AHV15 v Minister for Immigration

[2015] FCCA 1313

FEDERAL CIRCUIT COURT OF AUSTRALIA

AHV15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1313

Catchwords:
MIGRATION – Refugee Review Tribunal – Protection (class XA) visa – whether the Tribunal put adverse information to the applicant – no jurisdictional error – application dismissed.

Legislation: 

Migration Act 1958 ss.424A, 424AA, 476

Applicant: AHV15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 850 of 2015

Judgment of: Judge Street

Hearing date: 15 May 2015

Date of Last Submission: 15 May 2015

Delivered at: Sydney

Delivered on: 15 May 2015

REPRESENTATION

The applicant appeared in person

Solicitors for the Respondents: Mr K. Eskerie
Sparke Helmore

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the sum of $5800.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 850 of 2015

AHV15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is 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 on 27 February 2015 affirming a decision of the delegate not to grant the applicant a Protection (Class XA) visa.

2. The application identifies four grounds:

   1. The Tribunal failed to exercise its jurisdiction by failing to consider all aspects of my claims.

   Particulars

   I also mentioned in the Tribunal hearing my involvement with Bangladesh Nationalist Party branch in Australia. Though the Tribunal acknowledged that I provided a documentary evidence confirming my involvement with the BNP-Australia branch, it failed to assess my claim under the complementary protection whether my involvement supporting the BNP in Australia against the current Awami League government's human rights abuses would cause significant harm if I returned to Bangladesh.

   2. The Tribunal acted unreasonably in refusing to grant extension to provide further information.

   Particulars

   The Applicant's representatives requested an extension on my instruction before the Tribunal decided to refuse my application an extension to provide further evidence citing a justifiable reason for seeking an extension. I requested the extension to allow time to provide a document in Bengalis with a translation from a NAA TI translator. The Tribunal unreasonably refused the request.

   3. The Tribunal failed to provide adverse information to me to respond under s424(AA) in writing. The Tribunal in paragraph 89 raised concerns on the documents I submitted to the Tribunal. The Tribunal failed to provide sufficient information about these adverse information and failed to follow the correct procedure under s424(aa) to provide such adverse information to me to respond.

   4. The Tribunal failed to consider my claim on the basis of my political opinion against the Awami League Party as an independent claim.

   Particulars

   Though, the Tribunal discussed my claim on the basis of my political opinion supporting the BNP, the Tribunal failed to consider my claim under the political opinion against the current government, the Awami League Party.

3. I accept the first respondent’s submissions in relation to ground 1 that it is clear from the Tribunal’s decision at paras.89 and 92, the Tribunal properly had regard to the claims advanced.  I accept the first respondent’s submission that there is no claim of fear advanced because of activities in Australia.  There is no substance in relation to ground 1 of the application. 

4. In relation to ground 2, it is clear that the Tribunal held a hearing at which the applicant attended to give evidence and was assisted by an interpreter and his registered migration agent on 18 November 2014.  It is clear that there was a further hearing by the Tribunal on 12 February 2015, which the Tribunal summarised in relation to the applicant’s claims and evidence. 

5. It is also the case that there were post-hearing submissions that were due on 26 February 2015 and that on 27 February 2015, a request was made for an extension of time, which request was denied.  In fact, further documents were provided shortly after that request was denied, and were taken into account by the Tribunal. 

6. The Tribunal declined to grant a further extension, having identified the ample opportunity that had been given to the applicant to present his case and the extremely lenient terms in which his evidence had been provided, following expiry of deadlines. 

7. I am satisfied it was consistent with the Tribunal’s statutory duty to decide to proceed to determine the review, having given the applicant a genuine hearing. It is not the case that the Tribunal must continue to postpone the determination of the review when an adequate opportunity has been given to present the applicant’s evidence and claims.  There is no substance in relation to the ground 2 in the application.

8. In relation to ground 3, the concerns raised by the Tribunal as to the documents produced by the applicant are not matters of a kind that give rise to a breach of s.424AA. Further, I accept the first respondent’s submission that the information referred to in paragraph 89 falls into two categories of country information and the Tribunal’s own appraisal, neither of which give rise to any obligation under s.424A or 424AA. Accordingly, there is no substance in relation to ground 3 and it fails to disclose any jurisdictional error.

9. In relation to ground 4, it is clear from the Tribunal’s reasons, particularly at paras.97 and 90, that the Tribunal properly considered the applicant’s claims, and there is no substance in relation to ground 4.  The application fails to disclose any jurisdictional error.

