AKD17 v Minister for Immigration

[2017] FCCA 2890

FEDERAL CIRCUIT COURT OF AUSTRALIA

AKD17 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2890

Catchwords:
MIGRATION – Protection Visa – whether tribunal’s decision affected by jurisdictional error – where no error established in tribunal’s decision – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Applicant: AKD17

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 82 of 2017

Judgment of: Judge Vasta

Hearing date: 30 October 2017

Date of Last Submission: 30 October 2017

Delivered at: Brisbane

Delivered on: 30 October 2017

REPRESENTATION

Counsel for the Applicant: In person

Counsel for the First Respondent: Ms Wheatley

Solicitors for the First Respondent: Clayton Utz

ORDERS

1. That the Application filed 30 January 2017 be dismissed.

2. That the Applicant pay the First Respondent’s costs of and incidental to this proceeding fixed in the sum of $7,328.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 82 of 2017

AKD17

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore)

1. This is an application by AKD17 for the Court to conduct a judicial review of a decision made by the Administrative Appeals Tribunal. That decision was made on 19 January 2017.  That decision itself set aside a decision to refuse to grant the applicant a protection class XA visa and substituted a decision to refuse to grant the applicant a protection class XD visa.  This is a conversion case in that all applications for permanent protection were deemed to be applications for the temporary XD visas.

2. The Applicant is a Bangladeshi National.  He arrived in n Australia on 16 March 2013 as an unauthorised maritime arrival. 

3. He made an application on 13 August 2013 for a protection visa and was interviewed by the delegate on 30 October 2014.  On 2 February 2015, the delegate refused the application and the Applicant asked for a review of that decision. 

4. It seems that the matter went before the AAT.  The AAT affirmed the decision and the matter came to this Court.  The Minister conceded that the AAT had erred in affirming the delegate’s decision relating to a protection class XA visa because the application was taken to be and always had been an application for a temporary XD visa.

5. The matter was remitted to the Tribunal which then heard the matter again.  The Tribunal summarised the claims as this;

   a)That the Applicant feared that the Bangladeshi authorities and the ruling Awami League would target and harm him if he returned to Bangladesh because they believe him to be a member of the Islamic Chhatra Shibir, ICS, which is a student wing of the Jamaat-e-Islami, the JI, and he believes he has been placed on a blacklist. 

   b)The Applicant fears that he would be detained, harmed and even put to death if he returned.  He also claims that the ICS have refused to accept his decision that he wanted to stop working with them and he implied to the Tribunal that he could face renewed pressure from them to join and partake in their activities. 

6. Therefore, he says that he is caught between a rock and a hard place and that he is potentially at risk from both sources if he is made to return to Bangladesh.  He is also in fear that he will be targeted as a failed asylum seeker who departed illegally. 

7. The Tribunal looked at the notes from his entry interview, his visa protection application, the written statement of his claims, his documents that he had given to the Tribunal, another protection visa interview held on 30 October 2014, a post-hearing submission dated 13 November 2014, a delegate’s decision record of 2 February 2015, the application for review for decision, the prehearing submission, and the recording of the hearing before the first Tribunal. The file also contained a Ministerial intervention request dated 30 March 2016 and there was also quite a deal of country information that had been provided by the representative for the Applicant.

8. The Tribunal also listened to oral evidence given to it by the Applicant and looked at other country information, especially that from DFAT.  The Tribunal noted that the Applicant gave quite a detailed history of his political engagement. 

9. It was noted that ICS is an organisation that seeks to target students.  The Applicant told the Tribunal that he had left school around 2003 and he joined the ICS in 2011 or so which is some eight years after he had finished school and eight years after, one would think, the ICS’ prime recruiting time for the Applicant existed.

10. Notwithstanding that, he said that he helped the ICS organise meetings, protests and similar political works.  He was asked by the Tribunal if he could name ICS leaders at the union or district levels and at the local colleges.  The Tribunal noted that the Applicant deflected those questions but then gave a nickname of a person who was a leader of the ICS at college.

11. The Tribunal put to the Applicant that ICS had a well-known reputation for violence and was even more violent than similar groups. The Tribunal queried whether he had joined knowing this.  The Applicant claimed to be unaware of this reputation.

12. What the Tribunal found was that the oral evidence of the Applicant and his lack of supporting detail or corroboration and hesitant explanations caused the Tribunal to doubt the claims. 

