DSN17 v Minister for Immigration and Border Protection

The IAA's decision 15 On 1 March 2017, the delegate's decision was referred to the Immigration Assessment Authority (the "IAA"). 16 On 1 August 2017, the IAA affirmed the delegate's decision. 17 The IAA summarised the appellant's claims as follows: • He was born in 1988 in Kapashkandi Village, Comilla District in Chittagong, Bangladesh. • He is of Bengali ethnicity and a Sunni Muslim. • He is married with one child and worked on his father's land, farming crops. • He was forced to leave Bangladesh because he felt at risk of harm from the AL who harmed him on two separate occasions. • In about 2010 he was helping his friend with his chicken farm when members of the AL approached him and told him to associate with them rather than the BNP. They were concerned about his father's connections to the BNP as he was always associated with BNP members and went to BNP events. • He told them he had no interest in politics and had no involvement with any party. They were unhappy when he expressed no interest in joining them so they attacked him. They kicked and hit him and lacerated his leg with a small knife. • About a year before he came to Australia in early 2012 he was again accosted at work and attacked by members of the AL. He was taken outside the welding shop where he was working at the time and was kicked, hit and beaten to the extent he needed stitches. This was precipitated by him declining an invitation to come to one of their events on that day. He said he could not come as he needed to stay at work to support his family. • In town, membership of each party is well known and on both occasions, he knew AL members were attacking him. As far as he is aware the attackers continued to live near his family. • In the period between the second attack and leaving for Australia, about 12 months, he kept a low profile avoiding the AL. • He did not mention his father's association with the AL in his initial interview because he was scared and the interview was more concerned with his voyage to Australia. • He did not contact the police in Bangladesh because they are corrupt, would have asked him for money and not helped him. He could not ask the BNP for help as he was not associated with them. • He cannot relocate anywhere else in Bangladesh because that would mean leaving his family, leaving them without support and in Bangladesh it is extremely difficult to move. He would have to sell his property and this would make the AL suspicious and make him a greater target. • He fears the AL on his return to Bangladesh as they perceive him as being associated with the BNP. He cannot convince them that work commitments prevent him from attending AL events. 18 As to the appellant's claim that his father was connected with the BNP and was always associated with the BNP's members and events, the IAA found at [10] that the appellant was "not being inconsistent in relation to [the father's association with the BNP] rather he seemed confused". The IAA then went on to say that, "having listened to the recording [of the interview between the department and the appellant] I am of the view the [appellant] was confused by the delegate's style of questioning and he was not deliberately being misleading or inconsistent in this regard". 19 However, the IAA said this at [14]: 14. I am not satisfied the applicant's father had a strong association with the BNP or its leaders. I am willing to accept his father may have supported the BNP on a basic level, that in the past he voted for the BNP and may have attended the odd rally, meeting or demonstration but I do not accept that the BNP leaders called upon him or relied upon him in [any way] or that he held a position of influence. I consider the [applicant] has embellished his father's profile within the BNP in order to enhance his own claims for protection. The applicant provided only vague general statements as to why his father was important to the BNP. In addition, the applicant made no mention of his father's involvement in BNP politics in his "arrival entry" despite being asked whether he or any of his family members had been associated or involved with any political groups. I reject the applicant's reasons as to why he did [state] "no" when asked whether his family members were involved in political groups, that he was scared. This is discussed further below. I am satisfied the applicant himself was not a BNP supporter as claimed. 20 As to the appellant's claim that he was attacked by members of the AL whilst working on his friend's chicken farm in 2010, the IAA did not accept that this event occurred. The IAA Review said this: "I do not accept that if [the appellant] was genuinely fleeing to Australia to obtain protection that he would not disclose his fears when given the opportunity to [do so by] the interviewing officer": IAA decision at para 18. This was a reference to the appellant not disclosing his fear of the AL in his arrival entry interview. 