AKF16 v Minister for Immigration

[2017] FCCA 1105

FEDERAL CIRCUIT COURT OF AUSTRALIA

AKF16  v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1105

Catchwords:
MIGRATION – Application for judicial review of decision of Administrative Appeals Tribunal (Tribunal) affirming decision not to grant Protection visa – whether Tribunal considered applicant’s evidence and claims – whether Tribunal ought to have considered political situation in applicant’s country of nationality when assessing claim for Protection visa – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.36(1)(2), 36(2)(aa)

Applicant: AKF16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 395 of 2016

Judgment of: Judge Manousaridis

Hearing date: 5 May 2017

Date of Last Submission: 5 May 2017

Delivered at: Sydney

Delivered on: 26 May 2017

REPRESENTATION

Applicant appeared in person assisted by an interpreter

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

1. The application is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 395 of 2016

AKF16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant, who is a citizen of Bangladesh, seeks judicial review of a decision of the second respondent (Tribunal) affirming a decision of a delegate of the first respondent (Minister) not to grant the applicant a Protection (Class XA) visa (Protection visa).

Claims for Protection

1. The applicant, who arrived in Australia in December 2012 as an irregular maritime arrival, articulated his claims for protection on five occasions. These were at his irregular maritime arrival interview held on 29 January 2013, [1] in a statutory declaration made on 18 June 2013 which accompanied his application for a Protection visa,[2] in a letter dated 28 August 2014 from the applicant’s representative to the delegate,[3] at the applicant’s interview with the delegate,[4] and at the hearing before the Tribunal on 20 July 2015.[5] It would be most convenient to set out the claims the applicant made in his statutory declaration, which are as follows.[6]

   [1] CB1-16

   [2] CB86-92

   [3] CB125-129

   [4] CB18-129; CB159-161, [9]-[16]

   [5] CB162-167, [21]-[20]

   [6] CB86-92

   a)The applicant was born in K village in 1988. His father worked in Malaysia from 1996 to 2010, but “nowadays” the applicant’s father owns two houses. The applicant’s father buys rice and lentils and sells these in the market. The applicant and his father “had a business together”.

   b)In 2005, while attending college, the applicant joined the Chhatra Dal, the student wing of the Bangladesh National Party (BNP). The applicant had been observing BNP policies since 2001, and was impressed by the party’s work in improving education, and their later role as caretaker government from 2005 to 2008. The applicant organised meetings on the instructions of his supervisors. Meetings were held once a week for party members, and larger scale meetings attended by people from different villages were held once a fortnight or once a month.

   c)In late 2006 or early 2007 a bombing occurred at one of the meetings. Two people died, and others were hospitalised. While the media reported that no one had claimed responsibility for the attack, “our” BNP leader “told us” the Awami League was responsible. The applicant wanted to report this to the police, but the leader “told us” not to because at that time there was a ban on political meetings.

   d)The applicant returned to his village after the attack. A few days later the applicant was involved in a dispute at the market. The dispute was between one of the applicant’s friends and an Awami League supporter. The applicant intervened and was beaten by members of the Awami League. The applicant reported the incident to the BNP leader who assured the applicant he would “take care of the situation”.

   e)Later, a meeting was organised in the applicant’s village which was disrupted by members of the Awami League who arrived carrying sticks. Scared for his safety, the applicant ran away because the Awami League had the support of the police in the area.

   f)The applicant’s mother had a chat with the applicant’s father about the suffering of the applicant’s education, and that his life was being disrupted because of the applicant’s political activities. As a result, the applicant’s parents decided the applicant should go to Malaysia. In July 2007 the applicant left Bangladesh using a false passport, and travelled to Malaysia.

   g)The applicant lived in Malaysia illegally, and was worried about being caught. On one occasion he was caught and detained for 7 days. The applicant grew tired of living in Malaysia and wanted to go back to Bangladesh. The applicant’s mother warned the applicant not to do so because it was “too dangerous”. In 2010 the applicant returned to Bangladesh.

   h)In 2010 the applicant started a business with his father (who returned to Bangladesh a few months after the applicant returned) buying and selling jute. Although the applicant decided not to become involved in politics anymore, the applicant “started to get problems anyway”.

   i)The applicant approached Mr H, the president of a branch of the BNP Student League, and told Mr H he wanted to lead a normal life and did not wish to re-join the BNP. Mr H told the applicant that he might face trouble from the Awami League as he was known to them from his previous role, and that, if in the future there was a clash between the Awami League and the BNP, the applicant might be beaten up as he would have no one to protect him. 

   j)After leaving Mr H’s office, the applicant called in to see Mr M, the chairman of the Awami League, and apologised to him. Mr M told the applicant that he has done many things to Awami League people. The applicant apologised for his involvement in past altercations. He told Mr M he will be “clean”, and will “not re-join the party”. Mr M forgave the applicant.

   k)After starting the jute business, the applicant was robbed twice on the way to the market. The applicant thinks that Awami League members were involved.

   l)In June 2010 the applicant was beaten at the markets. After speaking with a friend about the attack, the applicant believes current BNP members were involved as they were angry that the applicant did not re-join. Two days after the attack, while he was deciding whether to report the incident to the police, the same attackers found the applicant’s “stall”. The applicant managed to escape after “closing the shutters to the shop”, but the attackers “damaged the outside of the shop” and the small room at the front of the shop by breaking the window.[7]

   m)The applicant and his father decided to construct a building in the market. The applicant’s father believed the land to be his as he had been using it for 30 years. The applicant’s paternal uncle, Mr R, however, believed it belonged to the applicant’s grandfather. Mr R wanted the applicant and his father not to build on the land, because he believed it was to be shared between all the applicant’s paternal uncles. The applicant and his father took the matter to court, which decided that the applicant and his father could only build on part of the land and the land had to be apportioned between the applicant’s father and paternal uncles.

   n)Mr R decided to sell the land to a rich businessman, Mr B. Both Mr R and Mr B were supporters of the Awami League. On the day that the settlement of the sale of the land was to take place, the applicant, his father and his paternal uncle, Mr L, went to the location and tried to stop the transaction. The applicant told the people involved in the sale of the property that the “property has a problem and you can’t have it”, but he was unsuccessful. A fight broke out between the applicant, his father and Mr L, and the people involved. The applicant and his father were injured, and Mr L had both his legs broken and is now in a wheelchair.[8] The applicant reported the incident to the police, who arrested those involved. The applicant and his father then went to the courts, and as at the date of the applicant’s statutory declaration, the matter remained ongoing. The applicant’s father received threats from Mr B’s men, who said they would kill the applicant’s family if he did not withdraw from the case.

   o)Because of the threats, the applicant’s father suggested the applicant leave Bangladesh. After the applicant departed Bangladesh, Mr R and Mr B continued to threaten the applicant’s father not to continue with the case.

   [7] CB90, [27]

   [8] CB90-1

Tribunal’s decision

1. The Tribunal did not accept the applicant’s account of the problems he experienced in Bangladesh to be truthful, and found the applicant had fabricated his claims to support a favourable migration outcome. The Tribunal found the applicant gave “vague and formulaic” answers to the Tribunal’s questions relating to his claimed problems in Bangladesh.[9]

   [9] CB167, [41]

2. The Tribunal referred to the applicant’s evidence about his involvement in the Chhatra Dal. It found the applicant’s involvement was at a low level for a brief period, where he did “little more than passing on information and trying to recruit people”.

3. The Tribunal found the applicant’s evidence about his reasons for leaving Bangladesh to be inconsistent. The Tribunal referred to the following matters:

   a)The Tribunal was unable to find any record or report of the bombing of the BNP meeting in late 2006 or early 2007 in which two people were killed. The Tribunal considered that had the incident occurred as the applicant claimed, it would have been reported, and noted the applicant did not produce any evidence to corroborate his claims.[10]

   b)In his application for protection, and at the interview before the delegate, the applicant claimed that, after the bombing, he was involved in a fight with members of the Awami League in his village and that a BNP meeting in his village in December 2006 had been attacked by members of the Awami League. Before the Tribunal, however, the applicant claimed he had instructions from their president not to stay in the village because at any time any sort of issue might turn up and it may be dangerous. Despite the Tribunal asking the applicant why it had been dangerous in his village, why he was unable to stay in his village, and if anything had happened after he returned to his village, the applicant neither referred to the fight with members of the Awami League or the incident at the BNP meeting in December 2006.[11]

   c)There was a delay in the applicant leaving Bangladesh. The Tribunal put to the applicant that, on his own evidence, he remained in college for one to two months in Year 12, yet the applicant appears to have remained in Bangladesh for almost one year after abandoning his studies before going to Malaysia in 2007. [12]