13. It accepted, though, that he may have naively associated with the ICS and that he did so mainly for religious reasons.  It accepted that he may have attended meetings and helped them in a low-key way.  However, it was apparent to the Tribunal that the Applicant knew little about the organisation or its religious or political agenda.

14. The Applicant also talked about being injured by AL supporters who had struck him with sticks and kicked and punched him because of his attendance at ICS meetings, but the Tribunal had some doubt about that incident occurring as well. 

15. The Applicant had told the Tribunal that he had tried to disassociate himself from ICS and JI but those two groups had not wanted him to leave them and refused to, in effect, accept his resignation.  This, the Tribunal noted, flew in the face of what the Applicant had previously told them; that there was no formal membership, that he did not have a membership card and that he did not sign any documents or anything of that nature. 

16. Yet, the Applicant could not answer, if there was nothing that actually formally bound him to the group, why it was that he could not simply just leave or not have anything more to do with them.

17. The Applicant talked about the violence that occurred that caused the AL to pursue him in 2012 which seems strange, the Tribunal noted, considering that he said that he had scaled back his activities with the ICS a year later.  The Tribunal also did not seem to take much comfort from the fact that, if this was happening, it was not until early 2013 that the Applicant decided that he would go living “on the run”. 

18. The Tribunal summarised their findings, saying that they accepted that the Applicant formed links with the ICS and JI in early 2011, triggered mainly by their promotion of Islam.  The Tribunal accepted that he had contacts with ICS people through the mosque and social circles, that he attended some religious, political and social events and that he assisted them occasionally. 

19. The Tribunal accepted that the Applicant witnessed, or was involved in, a clash between ICS and AL at some point and that he may have suffered some injury because of that.  The Tribunal accepted that he became disenchanted with ICS and from about mid 2011 had little contact thereafter. 

20. The Tribunal did not accept that the Applicant was ever a “member” of the ICS or that he recruited or promoted the party or that ICS or JI people put pressure on him to continue as a member.

21. The Tribunal accepted that the AL may have harassed or put some pressure on him at some point in the past, but did not accept that they targeted him from 2012 in an increasingly threatening manner.  The Tribunal did not accept that the AL or the Bangladeshi authorities perceived the Applicant to be an ICS or JI sympathiser or member.

22. The Tribunal did not accept that the Applicant left Bangladesh in response to actual or perceived threats from them during 2012.  The Tribunal did not accept that the Applicant is on any government or other blacklist. 

23. The Tribunal noted the Applicant has no ongoing political interests or contacts and the Tribunal was not satisfied that the Bangladeshi authorities or any political party have an adverse view of him for political or similar reasons. 

24. The Tribunal also looked at what would happen to the Applicant as a failed asylum seeker and looked at the country information, including statements from the Prime Minister which would indicate that the Prime Minister had a view that illegal immigrants were mentally sick and called for punishment on them. 

25. There was a DFAT advice in July 2016 that spoke of Bangladeshi acceptance of voluntary and involuntary returnees and what had happened to them.  The Tribunal concluded that there would not be any serious harm for reason of his being a returnee or an illegal immigrant who was returned as a failed asylum seeker. 

26. Making those conclusions, it is very easy to see why the Tribunal came to the decision that it did. 

27. The Applicant’s grounds for this application are as follows:

    “(1) The Applicant is a citizen of Bangladesh.

    (2) The Applicant claimed that Australia owed protection obligations in respect of him.

    (3) That the decision of the second respondent, the AAT, was affected by legal error.

    (4) Relevant information was not considered.”

28. When the Applicant appeared before me on 7 August this year, I had told him that those grounds did not really amount to much and explained to him the role of this Court.  I asked him for submissions.  He did provide lengthy submissions which went through all of the parts of the decision with which he did not agree, or that he wanted to clarify.

29. He wanted to clarify why it was that he joined ICS at a later stage than usual acknowledging that the recruiting target was students.  That explanation seems to be along the same lines as the explanation that he gave to the Tribunal. 

30. When looking at the part where the Tribunal had talked about the fact that he did not identify any leaders or deflected questions as to who the persons who he could name as union or district level leaders, he has said in his written submissions:

    “I believe in any culture or society, there is need for discretion, a loyalty to maintain friendship and trust.  For this reason, when questioned to name people, I feel not comfortable.  It seems that this information is suggesting a form of negligence and disloyalty.  I am not comfortable to name people without their permission.  Also their names are not valid in my case, only suggesting that I am willing to talk about other people.  I am not comfortable with this suggestion.”

