SZSHF v Minister for Immigration and Border Protection

background 1 The appellant is a Bangladeshi citizen. He arrived in Australia on 7 November 2010 as the holder of a valid Sponsored Family Visitor visa (Subclass 679). On 6 December 2010, he applied for a Protection (Class XA) visa. 2 The appellant claimed to be a supporter of the Jatiyatabadi Jubodal, a political party associated with the Bangladesh Nationalist Party (the BNP). The appellant claimed to have become a member of the Jatiyatabadi Jubodal youth branch in 2006 and to be a supporter and worker for the party, involved in activities such as putting up posters, distributing leaflets and inviting people to branch meetings. The appellant claimed he had been promised the position of President of the Ward of the BNP in his area of Dhaka, and that it was only his departure for Australia which prevented him from taking up this position. He also stated that his father, uncle and cousins were also involved in politics supporting the BNP. 3 As a result of their support of the BNP, the appellant claimed that he and his family had all, at various times, been beaten, harassed and threatened by the opposing Awami League (the AL). The appellant claimed that in June 2008, his father had been stabbed by the AL after he refused to accede to their demands for money. The appellant also claimed that in November 2008, his family was victimised by a local Union Parishad official and his father was seriously beaten. Following this incident, the appellant claimed, a false case was lodged against his father and other relatives in the Court of Additional Magistrate in the Munchigonj district. The appellant claimed that these incidents were reported to the police, who merely diarised them. 4 The appellant also claimed to fear harm from the Kala group, an AL activist group. The appellant claimed that in 2008 a customer, who was under the influence of the Kala group, refused to pay a large debt he owed to the appellant. The appellant claimed that when he pressured this customer to pay the debt, the Kala group threatened to kill him. The appellant said he tried to report the incident to the police but they would not take his name. However, the appellant said that police eventually made a general diary entry of his complaint. A similar incident occurred in 2009. The police also refused to accept the appellant's report of this incident but did eventually diarise the incident. 5 The appellant further claimed that in September 2009, his business premises were broken into by members of the Kala group and a large amount of money was stolen. The appellant claimed to have complained to the police, but said the police were hostile towards him and initially refused to accept his report of the incident. However, "by some means" the appellant said he was able to persuade the police to make a diary entry of the incident. 6 On 16 November 2011, a delegate of the Minister refused the appellant's protection visa application. The delegate largely accepted the appellant's claim, finding that the appellant "had been imputed with the political opinion as claimed" and that the appellant had suffered harm in incidents in Bangladesh because of this opinion and other non-Convention reasons. Further, the delegate found that the appellant did "not have access to effective state protection in Bangladesh". 7 However, the delegate found that internal relocation within Bangladesh was a "viable and reasonable option given the appellant's particular circumstances". The delegate, therefore, found that the appellant did not have a genuine fear of harm or a well-founded fear of persecution, as defined under the Convention.

the appeal 23 By notice of appeal filed on 22 May 2013, the appellant advanced the following grounds: 1. The decision of the second respondent was affected by jurisdictional error and the Federal Circuit Court failed to recognise this issue that: (i) The second respondent failed to exercise its jurisdiction in that the Tribunal did not consider an integer of my claims for complementary protection. (ii) I submitted certain reports and press releases established that the security and political situation in Bangladesh remained volatile and dangerous, that human rights violations continued despite government promises to curb it, that opposition political party members including people who work in the grass root level faced harassment from the Bangladeshi authorities and that there was impunity for human rights abusers in Bangladesh. (iii) I submitted that there was significant evidence that state authorities engaged in or condoned human rights abuses targeting opposition members, in particular against BNP members. (iv) The Tribunal limited its consideration of the applicant's claims in relation to my involvement with the Jatiotabadi Jubodal to serious harm under section 91R of the Migration Act and did not consider whether the same claims might amount to significant harm in terms of section 36(2A) of the Migration Act. Instead the Tribunal seems to have treated its findings on serious harm under section 91R as applying to significant harm under section 36(2A) as if the two concepts were the same which they are not. (v) Therefore the Tribunal limited its consideration of and findings in relation to complementary protection to the matter that I submitted I was in difficulties in business and my father's experiences as a victim of hijacking and my work injury. 24 Before this Court, the appellant raised two arguments. 25 First, the appellant, in effect, contended that the primary judge erred in failing to find that the Tribunal had fallen into jurisdictional error by not having regard as to whether his claims gave rise to complementary protection on the basis that there were substantial grounds for believing that there was a real risk that he would suffer "significant harm" if he was returned to Bangladesh. Secondly, the appellant contended that the Tribunal erred in failing to find that in Bangladesh even those who were at the lower levels of the Jatiyatabadi Jubodal suffered violence and harassment at the hands of political rivals. 26 As to the first of the appellant's contentions, in my view, the primary judge did not err. It is clear that the same incidents of violence and harassment were relied on by the appellant as the basis for his claim that he had feared that he would suffer "serious harm" if he was returned to Bangladesh, as well as for his complementary protection claim that there were substantial grounds for believing there was a real risk he would suffer "significant harm" if he was returned. The Tribunal, having on credibility grounds, rejected his claim, that he had suffered the harassment and violence in Bangladesh on account of his political associations, which he claimed, the Tribunal, thereby dispensed with both aspects of the claim made by the appellant. Therefore, as the primary judge found at [51] of the reasons for decision, set out at [21] above, the Tribunal did not fall into jurisdictional error in failing to deal specifically with those matters under the rubric of complementary protection. 27 As to the appellant's contention that the Tribunal erred in failing to find that violence and harassment in Bangladesh was directed towards ordinary members of the Jatiyatabadi Jubodal, as well as those occupying prominent positions, this is a complaint about the fact finding process of the Tribunal. Such a contention does not allege jurisdictional error on the part of the Tribunal. 28 The primary judge did not err in concluding that the decision of the Tribunal was not affected by jurisdictional error. 29 The appeal is dismissed with costs. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis.

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