21 The IAA emphasised that it was not only inconsistencies with the appellant's evidence that led the IAA to not accept his claim of being attacked in 2010. At para 20, the IAA said this: 20. It is not only inconsistencies between the applicant's "arrival entry" interview and PV interview which lead me to not accept his claim of being attacked in 2010. I have other concerns with regards to this claim. Firstly, I have not accepted his father had any high profile connection with the BNP or that he always associated with members of the BNP or went to BNP events. I have found his father to be at the very minimum a low [level] supporter. I do not accept they would attack the applicant to get back at his father. Secondly, the applicant's statement of claim made no reference to there being a demonstration at the time, only that he was approached and told to associate with them. Lastly, the applicant's description of the attack both in his statement of claims and at his PV interview I found simple, generic and lacking in substance. 22 The IAA then turned to the appellant's claim that in early 2012 he was "accosted" at his place of work and was attacked by AL members. After canvassing the appellant's claims, the IAA was not satisfied that the incident occurred. The IAA said this at para 24: 24. I am not satisfied this incident occurred. Firstly, like the incident in 2010 I do not accept the applicant was specifically targeted for declining an invitation to come to one of their events on that day. Firstly, there was no mention of this incident in his "arrival entry" interview and I have not accepted the applicant's claim that he was scared and afraid to mention the true reasons for him seeking asylum in Australia. Secondly, in his statement of claims the applicant said it was early 2012 that he was attacked; however, at his PV interview he claimed it was in late 2012. In his statement of claims the applicant stated he remained 12 months in his village before departing whilst his attackers continued to live near his family. I note the applicant claimed he kept a low profile in order to avoid AL members and that nothing happened to him but if he were really of interest to the AL they would have easily been able to find him given he remained in his village for a not inconsiderable period of time. Lastly, in both his "arrival entry" interview and PV application, the applicant stated he worked as a welder only between 2008 and 2009. Up until June 2012 he was working as a cleaner on a friend's farm and between 2002 and January 2013 he helped his father on their farm (PV application). This does not correspond with his claim he was working as a welder in 2012 when attacked. 23 The IAA also did not accept that the appellant would have had no knowledge of whether anyone else was harmed during the incident or that it would not have been discussed in his home village. The IAA considered that the appellant had fabricated this claim: IAA decision at para 25. 24 The IAA was not persuaded by the appellant's clam that "he was of interest to the AL because they believe he might one day choose to join the BNP as his father was involved in BNP politics": IAA decision at para 25. 25 The IAA then turned to the appellant's claim that his younger brother had been "beaten up" in Malaysia in 2016, about seven to eight months prior to his arrival interview. 26 The IAA said this about that claim at para 27: 27. I do not accept the applicant's brothers have been harmed for political reasons or for any association his family may have with the BNP or for their failure to participate in AL rallies. It is plausible his older brother may have been caught up in a rough crowd in Comilla but I am satisfied that he went to Malaysia not to escape harm but for work purposes. A significant number of Bangladeshis continue to seek higher wages overseas: as of early 2016, there were an estimated 8.6 million Bangladeshi migrants worldwide. Bangladesh received over USD 13 billion in remittances in 2015, which accounted for approximately 12 per cent of gross domestic product. DFAT assesses that perceived poor economic prospects within Bangladesh and opportunities to gain relatively high wages overseas are key 'push' and 'pull' factors for external migration. Given the applicant's overall lack of credibility I am not willing to accept his other brother was beaten by the AL for becoming involved with BNP 'boys'. [footnotes omitted] 27 The IAA concluded that the appellant is not a person who is unwilling to return to Bangladesh "owing to a well-founded fear" of persecution for the contended reasons and thus the appellant did not satisfy s 36(2)(a) of the Act. As to the claim to complementary protection, the IAA examined the statutory notion of "significant harm" for the purposes of s 36(2A) and reached these conclusions at paras 37 and 38: 37. I have not accepted the applicant's claim that he was attacked in 2010 or in 2012 by AL members because of his father's connections to the BNP or because of his refusal to take part in AL rallies. I have found that the applicant does not face a real chance of suffering serious harm, or harm of any kind, from the AL, or as a result of his father being a low level supporter of the BNP or for his illegal departure from Bangladesh, or as a returning asylum seeker now or in the foreseeable future. There is, similarly, no real risk that the applicant would suffer significant harm upon his return to Bangladesh on these bases. 38. There are not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm. The applicant does not meet s 36(2)(aa). 28 The IAA affirmed the delegate's decision.

The Federal Circuit Court's decision 29 On 18 August 2017, the appellant filed an application in the Federal Circuit Court of Australia seeking judicial review of the decision of the IAA. The appellant sought 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. On 20 November 2017, the appellant filed an amended application in the Federal Circuit Court. 30 In the amended application, the appellant relied upon the following grounds: 1. In making decision, the Immigration Assessment Authority acted without jurisdiction or in excess of jurisdiction when it failed to take into account relevant consideration. 2. The AA failed to assess my harm on the basis of my claims. 3. The tribunal failed to assess the present situation in Bangladesh since I left. 4. The tribunal decision effected by the denial of natural justice. 5. The tribunal made decision without verification of my genuine documentary evidence and statement. 6. The Tribunal decision is identical or similar or based of the Departmental decision. Complete violation of merit review procedure. As [p]revious reported cases of federal court findings that the complementary protection obligation. 7. And also, IAA decision dated 01/08/2017 did not follow the proper guideline of procedure and also the Federal [C]ourt findings in the [judgment] that complementary protection obligation of Australia. 8. The honourable IAA member DECISION DATED 01/08/2017, in her FINDINGS AND REASONS (page 3 paragraph 8) clearly indicate that the IAA also finds the letter of support from BNP to be problematic and has given it no weigh[t]. Unfortunate[ly], the honourable member did not [recognize] Bangladesh is a level of third world country and also most of the people are not well educated. In my review decision, the IAA did not review with the complementary protection criterion. Because Federal Court recent case reference SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235. The referred case by honourable IAA is not very much similar to my claims. I will put details in my written submission later. 31 The appellant gave the following particulars of those grounds: IAA unreasonably raised doubt over my claims for political opinion. The Department and the Tribunal misunderstood or misconstrued the facts which [affected] the decision. And for the safety of my life I forced to [come to] Australia by boat. When it became worse, I decided to leave Bangladesh. I argue that the Department and the IAA asked many irrelevant questions to test the credibility of my evidence. The Department and the Tribunal found inconsistency because the questions were asked in such a manner for which I was not prepared. Sometimes I was nervous and confused at the time of interview with the Department & the tribunal. I did not understand the question properly. For the protection of my life and I became serious target by the Police, Awami League gang and their activist. The Department has accepted that I was very confused. I, myself was not understanding what answer I was giving for what question. I believe I was denied procedural fairness when the hearing was conducted not freely and fairly. I did not collect the IAA interview CD. After received the CD, I will provide the transcript of IAA hearing. 32 On 21 June 2018, the primary judge delivered reasons for judgment dismissing the amended application with an order for costs. 33 The primary judge considered the grounds of review asserted in the amended application together with the further grounds of review, raised with leave, in the written outline of submissions filed on 15 January 2018. 34 As to the first ground (that the IAA failed to take into account relevant considerations), the primary judge found at [25]-[26] that the IAA had not failed to take into account relevant considerations as the IAA had considered the information given to it by the appellant in his visa application; the information given in his protection visa interview; the information provided in the arrival entry interview; and, the IAA had considered relevant country information before it. The primary judge also correctly observed that the appellant did not particularise the "relevant considerations" the IAA was said to have failed to take into account. 35 As to the second ground (that the IAA failed to assess harm on the basis of the appellant's claims), the primary judge observed at [28] that "even a cursory examination of the [IAA's] reasons reveal that this claim has no substance". 36 As to the third ground (that the IAA failed to assess the present situation prevailing in Bangladesh in the period since the appellant left that country), the primary judge considered that the appellant did not discharge his onus of persuading the Federal Circuit Court that a matter had been overlooked such that the IAA fell into jurisdictional error. The primary judge observed that the IAA's assessment of the appellant's claim that his father's support of the BNP and attacks on the appellant and his brothers (and associated claims about any imputed association of the appellant with the BNP), did not depend on an assessment of the present situation prevailing in Bangladesh but rather an assessment as to contentions about past events. The primary judge also referred to the IAA's use of DFAT country information to form a view about the appellant's circumstances upon return to Bangladesh. 