DSN17 v Minister for Immigration and Border Protection

1. The appeal is dismissed.
2. The appellant pay the first respondent'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.

GREENWOOD J: 1 In this proceeding the appellant appeals from the whole of the judgment and all of the orders delivered on 21 June 2018 in the Federal Circuit Court of Australia, constituted by Judge Jarrett (the "primary judge"): see DSN17 v Minister for Immigration & Anor [2018] FCCA 1631. 2 The primary judge made orders that the appellant's amended application be dismissed with costs. The appellant appeared before this Court in person. Because the appellant appeared in person without the assistance of any legal advisers, I propose to set out aspects of the basis upon which the delegate reached a decision to refuse the grant of a Safe Haven Enterprise (Subclass 790) visa (a "Safe Haven visa"); examine the content of the decision by the Immigration Assessment Authority ("IAA"); examine the reasons for decision of the primary judge; and examine the grounds upon which the appellant contends for error on the part of the primary judge and jurisdictional error on the part of the IAA. 3 By the notice of appeal, the appellant relies upon the following grounds of appeal: 1. The judge of the Federal Circuit Court in his honourable [judgment] delivered on the 21 June 2018 failed error of law and relief under the [J]udiciary Act. He failed to find that the Immigration Assessment Authority IAA has not found any evidence in relation to my claims and thus its decision influenced by sufficient doubt. 2. Honourable Judge failed to hold that the IAA made an error of law when it did not take up and separately deal with the factual issues. The IAA failed to find low profile political activists are mostly persecuted because of their role for the party like Bangladesh Nationalist Party (BNP). The IAA failed to understand the persecution until political killing in Bangladesh under present dictatorial role in Bangladesh. The IAA member concluded that I will not suffer from any harm if I go to Bangladesh, which is not feasible. 3. I was denied procedural fairness when the IAA member made [an] opinion based on assumption and possibilities without any proper investigation. The IAA failed to assess the current situation in Bangladesh where thousands of Bangladesh Nationalist Party (BNP) workers are arrested and killed by so called crossfire and harassed by the autocratic present Awami League Government Authority. In assessing danger to me, the IAA undermined the danger I will face if I am compelled to return to Bangladesh as [a] returned asylum seeker. And also, I came by boat in Australia only [to] protect my life. 4. Besides, the Immigration Assessment Authority did not follow the proper procedure as required by the Act in arriving [at] its decision dated 1st August 2017 in deciding my protection visa merit review application. Thus, the procedures that were required by the act or regulations to be observed, in connection with the making of the decision were not observed. 4 The appellant seeks an order setting aside the orders of the primary judge given on 21 June 2018 and an order for the grant of the constitutional writs quashing the decision of the IAA and remitting the matter to the IAA to be determined according to law. The appellant also seeks an order that no action be taken to remove him from Australia pending the resolution of a reconsideration of the matter by the IAA, and an order for costs. 5 The appellant is a Bangladeshi man who arrived in Australia on 21 February 2013 as an unauthorised maritime arrival. On 2 August 2016, the appellant applied for a Safe Haven visa. 6 On 23 February 2017, a delegate of the Minister refused the appellant's visa application. The reasons for the refusal decision are set out in the delegate's record of decision. 7 The delegate found that the appellant is not a person to whom Australia owes protection obligations for the purposes of s 36(2)(a) or s 36(2)(aa) of the Migration Act 1958 (Cth) (the "Act"). The delegate also found that the appellant is not a member of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations and who holds a protection visa of the same class as that applied for by the appellant: s 36(2)(b) and s 36(2)(c) of the Act. 8 The delegate summarised the appellant's claims as follows: • He is of Bengali ethnicity, born on 10 February 1988 and follows the Sunni Muslim faith. • His father was a supporter of the Bangladesh National Party (BNP). Although his father was not a member he would attend BNP rallies, meetings and demonstrations. He was considered by the local people to be an active supporter of the BNP. • Although his father was a supporter of the BNP, the applicant was not interested in politics and had no political affiliations. Whilst the applicant was living in Bangladesh he was attacked by members of the Awami League (AL) on two occasions. • The first attack occurred approximately in 2010 when the applicant was working on a friend's chicken farm. The applicant claims that he was alone on the farm when a group of AL boys who were in a procession came and told the applicant to join the procession. When the applicant refused, he was attacked and injured. • Approximately 2 years later in 2012, the applicant was again attacked by AL members. On this occasion, the applicant was working in a welder's shop in the local bazaar. A procession of AL members came past and attacked the applicant when he refused to participate. The applicant was hit on the head and taken to a medical clinic for treatment. • After the second attack, the applicant was fearful that he would be attacked again so he left Bangladesh for Australia. • The applicant claims that whilst he has been in Australia, his youngest brother was also attacked by AL members and has now left Bangladesh for Malaysia. The applicant claims that another brother who is still in Bangladesh also occasionally gets beaten up by AL members when he refuses to participate in rallies and demonstrations. 9 The delegate accepted that the appellant was born on 10 February 1988; that he follows the Sunni faith; and that the appellant's brother is now living in Malaysia. 10 However, the delegate found that the appellant had "fabricated" the claims about the level of his father's involvement with the Bangladesh National Party (the "BNP") in an "attempt to strengthen his application"; and that the appellant's father was "not an active supporter [of the BNP] as claimed". The delegate did not accept that the appellant was attacked while working on a chicken farm. The delegate did not accept the appellant's claim that he was attacked in a local bazaar and the delegate did not accept, in the context of the credibility findings made about the appellant, that the appellant's family had suffered attacks in Australia. Accordingly, the delegate found that there is no real chance that the appellant would incur serious harm in Bangladesh (s 5J(4)(b) of the Act) for one or more of the reasons referred to in s 5J(1)(a) of the Act. 11 The delegate went on to consider an implicitly made claim that the appellant would suffer harm as a "failed asylum seeker". Whilst the delegate accepted that the appellant would be seen as a returning failed asylum seeker, the delegate, on the basis of DFAT and US State Department country information, found that there is not a real chance the appellant will face serious harm as a result of being a failed asylum seeker. 12 In reliance on Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; (2013) 210 FCR 505, the delegate considered that the test under s 36(2)(aa) (of whether there are substantial grounds for believing that as a necessary and foreseeable consequence of the non-citizen returning to Bangladesh there is a "real risk" that the non-citizen will suffer "significant harm"), gives rise to the same standard as to "real risk" for complementary protection as the "real chance" test imposes for the purposes of s 36(2)(a) of the Act. 13 The delegate concluded by saying that she was not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of being removed to Bangladesh, there is a "real risk" that the appellant will suffer "significant harm" for the purposes of s 36(2)(aa) of the Act. 14 Accordingly, the delegate found that the appellant is not a person in respect of whom Australia has protection obligations.