10. The applicant provided submissions that sought to identify a history of communication by the applicant with his legal advisors in relation to the late lodgement of material.  That submission does not identify anything that constitutes a jurisdictional error, quite apart from the deficiency of any evidence to support the same.  There is no jurisdictional error disclosed by the matters identified in the applicant’s submissions.

11. This is a case in which the applicant was found to be a citizen of Bangladesh and his claims were assessed against that country.  The applicant applied for a protection visa approximately 12 days after having arrived in Australia from a lawful visa from Bangladesh.  The delegate refused to grand a visa on 4 September 2013.  The Tribunal noted that the applicant was represented by a migration agent.  The Tribunal carefully set out the statutory obligations and had regard to the ministerial direction and identified the applicant’s claims and evidence. 

12. Material in that regard, the Tribunal identified the travel history of the applicant as follows:

    11.    His second and current passport was issued on 7 June 2010, which he used to travel for recreation to Malaysia, Singapore, Indonesia and Thailand in 2010 and to India in July 2012.

13. The Tribunal identified the information provided at the departmental interview and the delegate’s decision.  The Tribunal identified the claims and evidence advanced by the applicant at the first hearing and at the second hearing.  Relevant in this regard is that the applicant worked up until 2012 and said that he delayed his leaving as the company he was working for started a visa process for him to obtain a visa to come to Australia. 

14. The Tribunal set out the circumstances relating to the post-hearing submissions that identified the country information and took that information into account.  The Tribunal noted that the applicant had delayed lodging his protection visa.  Relevantly, the Tribunal found:

    73.    The applicant delayed lodging his protection visa application.  He testified that his intentions were when he arrived in Australia were that he would stay here.  He was going to achieve that outcome and he knew that persons who had been in the Ershad regime had been granted protection in Australia.  He did not think to apply for protection at Tullamarine.  It was his intention to seek protection but he did not know how.  He had a valid visa for two weeks from 13 to 27 January and lodged his protection visa application on 25 January.  He did not do so sooner because he stayed in Melbourne for a couple of days and then came to Sydney and made his way to Lakemba where many Bangladeshis live.  He got acquainted with a “brother” whom he did not know in Bangladesh at a Lakemba market and learned of the protection visa application procedure.  The Tribunal considered the applicant’s evidence but finds that his delay in lodging a protection visa application is not consistent with a subjective fear of persecution.  Further it undermines his credibility in relation to claiming to fear serious harm in Bangladesh given that he claims to fear for his life there and has a family, with him, he would be expected to seek the protection of Australia at the first opportunity.

    74.    The applicant kept returning to Bangladesh from his trips overseas because his problems started after he returned from India in 2012.  Once he got to Australia he took the opportunity to stay here and did not go back.  He was in India for Eid and went there to shop, because he had friends there but returned despite facing threats in Bangladesh.  The Tribunal finds this further undermines his credibility and is inconsistent with a subjective fear of serious harm in Bangladesh.

    …

    83.    The Tribunal considered the applicant’s evidence relating to his motivation for joining the BNP.  His evidence in relation to his being attracted to the BNP was at best superficial.  The Tribunal does not accept this explanation.  His evidence was devoid of specific detailed policies which the BNP espoused that attracted him and that it advocated over many years, and his evidence was superficial at best in relation to the BNP and its goals philosophy, principles, and policies and lacked any supporting detail which an executive member of a political party would be able to relate after years of claimed political involvement, although he recalled who won various elections, something even casual observers of Bangladeshi politics could relate.    He did not relate any specific policies which attracted him.  The Tribunal considered the applicant’s evidence as to his motivation for joining and becoming active with the BNP.  At his second hearing, he attempted to elevate his profile despite being unaware of the policies espoused by the BNP in the 2008 campaign, claiming he in effect ran the campaign in his local constituency, despite not having mentioned this in his statutory declaration. 

    84.    The Tribunal considered the applicant’s evidence.  He had limited knowledge of when general elections took place.  In relation to his motivation and BNP policy and his own activities as a BNP leader, his evidence was vague and unpersuasive.  The Tribunal finds that the applicant’s evidence as to his motivation in joining the BNP, becoming an active office holder and holding executive positions in the party is not credible.  The Tribunal does not accept that the applicant would have been an office holder in the BNP at any level and finds that he has no affiliation with the BNP.  Given that the applicant’s evidence is that he only fears return to Bangladesh for reasons of his affiliation with the BNP the Tribunal finds that the applicant is not a person in respect of whom Australia owes protection obligations.

    85. The applicant’s evidence in relation to the most serious incident of harm faced by him ostensibly for reasons of his political activity was also not credible.  He in large part recited his protection visa application statement and his account lacked supporting corroborative detail and presented as if it were memorised rather than an account of a series of incidents that he actually experienced.  The Tribunal does not accept the applicant’s claims to have faced harm at the hands of the AL or any other potential agents of harm to be credible.

