BHW16 v Minister for Immigration and Border Protection

• Jurisdiction: Australia Federal only
• Court: Federal Court
• Judge: YATES J
• Judgment Date: 20 December 2019
• Neutral Citation: [2019] FCA 2168
• Date: 20 December 2019

FEDERAL COURT OF AUSTRALIA

BHW16 v Minister for Immigration and Border Protection [2019] FCA 2168

Appeal from:	BHW16 v Minister for Immigration & Anor [2019] FCCA 1172
File number:	NSD 775 of 2019
Judge:	YATES J
Date of judgment:	20 December 2019
Catchwords:	MIGRATION – appeal from judgment of Federal Circuit Court – whether the primary judge erred in finding that the Tribunal’s failure to consider evidence corroborating the appellant’s claims to fear harm was not a constructive failure to exercise jurisdiction – appeal allowed
Legislation:	Migration Act 1958 (Cth), ss 36(2)(a), 36(2)(aa)
Cases cited:	BSQ16 v Minister for Immigration and Border Protection [2018] FCA 469 DZADQ v Minister for Immigration and Border Protection [2014] FCA 754 Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; 212 FCR 99 SZJHE v Minister for Immigration and Citizenship [2008] FCA 1771 VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117
Date of hearing:	12 November 2019
Registry:	New South Wales
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	47
Counsel for the Appellant:	The appellant appeared in person, with the aid of an interpreter
Counsel for the First Respondent:	Ms KN Pham
Solicitor for the First Respondent:	Australian Government Solicitor

ORDERS

		NSD 775 of 2019
BETWEEN:	BHW16 Appellant
AND:	MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ; ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

JUDGE:	YATES J
DATE OF ORDER:	20 DECEMBER 2019

THE COURT ORDERS THAT:

1. The appeal be allowed.

2. Orders 1 and 2 of the Federal Circuit Court of Australia made on 7 May 2019 be set aside and in lieu thereof it be ordered that:

   1. the decision of the second respondent made on 6 May 2016 be set aside; and

   2. the matter be remitted to the second respondent for redetermination according to law.

3. Subject to any application in respect of costs to be made on or before 4.00 pm on 28 January 2020, the first respondent pay the appellant’s legal costs, if any, of the hearing in the Federal Circuit Court.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

YATES J:

Introduction

1. The appellant is a citizen of Bangladesh, who entered Australia on 8 April 2014 under a visitor visa. On 2 May 2014, he applied for a protection visa. On 3 December 2014, a delegate of the first respondent, the Minister for Immigration and Border Protection (the Minister), refused the application.

2. The appellant sought review of the delegate’s decision before the second respondent, the Administrative Appeals Tribunal (the Tribunal). The appellant was represented throughout the review by a migration agent. On 6 May 2016, the Tribunal affirmed the decision under review.

3. The appellant then commenced proceedings in the Federal Circuit Court of Australia (the Federal Circuit Court) seeking judicial review of the Tribunal’s decision. He appeared in person at the hearing of his application, although post-hearing submissions, prepared by counsel, were subsequently filed on his behalf. On 7 May 2019, the Federal Circuit Court dismissed the application. The appellant appeals from that judgment.

The Tribunal’s Decision

4. The appellant claimed to fear harm from fanatical Islamists in Bangladesh, in particular persons affiliated with Jamat-E-Islam, students from a particular Madrasa in Dhaka and persons affiliated with the religious cult associated with Delwar Hossain Sayedee. In this connection, he claimed that there had been a number of incidents in 2013 and 2014 in which he and/or members of his family had been threatened or attacked.

5. The Tribunal had “a number of credibility difficulties” with these claims. It discussed these concerns at [33] – [60] of its Decision Record. It is not necessary for me to summarise these concerns. It is sufficient for me to note that the Tribunal was not satisfied that the appellant “was a truthful witness in relation to key aspects of his claims”. In that regard, the Tribunal said:

62. In making this assessment the Tribunal has taken note of the country information concerning the waves of attacks that occurred against Hindus in 2013 and again in early 2014. Notwithstanding this independent information, the Tribunal remains unpersuaded with the truth of the applicant's claims that he was systematically hunted in the way that he has described over a period of 6 to 7 months.

63. The Tribunal notes that the applicant has claimed allowance should be made for the fact that his original statement was prepared with the assistance of a volunteer solicitor and that he was not represented in hearing (sic). The original statement is a very detailed and precise recording of claims. The applicant is educated. The Tribunal is not satisfied that the failure of the applicant being represented in the interview with the delegate or issues relating to the preparation of the original statement explain the cumulative impact of the inconsistencies in the applicant's evidence and the plausibility issues identified.

64. The cumulative impact of the deficiencies in the evidence are such that the Tribunal cannot be satisfied that the applicant has been threatened, attacked, followed, phoned, by anti-Hindu militants, or that his family have been phoned, threatened and have had their house ransacked by anti-Hindu militants seeking to extract information about the location of the applicant. The Tribunal is not satisfied that the applicant relocated on various occasions within Dhaka for the reasons claimed. The Tribunal is not satisfied that the applicant's family relocated on various occasions for the reasons claimed.

65. Given that the Tribunal is not satisfied that the applicant has been the target of any antiHindu groups, or individuals, or has suffered harm or threats at the hands of such groups or individuals, the Tribunal is not satisfied that there is a real chance of serious harm or a real risk of significant harm to the applicant based on previously being targeted either on the basis of his religion, membership of a particular social group as a member of a Hindu organisation, his imputed political opinion in opposition to the political views of militant Muslims, or for any other reason.

6. The appellant also claimed to fear harm because of his Hindu faith and his volunteer work with Jago Hindu, an organisation that works for the rights of Hindus and which seeks to raise awareness about Hinduism in Bangladesh. The Tribunal was prepared to accept that the appellant was of Hindu faith and that he had had some involvement in Jago Hindu as an ordinary member who did not have a leadership role. The Tribunal therefore considered the risk of harm to the appellant on that basis but, in light of the adverse credibility findings it had made, not as a person who had been subjected to prior targeting or harm based on his religion, imputed political opinion, or for any other reason.

7. In considering this aspect of his claim, the Tribunal had regard to certain country information (DFAT Country Report – Bangladesh, 20 October 2014) (the DFAT report) and to statistics provided by an NGO concerning deaths, injury and violence in Bangladesh in 2014 and 2015. The Tribunal noted that, whilst there were reports of sizeable numbers of attacks and other harm against Hindus, these matters were to be seen in the context that there were 13.5 million Hindus living in Bangladesh, constituting 8.5% of the population. The Tribunal also noted that there were no restrictions on Hindus practising their religion and that Hindus made significant contributions to Bangladeshi public life, including in politics, academia and the arts. The Tribunal further noted that no...