   [10] CB167, [42]

   [11] CB167, [42]

   [12] CB168, [43]

4. The Tribunal, therefore, did not accept the applicant left Bangladesh because of his involvement with the Chhatra Dal. The Tribunal found the applicant went to Malaysia to work as his father had done. The Tribunal accepted the applicant did not, when he returned to Bangladesh, resume his involvement with the Chhatra Dal or the BNP, but it did not accept that was because he feared persecution. The Tribunal also did not accept the applicant had any significant ideological commitment to the BNP.[13]

   [13] CB168, [43]

5. The Tribunal did not accept the applicant’s claims that he was robbed on his way to the market by members of the Awami League. Before the Tribunal the applicant said his father had supported the Awami League, although he was not an active member of that party;[14] that it was the father who had been running the business of buying and selling jute; and that the applicant was only assisting his father.[15] In those circumstances, the Tribunal found it difficult to accept that members of Awami League would have robbed the applicant because the money would have belonged to the applicant’s father.[16]

   [14] CB164, [28]

   [15] CB164, [27]

   [16] CB168, [44]

6. For similar reasons, the Tribunal found it difficult to accept the applicant’s father’s shop would have been ransacked.[17] The Tribunal found the applicant gave inconsistent evidence about when the shop was ransacked: at the hearing before the Tribunal the applicant said the incident occurred in October 2012, whereas in his statutory declaration and before the delegate he said it occurred in 2010.[18] The Tribunal also noted the applicant had previously claimed the shop had been ransacked by the BNP, whereas before the Tribunal he claimed the shop had been ransacked by the Awami League.[19]

   [17] CB168, [45]

   [18] CB168-169, [45]

   [19] CB168, [45]

7. The Tribunal did not accept the applicant’s evidence about the reasons he left Bangladesh. The Tribunal referred to the applicant’s having given inconsistent evidence. Before the Tribunal, the applicant said he left because the Awami League was trying to get back at him. In his statutory declaration, however, the applicant said he left because of the threats made by Mr B’s men. The Tribunal noted that when the inconsistency was put to the applicant, he was given a break to consult his representative, after which the applicant claimed that if he returned to Bangladesh his uncle and Mr B might think the applicant would have returned to claim his share in the disputed land.[20] Later in the hearing, the applicant claimed another reason he left Bangladesh was related to the fields his family had.[21]

   [20] CB169, [47]

   [21] CB169, [48]

8. The Tribunal, therefore, did not accept:[22]

   a)the applicant left Bangladesh in October 2012 on a false passport;

   b)there is a real chance that, if he returns to Bangladesh now or in the reasonably foreseeable future, he will be persecuted by people from the Awami League or the BNP because of his real or imputed political opinion based on his brief and low level involvement in Chhatra Dal in the past, or that there is a real chance he will resume  his involvement in politics;

   c)there is a real chance the applicant will be persecuted because of his membership of a particular social group constituted by his family as a result of the land dispute;

   d)there is a real chance the applicant will be persecuted for any reason if he returns to Bangladesh;

   e)any question of the discriminatory withholding of state protection arises on the facts of this case;

   f)the applicant’s family have low social status in Bangladesh; and

   g)the applicant “has a well-founded fear of being persecuted for one or more of the five Convention reason if he returns to Bangladesh now or in the reasonably foreseeable future”.

   [22] CB170-171, [50]

9. Based on the findings it had made when considering the applicant’s claims under s.36(2)(aa) of the Migration Act 1958 (Cth) (Act), the Tribunal was also not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Bangladesh, the applicant will resume his involvement in politics and will suffer significant harm as a result; or there is a real risk he will suffer significant harm because of the land dispute  between the applicant’s father and his uncle and Mr B.[23]

   [23] CB171, [52]

Grounds of application

1. The application for review contains the following grounds of review (errors in original).

   [1] The AAT made a jurisdictional error when it discarded all of the oral and written submission and Statutory Declaration without giving any solid evidence of cumulative credibility concern in the finding of reasons.

