal to invite an applicant to appear before it to give evidence and present arguments relating to issues arising out of the decision under review. A line of cases of which perhaps Minister for Immigration and Multicultural Affairs v SCAR [2003] FCAFC 126; 128 FCR 553 ('SCAR') is the best known establish that this invitation must be meaningful. And, it has been held - perhaps not altogether plausibly - that this obligation means that if an applicant is unfit to take part in the hearing then the invitation will not have been meaningful: cf Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41; 183 FCR 575 at 593-594 [73]. 48 The notice of appeal did not expand on what the problem with the hearing had been other than that it had been procedurally unfair because the Tribunal was only asking questions which permitted of 'yes' or 'no' answers. I do not accept that this was procedurally unfair in this case although, as noted above, in an appropriate case it might disclose bias. It is apparent from the reasons of the Court below that the issue relied upon in that Court was that the Appellant had been 'feeling down' at the time of the hearing. Assuming that he was feeling down, this would not be sufficient to engage SCAR. The disability claimed must be sufficient, in that it can be said that the hearing contemplated by s 425 did not take place. Accepting that feeling depressed would not assist an applicant in the presentation of their case, I do not accept that it would have the consequence that it can be said that no hearing took place. The Court below reasoned in a similar fashion (although it would not have made the assumption in favour of the Appellant that I have).

Ground Six 49 This ground related to a contention that the Tribunal had applied an incorrect test in dealing with the Appellant's claims based on detention. However, as already noted, the Appellant made no such claim to the Tribunal so this ground does not appear to relate to this case. It was also said that the Tribunal had failed to address his claim based on discrimination but this is not correct either. It accepted that he might be subject to some discrimination but did not think it would constitute serious harm under s 5J.

Conclusions 50 Although the Tribunal's zealous conversion of every particular of inconsistency into a lie troubles me, I have been unable to detect any reviewable error. The appeal will be dismissed with costs. I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram.