AAM15 v Minister for Immigration
[2015] FCCA 1225
•11 May 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AAM15 & ORS v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 1225 |
| Catchwords: MIGRATION – Refugee Review Tribunal – Protection (class XA) visa – complementary protection – whether the Tribunal had put adverse information to the applicant – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958, ss.36(2)(a), 36(2)(aa), 424A, 424AA, 425, 476 |
| SZJUB v Minister for Immigration and Citizenship [2007] FCA 1486 |
| First Applicant: | AAM15 |
| Second Applicant: | AAN15 |
| Third Applicant: | AAP15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 439 of 2015 |
| Judgment of: | Judge Street |
| Hearing date: | 11 May 2015 |
| Date of Last Submission: | 11 May 2015 |
| Delivered at: | Sydney |
| Delivered on: | 11 May 2015 |
REPRESENTATION
| The applicants appeared in person |
| Counsel for the Respondent: | Mr Kay Hoyle |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The application be dismissed.
The first and second applicants pay the first respondent’s costs fixed in the sum of $6825.
| FEDERAL CIRCUIT COURT AT SYDNEY |
SYG 439 of 2015
| AAM15 |
First Applicant
| AAN15A |
Second Applicant
| AAP15 |
Third Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 in respect of a decision of the Tribunal made on 27 January 2015 affirming a decision of the delegate not to grant the applicants a Protection (class XA) visa. It is only the review applicant that has filed claims in respect of the protection visa application. The second visa applicant is the review applicant’s wife and the third visa applicant is the review applicant’s daughter.
The grounds of the application are set out as follows:
1. The Tribunal failed to comply with s 425 of the Migration Act 1958 ("the Act") in respect of the Third Applicant.
Particulars
The Third Applicant was not given an opportunity to give evidence and present arguments relating to the issues arising in relation to the decision under review.
2. The Tribunal failed to comply with s 424A or 424AA of the Act in respect of information that it considered would be there reason or part of the reason for affirming the decision under review.
Particulars
The Tribunal took into account information that had been given by the Applicant orally to the Minister's Department in determining whether the Applicant was a truthful witness. That information was not put to the Applicant in accordance with s 424A or 424AA of the Act.
The applicant has a long migration history in Australia in relation to which, with a different date of birth, he applied for protection and was refused. The applicant came to Australia on 11 July 2013, having obtained a visa at the beginning of June using a false passport with a false date of birth. Prior to coming to Australia, the applicant had been in the UK in April of 2013, had been in India in May 2013, and had travelled to Thailand and Malaysia in 2012 and 2013. The applicant applied for a protection visa on 7 August 2013 and was interviewed by the delegate on 17 March 2014 and the delegate refused to grant a visa on 20 March 2014.
It is clear from the delegate’s decision that the delegate raised with the applicant the earlier protection visa application advanced by the applicant in 1998 and the foundation for that application which was an allegation that he was a member of the Jatiya Party. In substance, the applicant told the delegate that that was something he had said because somebody had told him to make that claim. Before the Tribunal, the following evidence was given:
Q. If you were a BNP supporter, and you were already having problems because of the BNP, and that’s why you fled Australia in 1998, why would your advisor tell you to lodge a claim that you were a supporter of the Jatiua Party?
A. WITNESS [AAM15]: At that point of time I was not sure why he wanted me to do that, he – I thought he knew what he was saying, and that there would be some benefit in that.
Q. Did you give evidence under oath that you were a supporter of the Jatiya Party to the Tribunal?
A. WITNESS [AAM15]: Yes, I did.
Q. Well, why did you do that? Why did you lie?
A. WITNESS [AAM15]: Because the case was drawn up with a lie to begin with, I did not know what else to do at that point.
In essence, the applicant admitted that he had lied to the earlier Tribunal and that his earlier application had been founded on a lie. The applicants appeared before the Tribunal on 19 November 2014 to give evidence and present arguments. The hearing was conducted with the assistance of an interpreter and the applicants were represented by a registered migration agent. Further material was provided to the Tribunal following the hearing and on 24 November 2014, the Tribunal sent a letter pursuant to s.424A of the Act inviting the applicants to respond specifically to the credibility concerns that the Tribunal identified in that letter.