   Particulars: In the decision the AAT found there are inconsistency between [what] he told at the time of hearing and statutory Declaration and Representative’s submission about his political involvement with the Chatrra Dal and reasons for leaving Bangladesh.

   [2] Applicant claims that the AAT misunderstood, [misconstrued] and mistook the facts.

   [3] The applicant responded to designed [sic] in a situation of nervousness and distress. At the Hearing he was a [truthful] witness and presented oral evidence in a simple way.

   At Col.41. The AAT raised difficulty in understanding the oral evidence of the Applicant. “As I put to [the applicant] I have difficulty in accepting that he is telling the truth about the problems he had in Bangladesh. Although as I put to him, I was simply asking . . . him simple and straightforward questions which I thought he should be able to answer, he advanced excuses, saying that because these incidents happened a long time ago it was not really fair to have regards to the facts that he said something different at the hearing from what he had previously said. However, as I put to him, I do not accept that most of these incidents happened a long time ago.”

   Applicant claims that he was denied procedural fairness and natural justice when all of the oral evidence were discarded as AAT believed it vague and inconsistent.

   [4] The AAT failed to apply the correct test in relation to Complementary Protection provision contained in section 36(2)(aa) of the Migration Act.

   It did not follow Rules of Real Risk in assessing grounds presented by the applicant for believing foreseeable consequences if the applicant removed from Australia to Bangladesh.

   Particulars:

   Despite the facts that hundreds of BNP supporters are killed or tortured by Awami League Supporters and jailed or tortured by the Awami League present Government, the AAT did not account the present political circumstances of Bangladesh and did not accept that the applicant has substantial grounds of believing that as necessary and foreseeable consequences of applicant being [removed] from Australia to Bangladesh.

   [5] Applicant claims that the AAT did not [elaborate] in finding of reasons what is definition of Substantial background and Marginal backgrounds. The AAT failed to give a reasonable explanation about the circumstances for Bangladesh in which Substantial Backgrounds will cover.

   [6] The applicant claims that the AAT used a limited information about the Bangladesh current situations And made decision with closed mind. Every country has different circumstances and it cannot be apply for one particular country.

2. The grounds stated in the application were not divided into numbered paragraphs. At the hearing before me, however, and with the consent of the applicant, who is not legally represented, I assigned the numbers I have included in square brackets in the grounds I have quoted, and requested the interpreter to interpret each part of the grounds to which I had assigned a number, and I invited the applicant to make submissions in relation to each part of the grounds that was interpreted. In these reasons for judgment, I will describe as a distinct ground each part of the grounds to which I attached a number.

Ground [1]

1. The applicant made no submission in relation to ground [1]. The ground itself claims the Tribunal discarded all of the applicant’s oral and written evidence and claims. If by this part of the applicant’s grounds of application the applicant intends to claim the Tribunal did not consider the applicant’s evidence and claims, then such a claim cannot be accepted.

2. In its reasons for decision, the Tribunal set out in detail the claims the applicant made at each of the five occasions on which the applicant articulated his claims for protection. As should be apparent from my summary of its reasons, the Tribunal considered the applicant’s claims. It considered the claims the applicant made about his political activities in Bangladesh before he went to Malaysia, the claims he made about his assault by the BNP and the Awami League, and the claims the applicant made about the threats his family had received from his uncle and Mr B’s men. The Tribunal identified a number of inconsistencies, and other difficulties with the applicant’s claims on which the Tribunal relied for not accepting the applicant’s claims. It was reasonably open to the Tribunal not to accept the applicant’s claims for the reasons it gave.

1. This part of the applicant’s grounds fails.

Ground [2]

1. The applicant initially said he did not wish to make submissions about ground [2]. I asked the applicant, however, what facts he claimed the Tribunal misunderstood. The applicant said he was unable to articulate his claim, and that maybe he made a mistake with the dates and times. The applicant further said he told the Tribunal the problems he had with his life, but the Tribunal gave the applicant no credibility. The applicant also said that maybe the Tribunal did not understand.

2. The applicant was unable identify to me the fact or facts he claims the Tribunal misunderstood, or how the Tribunal misunderstood the facts. From the material that is before me, there is no suggestion the Tribunal misunderstood any part of the applicant’s claims or misunderstood or mistook any fact. This part of the applicant’s claims also fails.