31. That does not seem to answer at all the point that the Tribunal was making; that is, that there did not seem to be any true knowledge of the structure of ICS. 

32. The Applicant, in his submissions, talks about the fact that the Tribunal had talked about ICS having a more violent reputation.  He said that he was not aware of such a reputation at all, and that he was determined to lead a peaceful and happy life.  Again, such an explanation really adds nothing.  He wanted, as well, to clarify other aspects that are conclusions that the Tribunal had come to.

33. He said that he regretted that he was involved with the ICS and it had caused his life to change dramatically.  He said that whilst there is no documented proof of these events, there was never any need for such evidence.  He had a trust between himself and others in the village. 

34. Again, none of that adds anything to what the Tribunal had said.  When the contradiction about his supposed attempt to resign was pointed out, he said that he understood that there was a contradiction of terms in this, but he tried to explain in this way:

    “Membership of such a group is by what is termed an agreement.  Perhaps by Australian terms that I now understand, this would be a gentleman’s agreement.  It was a handshake based on a trust.  This is particularly painful to me as such an agreement has a degree of honest commitment.  However, the ethics and behaviour of the ICS disappointed me and I felt compelled to express my disillusion and desire to resign.  My request was met with refusal and animosity.  This was in many ways the beginning of my fears.  I realised I had made a bad decision and my future was in potential jeopardy.”

35. Again, that’s a different explanation to what had been provided to the Tribunal, but, notwithstanding that, it still does not take away from what the Tribunal has said.  The Applicant tried to clarify again what he was saying about being in fear, but that was just simply a recitation of what he had earlier said, as are most of the rest of his submissions. 

36. His real complaint is that the Tribunal did not believe him but he submits to this Court that he is an honest man and he wishes the Court to trust him.

37. He approached this hearing as if it were a review of the decision itself, rather than a judicial review trying to determine a jurisdictional error.  This mistake by the Applicant is understandable, given that these sorts of differences really are lawyers’ differences and laypersons, especially those for whom English is not their first language, would have great difficulty understanding the difference. 

38. The problem here for the Applicant is that he is really seeking a merits review. He has no grounds upon which to find an error by the Tribunal.

39. The Applicant has fixated on conclusions that have been made by the Tribunal, has put together other evidence and now says that the Tribunal should have believed him.  He has consistently asked this Court to simply just review his matter, to give him another turn and that he thinks that this time a Tribunal would definitely believe him, if I were to give him “another go”. 

40. That is not what I am here to do. My job is to decide whether or not there has been a jurisdictional error established.  In this case, there has simply been no jurisdictional error.

41. When I asked the Applicant for any submissions in reply, he spoke in English about the problem that he had with interpretation, and that a lot of the things that he was trying to say were not interpreted properly. 

42. This seemed to me to be a matter that had not been raised before and it certainly has not been particularised at all.  The explanations or clarifications that the Applicant has given in his written submission again don’t detract from the conclusions made by the Tribunal.

43. There was still vagueness on the part of the Applicant but that was probably attributable to his not really understanding the purpose of the hearing.

44. Notwithstanding that there has to be certain liberties given by the Tribunal because of the fact that we are dealing with a person who does not have English as their first language, and who is making an application for protection, the overall evidence given to the Tribunal was such that the Tribunal was of the view that they could not accept the evidence of the Applicant. 

45. Whether I would do so or not, is not the question.  The fact is that the Tribunal has said what it is that it has concluded and such a view was indeed open on the evidence before it.

46. For those reasons, I cannot find that there is any jurisdictional error. 

47. I will now address the Applicant formally. I have gone through the decision of the Tribunal. I have looked at all of the things that you have said today and especially what you have said in your written submissions.  Whilst you may be able to be upset that the Tribunal did not believe you, that conclusion was a conclusion that was open to the Tribunal. If the conclusion was open to the Tribunal, then there is no jurisdictional error. 

48. Therefore, if there is no jurisdictional error, then I must dismiss this application.

49. I dismiss the application with costs on the scale of the Federal Circuit Court fixed at $7328.

I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date: 6 December 2017