A further letter was sent on 10 December 2014 in relation to which there was a question of extension of time and, on 31 December 2014, the Tribunal received material in response to the s.424A letter and further country information. The Tribunal carefully identified the applicant’s claims and evidence. The Tribunal identified a number of concerns in relation to the applicant’s evidence and credibility.
The Tribunal carefully summarised its concerns about the applicant’s credibility:
14. First, the Tribunal has significant concerns about whether the applicant has been truthful about his intention to come to Australia. The applicant stated at the hearing that he had deliberately used a different date of birth in order to obtain a visa to Australia as he knew that because he was previously refused a protection visa application he would not be issued with another visa under his own name and date of birth. The Tribunal considers that the applicant’s willingness to intentionally deceive the Australian government in order to achieve his desired immigration outcome reflects poorly on his credibility.
15. Furthermore, the Tribunal does not consider that the applicant has been truthful about his plans to come to Australia. He stated that his current passport has a false date of birth. The passport (which was produced at the hearing) was issued on 28 March 2011 and contains stamps which show that he subsequently used it to travel to the UK, Thailand, Malaysia and India. The Tribunal asked whether he intended to travel to Australia at the time that he obtained his passport but he stated that he did not. When the Tribunal queried why then he had obtained a passport with a false date of birth he then changed his evidence and stated that he was not planning on applying but it was in the back of his mind that ultimately he would like to go to Australia if he could not live in Bangladesh. The Tribunal did not find this persuasive and it appears to the Tribunal that the applicant has planned to return to Australia since at least 2011 and this was why he obtained a passport with a false date of birth and then travelled to a number of countries using that passport.
16. Second, as discussed with the applicant at the hearing, the applicant’s previous protection visa application significantly undermines his current claims. He stated at the hearing that he was a supporter of the BNP at that time but was advised by his representative not to refer to that but instead to claim that he was a member of the Jatio Party. When the Tribunal questioned why he would be advised to claim this he stated that he did not know. He stated that he had given evidence under oath to the Tribunal (differently constituted) that he was a supporter of the Jatio Party but this was not true and he had lied up until that point so he did not know what else to do. The Tribunal considers that this evidence significantly undermines the applicant’s current claims. The Tribunal cannot see any credible reason why the applicant would claim to be persecuted by the Awami League because he was a member of the Jatio Party if in fact he was being persecuted by the Awami League because he was a member of the BNP. His evidence that his previous protection visa application was lodged in 1998 on the basis of his membership to the Jatio Party suggests that he was not a supporter of the BNP at that time, contrary to his current claims that he and his family have always been supporters of the BNP and he has been involved since his childhood.
17. Furthermore, the Tribunal considers that it reflects very poorly on his credibility that he lodged a previous protection visa application on false grounds and continued to lie, including under oath at a tribunal hearing, throughout the processing of that application. Although he claims to have left Australia voluntarily in 2008 (ten years after arriving) because the caretaker government came to power, he stated that this was only after he had exhausted all avenues to remain in Australia. As discussed with the applicant at the hearing his conduct in relation to his previous protection visa application makes it difficult for the Tribunal to accept his claim that he lied previously but is now telling the truth. The Tribunal considers that it casts significant doubt on his overall credibility.
18. Third, the applicant travelled outside of Bangladesh in April 2013 to the UK for tourism and in May 2013 to India for business but on both occasions chose to return voluntarily to Bangladesh. As discussed with the applicant at the hearing the Tribunal would expect that if his son was killed in 2010, there was an attempted abduction of his daughter in 2011 and he had problems since 1998 then he would have claimed asylum in the UK. In response to this the applicant stated that he did not want to stay there by himself. The Tribunal did not find this persuasive and considers that if the applicant had been in danger as he claimed and had the difficulties he claims to have had he would not have voluntarily returned to Bangladesh in April and May 2013. The Tribunal considers that this casts significant doubt on the applicant’s claims that he had been targeted and in hiding in early 2012.