Ground [3]

1. The applicant made no submission in relation to ground [3]. It claims the applicant gave evidence before the Tribunal in a state of nervousness and distress.

2. It may be accepted the applicant may have been nervous during the hearing before the Tribunal; but that by itself does cannot demonstrate any jurisdictional error by the Tribunal. There is, however, no evidence to suggest the applicant was in a state of distress in the course of giving evidence. This part of ground [3], therefore fails.

3. The applicant also claims he was denied procedural fairness and natural justice because the Tribunal discarded his evidence, and believed his evidence to be vague and inconsistent. The Tribunal made no jurisdictional error in concluding the applicant’s evidence was vague and inconsistent. It is apparent from the Tribunal’s reasons that it was reasonably open to it to conclude the applicant had given inconsistent evidence; and there is nothing in the evidence before me that suggests it was not reasonably open to the Tribunal to conclude that the applicant’s evidence was vague.

4. This part of the applicant’s grounds, therefore, fails.

Ground [4]

1. Ground [4] claims the Tribunal failed to apply the correct test for complementary protection prescribed by s.36(2)(aa) of the Act. The basis of that claim is the Tribunal did not consider the current political situation in Bangladesh, and, in particular, the violence perpetrated by the Awami League against BNP supporters.

2. The Tribunal stated the correct test for complementary protection. Further, given the findings the Tribunal made, it was not necessary for the Tribunal to consider evidence about the political situation as it affected supporters of the BNP. The Tribunal: (i) found the applicant was a low level supporter of the BNP for a brief period, involving little more than passing on information and trying to recruit people; (ii) accepted the applicant ceased to participate in the Chhatra Dal after he returned from Malaysia; (iii) was not satisfied the applicant had been attacked; and (iv) did not accept there was a real chance the applicant will resume his involvement in politics if he were to be returned to Bangladesh.

3. This part of the applicant’s grounds also fails.

Ground [5]

1. This part of the grounds of application is difficult to understand. The applicant, however, did make a submission at the hearing in relation to the ground. He said that when he was with Chhatra Dal, he was not a famous leader, yet he still faced troubles. It appears, therefore, that the words “Substantial background” are intended to refer to high level supporters or members of Chhatra Dal and “Marginal backgrounds” to refer to low level supporters or members. The complaint, therefore, appears to be the Tribunal did not explain the distinction between these two classes of supporters and why a low level supporter would face a lesser risk of harm than a high level supporter.

2. If that is the true intent of this part of the grounds, it discloses no jurisdictional error by the Tribunal. First, it is clear from the Tribunal’s reasons for decision what it meant by “low-level supporter”. The Tribunal said it amounted to the applicant’s passing on information and trying to recruit people. Second, the Tribunal’s conclusion that the applicant did not face a real risk of harm was based (or even substantially based) on its finding the applicant was a low level supporter of Chhatra Dal. The Tribunal also relied on the applicant’s evidence on its accepting that the applicant had ceased to participate in political activity when he returned from Malaysia, on its not accepting the applicant’s evidence that he had been attacked by the BNP or the Awami League, and on its not accepting there was a real chance the applicant will resume his involvement in politics if he were to return to Bangladesh.

3. This part of the applicant’s grounds also fails.

Ground [6]

1. The applicant made no submissions in relation to ground [6]. It makes two claims. The first claims the Tribunal used limited information about the current political situation in Bangladesh. This assumes the Tribunal was required to consider the current political situation in Bangladesh. That assumption is incorrect. There was no occasion for the Tribunal to consider the current political situation in Bangladesh, given, as I have noted, it was not satisfied there was a real risk the applicant would resume his political activities if he were to return to Bangladesh, and given the Tribunal did not accept the applicant’s claims that he had been the subject of political violence by members of the Awami League or by the BNP.

2. Ground [6] also claims the Tribunal approached his claims with a “closed mind”. That claim cannot succeed. The Tribunal identified the applicant’s claims on each occasion the applicant articulated them, the Tribunal asked the applicant questions about his claims, and the Tribunal gave reasons for not accepting the applicant’s claims on which it was reasonably open to the Tribunal to rely.

3. This part of the applicant’s grounds also fails.

Conclusion and disposition

1. None of the grounds on which the applicant relies has been made out. It follows, therefore, that the application will be dismissed.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Date: 26 May 2017