37 As to the fourth ground of review (that the IAA's decision was infected by a denial of procedural fairness), the primary judge said this at [34]-[39]: 34. There is nothing in the material before me to suggest that the second respondent did not afford the applicant natural justice, having regard to the statutory framework within which the second respondent conducted its task. Section 473DA of the Act provides that Division 3 of Part 7AA of the Act is an exhaustive statement of the natural justice hearing rule in relation to reviews conducted by the second respondent. The provision operates to exclude the common law natural justice hearing rule from the conduct of reviews before the second respondent: AFK16 v Minister for Immigration and Border Protection [2016] FCCA 1826; DBA16 v Minister for Immigration and Border Protection [2017] FCCA 320; DDK16 v Minister for Immigration and Border Protection [2017] FCCA 353. 35. In the particulars the applicant complains about the way the second respondent conducted the "hearing", alleging it asked confusing and irrelevant questions of the applicant. However, the particulars are misconceived because the second respondent did not conduct a hearing and nor was it required to do so. It conducted the review on the papers in accordance with s.473DB of the Act. 36. To the extent that the applicant's complaints relate to the interview before the delegate, the second respondent was prepared to disregard inconsistencies in the applicant's evidence regarding BNP and AL flags on the basis that the applicant was confused by the delegate's style of questioning on that issue. That demonstrates that the second respondent gave realistic and genuine consideration to the materials before it. 37. The applicant's written submissions make arguments based on s.424A and 424AA of the Act. However, those sections have no application here. The review was conducted under [P]art 7AA of the Act. Moreover, the applicant develops his argument by reference to a suggestion that he had become a member of the BNP. However, the material before me indicates that the applicant never claimed to be a member of the BNP. He disavowed such a notion. This submission tends to suggest that the written submissions relied upon by him have not been prepared for this case. 38. Further, the applicant submits that the second respondent denied him a hearing and did not make inquiries in circumstances that demanded that the second respondent make its own inquiries. Neither of these arguments can be made out. The second respondent was operating pursuant to Part 7AA of the Act and it was not obliged to conduct a hearing or obtain any additional information than that transmitted to it by the Secretary of the Department. 39. There is nothing in this ground of review. 38 As to ground 5 (that the IAA made a decision without any verification of the appellant's "genuine documentary evidence and statement"), the primary judge rejected the contention that the IAA had questioned the "genuineness of certain documentary evidence before it". The primary judge observed at [42] that if, by ground 5, the appellant meant to refer to his statement and visa application, the IAA was "not required to uncritically accept the submissions of the [appellant], and was entitled to make findings of fact reasonably open to it". In support of that proposition, the primary judge made reference to the observations in SZVTQ v Minister for Immigration and Border Protection [2016] FCA 929; (2016) 154 ALD 462. 39 As to ground 6 (that the IAA's decision is identical or similar or based on the delegate's decision and this is a "complete violation" of the merits review jurisdiction), the primary judge held that it was open to the IAA to give similar reasons to those in the delegate's decision based on its own consideration of the matters raised by the appellant. The primary judge considered that just because the IAA reached similar conclusions to those of the delegate, that did not indicate legal error. The primary judge considered that the IAA had engaged with the material before it and gave the material proper consideration: PJ at [45]. 40 Ground 7 is framed on the footing that the IAA's decision did not "follow the proper guideline of procedure and also the Federal [Court's] findings' in the [judgment] that complementary protection obligation of Australia [was engaged]". That sentence is essentially incomprehensible. However, the appellant seems to be trying to say that the IAA's decision did not reflect proper procedure and did not demonstrate an assessment of the proper basis upon which complementary protection obligations might arise according to the jurisprudence of the Federal Court of Australia and, in particular, the decision of the Federal Court in NAQS v Minister for Immigration & Multicultural & Indigenous Affairs ("NAQS") [2003] FCA 1137; (2003) 77 ALD 424. The primary judge considered that, to the extent that this ground challenges the IAA's findings on the complementary protection criteria, the IAA applied the correct legal test under ss 36(2)(a) and 36(2)(aa) of the Act. The primary judge also considered that, to the extent that the appellant relied upon Hill J's decision in NAQS at [8], that was a decision with respect to Part 7 of the Act, as opposed to Part 7AA which contains a different procedure. 41 As to ground 8 (that the IAA considered a letter of support from the BNP to be "problematic" and gave it no weight; and the IAA did not recognise that Bangladesh is a third world country), the primary judge considered that "this ground best demonstrates that the [appellant's] written submissions have not been prepared with an eye to his particular claims and application". The primary judge said that no letter of support was before the IAA when it made its decision; no such letter was given to the delegate; and none was produced to the Federal Circuit Court. The primary judge also held that Bangladesh's status as a third world country is not a relevant consideration and, in any event, the IAA considered country information on Bangladesh and its poor economic prospects. 42 The primary judge, having dismissed each of the grounds of review, dismissed the appellants' amended application.