19. In addition, the applicant’s passport shows that he was issued a multiple entry visitor visa to the UK which was valid from 7 November 2012 until 7 May 2013. He visited London for one week, returning on 21 April 2013. He claims that he decided that he and his family needed to leave Bangladesh shortly after returning from London. However he only applied to come to Australia. When the Tribunal asked why he did not apply for a visa for his wife and daughter to go to the UK (given that he still had a valid visa himself) he stated that his daughter was still in school and he did not want to hamper her education. The Tribunal did not find this persuasive and considers that if the applicant was genuinely in danger then he would have sought every possible avenue to leave Bangladesh as soon as possible and would not have delayed his departure because of his daughter’s schooling, nor would he have decided to apply to go to Australia without utilising his already existing visa to the UK.
20. Fourth, the applicant claimed at the hearing that there was an attempted abduction of his daughter in approximately April 2011 and the written evidence from the daughter applicant provided to the Tribunal refers to this as well. As discussed with the applicant at the hearing there is no reference to this in the applicant’s statement of claims. Given how significant the event is the Tribunal considers that the failure to refer to it in the written claims significantly undermines the credibility of that claim. Furthermore at the Tribunal hearing the applicant stated that he had no serious problems from 2008 to 2012. When the Tribunal put to him that it would consider the attempted abduction of his daughter to be a serious problem he stated that he tried to ensure that it never happened again and things quietened down after that. The Tribunal did not find this to be persuasive.
…
22. The Tribunal did not find this response to be persuasive. The application form for the daughter applicant states that she was attending the same school from January 2009 to June 2013 in [MJ] which is not consistent with the applicant’s claim that he moved the family because his daughter was in danger. Furthermore, his response that nothing happened so they returned to normal life until the situation worsened in 2013 is not consistent with his evidence that he went in hiding and started hiring bodyguards from early 2012. The Tribunal does not find it credible that if there was such a kidnapping attempt against his daughter as he has claimed and he was living in hiding from early 2012 and forced to hire bodyguards, that he would have left his wife and daughter to continue living in the home town while he went into hiding. When the Tribunal discussed this with the applicant at the hearing he stated that he never intended to leave Bangladesh permanently because he had a good life there. The Tribunal did not find this persuasive as the applicant had previously lived from 1998 to 2008 in Australia after lodging a false protection visa application in order to obtain permanent residence in Australia, demonstrating a very clear, and strong, desire to leave Bangladesh permanently. The applicant responded that after he returned in 2008 things were better and he did not think about leaving again. The Tribunal did not find this persuasive or consistent with his statutory declaration which states that he started fearing for himself and his family after his son’s death in May 2010.
…
24. In addition, as put to the applicants in the s.424A letter, the evidence of the applicant and wife applicant was inconsistent in relation to their response to the attempted kidnapping. The applicant stated that after the attempted abduction either he or his brother-in-law would accompany the daughter applicant to school. However the wife applicant stated that either the applicant or herself would accompany the daughter applicant to school. In response to this inconsistency the applicant responded that they are close to his brother-in-law who would drive the wife applicant to pick up the daughter applicant if the applicant could not do so which is consistent with the evidence of both the applicant and wife applicant. The Tribunal is willing to accept that this explanation is plausible and therefore has drawn no adverse inference from the inconsistency. Nevertheless, on the basis of the other concerns outlined above the Tribunal is not satisfied that there was any attempted kidnapping against the daughter applicant.
25. Fifth, the applicant claims to have been threatened in Bangladesh because of his political activities. At the hearing he stated that these threats started after he returned from the UK. He stated that before this time there were no threats. He stated that he went to the UK for a holiday for one week because it was always his dream to go there and he always only planned to go for one week. However, as discussed with the applicant, this is not consistent with the statutory declaration provided to the Tribunal by the wife applicant in which she states:
The Awami League members and supporters then started threatening my daughter and the threats became serious in 2013. Due to the reason, I asked my husband to return to Bangladesh from the UK because I could not handle it. After he returned, we realised that if we continued to stay in Bangladesh, there is real danger for my daughter’s life and my husband’s life.