    86. At the second hearing the applicant attempted to further enhance his claimed BNP profile, by claiming his role as virtually running his local MP’s campaign in the 2008 election despite not being able to articulate the issues or policy platform of his party during that campaign, and not having mentioned this claim in his statutory declaration.  The Tribunal does not accept the applicant’s claimed affiliation with the BNP.

    87. At the second hearing, the applicant presented with new claims not previously advanced, seriously and further undermining his credibility.  He presented as if he would be prepared to do or say anything in order to achieve his desired migration outcome.

    88. The Tribunal finds that the applicant’s credibility is so seriously undermined that there is no credible or trustworthy evidence before it upon which to make a finding that the applicant is a Convention refugee or that he is a person in respect of whom Australia owes protection obligations. 

    89. Having found the applicant not to be affiliated with the BNP or a BNP office holder, and noting country information on the prevalence of fraudulent documents from Bangladesh, the Tribunal gives the letter from the BNP in support of the applicant no weight.  It notes that the letter purportedly from the Bangladesh Jatiatabadi Jubadal in Sonaimuri thana indicates that the applicant was the “Joint Secretary” rather than Joint General Secretary as he claimed at hearing.  It indicates that “(But leaders-workers of Awami League took no accept that goodly.  Next day they attacked physically on others leaders-workers including M.A.Kashem. M.A. Kashem admitted into hospital for treatment becoming wounded. After some good health he went to Dhaka and on getting opportunity he was compllled to demand political shelter.  On the basis as his colleague and well-wisher I hope his safe life.”.   The letter is replete with factual, grammar and spelling errors.  The letter purportedly from the Office of the Opposition Chief Whip has no reference number, is undated and also contains errors.  The letter from MP Bulu likewise contains grammatical and other errors.  The discharge certificate describes the applicant’s treatment as “Cognative treatment given” and goes on to indicate he had wounds stitched and is attached to a covering letter.  He further provided a letter from the BNP in Australia.  The Tribunal gives none of these documents any weight given its finding the applicant is not affiliated with the BNP, the prevalence of fraudulent documents from Bangladesh, and the numerous errors contained in the documents.   

    90. The Tribunal does not accept that the applicant is credible in relation to his claimed affiliation, role and profile in the BNP, that he faced harassment and or serious harm at the hands of the Awami League or the authorities in Bangladesh or that he is of adverse interest to any potential agents of harm for a Convention reason in Bangladesh. It has also considered whether there is a real chance that the applicant would face persecution for a Convention reason in Bangladesh for reasons of the general security situation, but finds that there is insufficient evidence before it to make such a finding before it.  It considered the documents provided by the applicant’s representative after the expiry of the deadline for submissions, but given its finding that the applicant is not credible in relation to his claimed affiliation with the BNP or its affiliated organisations, and that he is not of adverse interest to any potential agents of harm in Bangladesh for reasons of political opinion finds that there is no real chance the applicant would face persecution in Bangladesh for reasons of political opinion.

    91. The Tribunal finds that the applicant does not have a well-founded fear of persecution in Bangladesh for any Convention reason.

    92. The Tribunal has also considered whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Bangladesh, there is a real risk that he will suffer significant harm as defined in subsection 36(2A) of the Act. The Tribunal has had regard to the evidence and claims put forward by the applicant.  Given that the applicant is not credible in relation to his claims regarding his claimed BNP affiliation, nor the claims relating to harm faced by him for this reason, it finds that there are not substantial grounds for believing that there is a real risk he would face significant harm in the Bangladesh under Australia’s protection obligations under s.36(2)(aa).  The Tribunal does not accept that there are substantial grounds for believing that there is a real risk the applicant will be arbitrarily deprived of his life, or the death penalty will be carried out on him, or that he will be subjected to torture or to cruel or inhuman treatment or to degrading treatment or punishment in Bangladesh.  On the evidence before it the Tribunal does not accept that there is a real risk the applicant will suffer significant harm in Bangladesh. The Tribunal is not satisfied on the evidence, that a real risk of significant harm exists for the applicant. The Tribunal does not accept that the applicant is a person in respect of whom Australia has protection obligations under paragraph 36(2)(aa) of the Act.

15. This Court is not sitting as a Court of Appeal and it is not open to this Court to revisit the findings of fact made by the Tribunal.  I am satisfied that the adverse findings made by the Tribunal were open on the material before the Tribunal, and I am satisfied that the application fails to disclose any jurisdictional error.  The application is dismissed.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  19 May 2015