The appeal to the Federal Court 43 This proceeding is brought by way of appeal from a judgment of the Federal Circuit Court of Australia and, accordingly, the appeal is conducted as a re-hearing. The standard of appellate review to be discharged by a single judge exercising the appellate jurisdiction of the Court in this case (as it would be if the appellate jurisdiction was exercised by a panel) in conducting an appeal by way of re-hearing, within the limits of the grounds of appeal identified by the appellant, is the "correctness" standard discussed by Gageler J in Minister for Immigration and Border Protection v SZVFW ("SZVFW") [2018] HCA 30; (2018) 357 ALR 408. Thus, the question is whether the primary judge was correct or incorrect, within the limits of the contended grounds of error, in dismissing the application for supervisory review of the decision of the IAA within the principles defining the grant of the constitutional writs for the purposes of para 75(v) of the Constitution. In conducting an appeal by way of re-hearing according to the correctness principle, the Court will give respectful consideration to the reasons given by the primary judge for reaching the conclusion under appeal as part of the process of forming its own conclusion. However, the Full Court or a single judge exercising the appellate jurisdiction of the Court will give effect to its own conclusion if its own conclusion differs from that of the primary judge: SZVFW, Gageler J at [27]. 44 The grounds of appeal to this Court are set out at [3] of these reasons. 45 In support of the appeal, the appellant affirmed an affidavit on 4 July 2018. The appellant deposes to the following matters: 1. I am the Appellant of the Notice of Appeal Application. 2. The Federal Circuit Court Judge JARRETT dismissed my judicial Review application BRG792/2017 without giving any reasonable grounds. 3. There were arguable grounds to the judicial review application, but unfortunately the [F]ederal Circuit Court Judge failed [to take] into account all relevant grounds when making decision. 4. I [believe] that the Federal Circuit Court breached the rules of natural justice and procedural fairness when making its decision. 5. I do believe and stated in the brief description that I have genuine fear of persecution. If I am compelled to go back to Bangladesh. I will be persecuted by the present ruling government. Relocation is not possible in any part of Bangladesh; I have no genuine protection for my life. 6. I appeal to the Court to reconsider my case for complementary Protection. 7. The Federal Circuit Court Judge JARRETT failed to identify the error made by the Immigration Assessment Authority. 46 The appellant has filed no written submissions and made no oral submissions through his interpreter at the hearing. 47 The Minister has filed written submissions and made no oral submissions at the hearing. 48 The first ground of appeal asserts that the primary judge failed to find that the IAA failed to find any evidence to support the appellant's claims and/or that the IAA failed to seek out evidence to support the appellant's claims and thus the primary judge's decision is attended by doubt. This ground of appeal asserts, in effect, that the IAA fell into error because it did not examine the evidence supporting the appellant's claims or, more particularly, did not seek out evidence to support the appellants' claims. The Minister submits that the appellant was required to make out his own case before the IAA and to provide the IAA with the relevant material: see SZNBX v Minister for Immigration and Citizenship [2009] FCA 1403; (2009) 112 ALD 475 at [29]. The IAA had no obligation to seek out information to assist the appellant in making his case (see, generally, CMR16 v Minister for Immigration and Border Protection [2018] FCA 916) and, in circumstances where the IAA addressed the key integers of the appellants' claims, no error is demonstrated. 