26. In response to this information the applicant stated that they did feel threatened at this time and his wife did ask him to come back but he would have come back anyway. The Tribunal did not find this persuasive and is not satisfied that it explains why he stated that the threats only started after he returned from the UK. The Tribunal is not satisfied that any of the applicants were threatened in Bangladesh because of the applicant’s political activities.
27. Sixth, the Tribunal did not find the applicant’s evidence in relation to his business in Bangladesh to be consistent or persuasive. He has provided significant documentary evidence to show that he owned a brickworks business in Bangladesh and the Tribunal accepts that this was the case. In his application form he states that he was living at the same address in Bangladesh from when he returned to Bangladesh in 2008 to when he left again in 2013. During that time he operated a brick company which he stated at the hearing was very successful and he employed 200 people. However, at the hearing the applicant claimed that he rarely spent time on the business and would only look after it for 2-3 hours once in a while. As put to the applicant at the hearing, the Tribunal does not find it persuasive that he was able to start a business and grow it into one that employs 200 people if he only attends for 2-3 hours every once in a while. In response to this the applicant responded that he would put in long hours in the beginning but then the situation got worse in 2012 and 2013 and his manager started running it but eventually it was forced to close shortly after he arrived in Australia (which was consistent with the evidence of the wife applicant that the brick business is now closed). However he then changed his evidence and stated that the business was not closed but was greatly reduced (although he still has 4 trucks, 10 acres and a number of employees) and that his enemies had started two fires at the premises. He stated that the first fire was within 2 weeks of him arriving in Australia when they came to the factory, beat up his manager and set a car on fire. He stated that there was no other damage done. The second incident was about 20-25 days later when they came and asked for cash but were not given it. In response they threw bricks from the field and damaged trucks.
…
29. The Tribunal is not satisfied that this report is consistent with the applicant’s claims at the hearing that in the first attack a car was set on fire but no other damage was done. As discussed with the applicant at the hearing the information available to the Tribunal indicates that forged or fraudulently obtained documents are readily available in Bangladesh1 which raises doubts in the Tribunal’s mind about the genuineness of the newspaper article. In light of the inconsistent evidence the Tribunal is not satisfied that the applicant’s business has been attacked as he has claimed.
30. Seventh, the Tribunal did not find the applicants’ evidence in relation to their residential addresses and history to be consistent or persuasive. At the hearing the applicant claimed that before coming to Australia he had been living in Dhaka for a week, with his wife and daughter joining him there 2-3 days before they left to come to Australia. He claimed that he had not been living regularly at his village but had only stayed for maybe a week at a time but otherwise would live in Dhaka, Sylhet or Chittagong. He would not stay at the same hotels but would constantly change. He stated that he had not referred to this previously because he had a lengthy history and he only listed one address in the application form because this was his permanent address. As put to him in the s.424A letter the applicant did not refer to being in hiding at the Departmental interview. In response to this the applicant claimed that the delegate had not asked him about this so he did not refer to it and that the delegate did not have an open mind during the interview. The Tribunal did not find this persuasive. Having listened to a recording of the interview the Tribunal is satisfied that the applicant was given an opportunity to put forward all relevant information to his claims and the Tribunal would have expected him to have referred to being in hiding for an extended period if this was true. His failure to refer to it casts significant doubt on his claim that it was too dangerous for him to live in his home village and that he was in hiding until he left Bangladesh.
31. Furthermore, the Tribunal found the applicant’s evidence in relation to his claim to have gone into hiding to be vague and unpersuasive. When the Tribunal asked when he first decided that he could not live permanently in his village he stated that it was after he returned from London. However when the Tribunal asked whether he had been living permanently in his village before April 2013, he then changed his evidence and stated that he lived there permanently before 2012 but since then the situation has deteriorated gradually. He stated that when he returned to his village he would hire bodyguards to protect him. He stated that he started hiring bodyguards in around February or March 2012. The Tribunal did not find this to be either consistent or persuasive and formed the impression that the applicant was fabricating his evidence in response to the Tribunal’s questions and concerns.
32. The wife applicant’s evidence at the Tribunal hearing was significantly inconsistent with the applicant’s in relation to his previous residential addresses. She stated that the night before they left Bangladesh to come to Australia she and her husband were both in [J]. As put to the applicants in the s.424A letter this suggests that the applicant was not in hiding before coming to Australia. In response to this the applicant stated:
I request the Tribunal to look into the age and the psychological condition my wife who is suffering due to the loss of the son and the fear related to our daughter. In addition, it was the first time, she was giving evidence in a place like courts. She was under stress and nervous. She misunderstood the question. She thought that the Tribunal asked her where she was living before coming to Australia. That was the reason, she said she stayed in [J] but she forgot to tell that 2-3 days before she came to Dhaka to come to Australia. It was a short stay for her in Dhaka and that was the reason she said she was staying in [J].
33. The Tribunal did not find this explanation persuasive as the wife applicant made a distinction in her evidence between when the applicant was in [J] and Dhaka. She stated that he was in [J] the night before they left but that he normally lived in Dhaka since before their son was murdered in 2010 because of his business activities and meetings there. The Tribunal is not satisfied that the inconsistency in their evidence was due to confusion on the part of the wife applicant. Rather the Tribunal considers that the applicant has fabricated his claim to have been in hiding in order to explain the lack of harm to him during the period prior to departing Bangladesh.
34. The Tribunal has carefully considered the statutory declarations provided by the applicant wife and applicant daughter in support of the protection visa applications. While the Tribunal accepts that aspects of these are consistent with the applicant’s claims and evidence, the above concerns are so numerous and significant that the supporting statutory declarations do not overcome the Tribunal’s concerns. The Tribunal is not satisfied that the applicant and wife applicant are credible witnesses or have been truthful about significant aspects of the claims made. The Tribunal is not satisfied that the applicant has been threatened or harassed by political opponents, that his business has been attacked or forced to close as a result of political harassment, that the applicant daughter was threatened, verbally abused or attacked in Bangladesh or that the applicant’s son was killed as a result of the applicant’s political activities.
35. In light of these credibility concerns the Tribunal has considered each of the applicant’s claims for protection.
It was in these circumstances that the Tribunal made adverse findings in relation to the applicant’s credit. I am clearly satisfied that those adverse findings of credit were open on material before the Tribunal and, relevantly, the Tribunal found:
43. In light of the country information referred to above which suggests that it is high profile BNP members or supporters who are actively involved that are most at risk of harm, the Tribunal’s credibility concerns, the lack of past harm for any political reason and the Tribunal’s finding that the applicant has exaggerated his political profile, the Tribunal is not satisfied there is a real chance of the applicant being harmed because of his political activities or opinions.
44. The applicant claims to have been involved with [S], a human rights organisation in Bangladesh and has provided a letter of support from [ASB] dated 22 August 2013 attesting to this. The applicant has also provided a card showing that he is a member of [MAA]. The Tribunal is willing to accept that this may be the case. However, as discussed with the applicant at the hearing, the letter from [S] does not refer to the applicant having suffered any harm as a result of his involvement with the organisation or to be in any danger of any harm as a result of this. In light of the lack of past harm and the Tribunal’s significant credibility concerns, it is not satisfied that there is any credible evidence before it to suggest that the applicant will be harmed as a result of his activities on behalf of [S]. The Tribunal is not satisfied that there is a real chance of the applicant being harmed as a result of his activities with [S].
…
48. In light of the Tribunal’s credibility concerns, the inconsistent evidence about why his son was murdered and the lack of evidence about the applicant’s son’s death the Tribunal has serious concerns about whether he was murdered in the circumstances claimed by the applicant. However, even giving the applicant the benefit of the doubt and accepting that his son worked as a journalist while in high school (as evidenced by the ID card provided) and uncovered evidence of corruption related to school exams, the Tribunal does not accept that there is a real chance of the applicant being harmed as a result of his son’s investigative journalism while in high school in 2010. The applicant has not taken any steps to investigate the death or lodged any complaints in relation to it, despite claiming to be involved in a human rights organisation that assists victims of human rights abuses in seeking justice. He continued living in [MJ] with his wife and daughter and operating a substantial business there without Ms [NK] or her family seeking to harm him or his family any further. The applicant claims that this situation may change if the Awami League is no longer in power as he would be viewed as more of a threat then but the Tribunal considers this to be purely speculative and given the amount of time that has passed since the claimed murder and the lack of action to date on the part of either the applicant or the murderer, the Tribunal is not satisfied that there is a real chance of harm to the applicant because of the claimed murder of his son in 2010.
…
50. Whether a supposed group is a ‘particular social group’ in a society will depend upon all of the evidence including relevant information regarding legal, social, cultural and religious norms in the country. In this case, no evidence has been provided that there exists such a particular social group and the Tribunal is not aware of any evidence to support such a finding. However, even if there was such a group, the Tribunal is not satisfied for the reasons given above that there is a real chance of the applicant being targeted for membership of that group.
51. Having considered his claims individually and cumulatively, for the reasons given above the Tribunal is not satisfied that that there is a real chance of the applicant being harmed for any of the reasons he has claimed. The wife applicant and daughter applicant completed Part D’s stating that they had no claims of their own but their evidence suggests that they claim to fear harm as a result of the applicant’s political activities in Bangladesh. However, for the reasons set out above the Tribunal is not satisfied that there is a real chance of the applicant being harmed as a result of his political activities. The Tribunal considers that there is even less chance of the applicant’s family being harmed as a result of his political activities. Therefore, likewise and for the reasons discussed above the Tribunal is not satisfied that there is a real chance of harm to the wife applicant or daughter applicant as a result of the applicant’s political activities or opinions, or for any other Convention related reason.
52. The Tribunal has considered whether the applicants are owed protection under the Complementary Protection criteria. However, for the reasons set out above, the Tribunal is not satisfied that there is a real chance of the applicants being harmed for the reasons claimed. In MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition. Therefore the Tribunal is not satisfied that it has substantial grounds for believing that, as a necessary and foreseeable consequence of any of the applicants being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm.
It is in those circumstances that the Tribunal found that the applicant was not a person in respect of whom Australia had a protection obligation and that the applicant had failed to satisfy the criteria under s.36(2)(a) and s.36(2)(aa).
There is no substance in relation to ground 1 as it is clear the applicant was given an opportunity to give evidence and present arguments and, in fact, was provided with a s.424A letter after the hearing before the Tribunal to which the applicants responded. It is clear that the Tribunal properly raised, in accordance with s.425 of the Migration Act, the issues of credit on which the decision to reject the claim were based, see SZJUB v Minister for Immigration and Citizenship [2007] FCA 1486 at [28].
In these circumstances, there’s no substance in relation to ground 1 and it fails to disclose any jurisdictional error. In relation to ground 2, it is clear that the Tribunal complied with requirements under s.424A.
It is clear that on 10 December 2014, at pages 283-286 of the Court Book, marked as an exhibit, the Tribunal gave clear particulars of the information that it considered would be the reason or part of a reason for affirming the decision that was under review. I am satisfied that the requirements of s.424A were complied with. Having also seen the transcript that was put into evidence by the applicant, it is clear that the Tribunal raised those issues of credibility with the applicant in accordance with s.424AA, and there is no substance in relation to the alleged second ground. Further that the applicant as an admitted liar was not a truthful witness was clearly particularised and raised with the applicant at the hearing as identified above. This is a case where the truthfulness of the applicant was squarely raised by the admitted false passport. I do not accept the oral information provided to the Department as to the applicant not being a truthful witness in this case required the step taken by the sending of the s.424A letter. I am satisfied that there was no jurisdictional error by the Tribunal. The application is dismissed.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Street
Associate:
Date: 12 May 2015
2
1
2