49 Accordingly, ground 1 must fail. 50 Ground 2 asserts, in effect, that the primary judge failed to hold that, firstly, the IAA did not separately deal with the factual issues raised and, secondly, that the IAA did not understand that low profile people are targeted in Bangladesh. Ground 2 also asserts that the primary judge failed to find error in the conclusion of the IAA that the appellant would not suffer significant harm. 51 As to these matters, the primary judge's reasons addressed each of the grounds raised by the appellant before his Honour. Those grounds raised the matters now agitated by the appellant. The IAA considered country information concerning the current state of Bangladesh and concluded that there was no risk of harm to the appellant. The appellant, by this ground, simply disagrees with the findings of the IAA. In circumstances where the IAA has considered the claims made by the appellant and the evidence said to support those claims, there is no proper basis for a challenge to the findings made by the IAA except to generally say that they are disputed. No proper basis for a challenge has been identified. 52 Accordingly, ground 2 must fail. 53 Ground 3 asserts that the IAA denied the appellant procedural fairness; did not consider the current situation in Bangladesh; and did not understand the danger of the appellant returning to Bangladesh as a "failed asylum seeker". 54 There is no basis for the appellant's complaint that he has been denied procedural fairness. The obligations cast upon the IAA by Part 7AA of the Act have been discharged and the integers of the appellant's claims have been correctly identified and addressed. The IAA was unable to reach a state of satisfaction about the relevant matters for the purposes of s 36(2)(a) and s 36(2)(aa) of the Act. As to the allegation that the IAA did not understand the danger to the appellant of returning to Bangladesh as a failed asylum seeker and did not correctly assess the contended current situation in Bangladesh, the IAA considered all of these matters at [29]-[33] of its reasons. As the primary judge observed at [30], the appellant has not identified any material concerning Bangladesh that the IAA failed to consider. By ground 3, the appellant says that the IAA failed to address the circumstance in Bangladesh that "thousands of [BNP] workers are arrested and killed by so called crossfire and harassed by the autocratic present [AL] Government Authority". There is no basis for this claim. The IAA examined the claims made by the appellant and was not persuaded about the truth of those claims. Moreover, it found that particular claims were fabricated and noted that the appellant attempted to persuade the delegate that he was of interest to the AL because the AL believes he "might one day choose to join the BNP as his father was involved in BNP politics". The IAA looked at that claim itself and was not persuaded by it. Moreover, the IAA notes that the appellant stated at the beginning of his protection visa interview that none of his brothers were interested in politics. The IAA did not accept that the appellant's brothers had been harmed for political reasons or for any association his family may have had with the BNP or for their failure to participate in AL rallies. 55 Accordingly, ground 3 must fail. 56 Ground 4 asserts that the IAA did not follow the procedure in Part 7AA of the Act in arriving at its decision. No basis is identified for that contention. As to that matter, these things can be said. The refusal decision having been made by the delegate, the decision was referred to the IAA as required by s 473CA of the Act. The "review material" contemplated by s 473CB(1) was given to the IAA in respect of the refusal decision the subject of the review before the IAA. The refusal decision was reviewed by the IAA in discharge of the statutory obligation arising under s 473CC by considering the review material given to it by the Secretary under s 473CB, as required by s 473DB of the Act. No basis is demonstrated for the suggestion that the IAA failed to comply with the procedure required by Part 7AA of the Act. 57 Accordingly, ground 4 must fail. 58 As no error has been demonstrated on the part of the primary judge having regard to the grounds of appeal agitated by the appellant and no other error is evident in the conduct of the statutory review function of the IAA, the appeal to this Court must be dismissed with costs. I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood.