AMD15 v Minister for Immigration

[2015] FCCA 1292

FEDERAL CIRCUIT COURT OF AUSTRALIA

AMD15 & ORS v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1292

Catchwords:
MIGRATION – Refugee Review Tribunal – Protection (class XA) visa – no jurisdictional error.

PRACTICE AND PROCEDURE – Summary dismissal – proceedings summarily dismissed.

Legislation: 

Federal Circuit Court Act 1999, s.17A
Federal Circuit Court Rules 2001, r.13.10
Migration Act 1958 s.476

Spencer v the Commonwealth of Australia (2010) 241 CLR 118

First Applicant: AMD15

Second Applicant: AMN15

Third Applicant: AMP15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1057 of 2015

Judgment of: Judge Street

Hearing date: 14 May 2015

Date of Last Submission: 14 May 2015

Delivered at: Sydney

Delivered on: 14 May 2015

REPRESENTATION

No appearance by the applicant

Solicitors for the Respondents: Mr Elliott
DLA Piper Australia

ORDERS

1. The proceedings be summarily dismissed.

2. The first and second applicants pay the first respondent’s costs fixed in the sum of $2000.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 1057 of 2015

AMD15

First Applicant

AMN15

Second Applicant

AMP15

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. 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 the Tribunal’s made on 23 March 2015 affirming a decision of the delegate not to grant the applicants a Protection visa.  The grounds in the application are as follows:

   Affidavit Attached.

   2. That the Refugee Review Tribunal did not consider the warrant of my arrest as real and genuine.

   3. My application for Protection visa was based on real fears for my safety.

   4. My involvement in Bangladesh politics is over many Years and I still continue to be in fear for my life and will be jailed or imprisonment if returned to Bangladesh.

2. The applicant has failed to appear.  The matter was listed at 9.30 am and it is now past 10.30 am.  This is a matter in which the grounds in the application are hopeless and the first respondent would otherwise have moved for an immediate show cause hearing.  The Court has had the benefit of having before it the Court book.  There is no jurisdictional error disclosed by the grounds set out by the applicant.  In considering exercise of the Court’s summary jurisdiction under s.17A (Federal Circuit Court Act 1999) and r.13.01 (Federal Circuit Court Rules 2001), I take into account the principles and caution in Spencer v the Commonwealth of Australia (2010) 241 CLR 118, and, in particular, [24]-[25] and [59]-[60].

3. The applicants applied for visas on 22 November 2012 which the delegate refused to grant on the 1 August 2013.  The applicants appeared before the Tribunal on 17 March 2015 to give evidence and present arguments and were assisted by an interpreter.  The Tribunal carefully set out the applicable law and ministerial direction to which the Tribunal had regard.  The Tribunal identified a statement provided by the applicant and, relevantly, the delegate’s decision in relation to which the first applicant was found not to be credible. 

4. Relevantly, the delegate found that the first applicant had provided fraudulent documents.  The Tribunal made the same findings.  The Tribunal carefully set out the nature of the claims and evidence of the applicant and materially focused on the applicant’s returns to Bangladesh on at least two occasions.  The Tribunal put to the first applicant, the concerns as to his credibility and did the same in relation to the second applicant and specifically put to the applicant the propounding of fraudulent documents. 

5. The Tribunal carefully set out the country information and relevantly made adverse findings as follows:

   171. The applicant came to Australia on a visitor’s visa together with his family. Prior to coming to Australia he had travelled variously on business to a variety of countries entering and exiting Bangladesh on numerous occasions and in doing so experienced no serious difficulties and having four Bangladeshi passports in total given the extent of his travel abroad.

   172. The applicant’s evidence was that he did not intend to remain in Australia, and that the situation changed when he was here and learned that a leader and supporter of his group in Bangladesh was arrested and killed. He learned this immediately after arriving in Australia. He did not apply for a protection visa upon arrival in Australia. He delayed lodging his protection visa application for some 40 days after arriving in Australia.

   173. The Tribunal considered the applicant’s evidence and finds that his multiple entries and exits from Bangladesh are not consistent with a subjective fear of persecution in Bangladesh. It further finds that his wife’s entries and exits from Bangladesh are also not consistent with a subjective fear of persecution. Asked why he kept returning to Bangladesh, the applicant indicated that he travelled on business, his business was in Bangladesh and that he was involved in politics there, it was his country and his family were there and that therefore he kept going back. The Tribunal considered the applicant’s evidence, but finds that the applicant’s multiple re-availment of the protection of Bangladesh in particular in 2012 is not consistent with a subjective fear of persecution. Further the delay in the lodgement of the protection visa application is further inconsistent with a subjective fear of persecution as had the applicants feared serious harm in Bangladesh they should have applied for protection at the first opportunity.

   174. The Tribunal further notes that the applicants lived at the same address until their departure from Bangladesh, despite their claimed fears, including the applicant’s claims there were charges outstanding against him. The Tribunal finds that the authorities in Bangladesh had ample opportunity to arrest or detain the applicant or otherwise cause serious harm had they wished to do so. The Tribunal finds that the applicant continuing to work at the same workplace and to have lived until a short time before his departure at the same home, when he claimed to stay elsewhere but still in Dhaka, not to be consistent with a subjective fear of persecution. Further, it places into serious question whether the agents of harm whom he claims to fear have any interest in him.

   175. The applicant claimed to have been associated with the BNP for at least 20 years, although in his statement, it would appear to be some 25 years. Placed in the context of his claim to have taken an interest in the BNP as a result of Rahman returning to power after a period of bad governance by the AL, he testified that he became involved with the BNP in 1992 or 1993. He indicated in his protection visa application that he became active in the [C] and held an executive office in his college in the early 1990s. In his statement, he claimed to be Joint Secretary of the [J], whilst at hearing and in documents tendered by him in support of his claims he is referred to as Assistant General Secretary in his thana. The applicant claimed involvement in the [C] in his statement, further claiming to be “a leading activist”, but apparently forgot this involvement, including his claim to be an executive member of the [C] in college at the level of Vice-President, at his Tribunal hearing. His claimed position in the [J] was inconsistent in his statement and his oral testimony. The applicant’s evidence as to his role and profile in the BNP and its affiliated organisations was confused, inconsistent and contradictory. The Tribunal finds that these factors further impact adversely on the applicant’s credibility and that his credibility is seriously undermined.

   …

   177. The applicant was asked about the BNP manifesto. Asked the points of the manifesto he was able after considerable difficulty to articulate development as a point in the manifesto, and after hesitation added democracy and law and order, but was unable to articulate any other points of the manifesto. The Tribunal finds that the applicant’s inability to convey the party manifesto, the cornerstone of the BNP, further seriously undermines his claims to have been a BNP office holder and activist. The Tribunal finds that this further seriously undermines his credibility.

   178. The applicant was asked how many parliamentary elections had taken place in the time he was associated with the BNP. He was hesitant, but after considerable hesitation did testify that there were elections in 1996, 2000, 2001, and 2008 and that there was a recent one the last one but could not remember when it was although he was living with his wife at the time. He did not recall whether there were elections in 2006 or 2007 but then indicated later that there were elections but they were contested as to their validity. He was hesitant as to whether the BNP had only been successful in the 2001 elections since he became involved, and was confused as to his own claimed candidate’s electoral successes and what led to him no longer being an MP. The applicant’s inability to accurately recall the electoral history locally or nationally given his claim to be a BNP office holder, further seriously undermines the applicant’s credibility.

   …

   180. The applicant claimed to have been a supporter of the BNP yet he was unable to articulate any evidence persuasive to any degree of his claimed affiliation with the BNP much less as an office holder as claimed. His knowledge of the BNP was sorely lacking. His testimony was hesitant and fraught with errors. It was put to the applicant that given his evidence, it was difficult to accept that he was affiliated with the BNP as claimed. He responded that he was nervous, and volunteered that he was receiving counselling for the first time. The Tribunal considered the applicant’s explanations but finds that there is no issue as to the applicant’s capacity to give evidence and that his inability to present consistent credible evidence is a function of his claims being fictitious rather than any other reason, given the multiple inconsistencies, contradictions, and anomalies in his evidence.

   181. The Tribunal considered the evidence before it, but finds that the applicant was not affiliated with the BNP and finds given that his evidence was inconsistent, confused and contradictory in relation to his role and profile and matters that would be familiar to a BNP activist, that he was not affiliated with the BNP as claimed.

   182. The Tribunal considered the applicant’s evidence relating to his claimed affiliation with the BNP. His evidence in relation to his being attracted to the BNP was, at best, superficial. When asked about elections, his evidence was tentative and confused. His evidence was devoid of specific detailed principles 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 lacked any supporting detail which a supporter, much less a claimed leader of a political party would be able to  relate. The Tribunal considered the applicant’s evidence as to his motivation for joining and becoming active with the BNP. The Tribunal considered the applicant’s evidence and rejects his claimed affiliation with the BNP.

   183. The Tribunal does not accept that the applicant suffered any harm in Bangladesh as a result of his claimed affiliation with the BNP or its affiliated organisations.

   184. The applicant claimed at hearing that there are two cases against him. He provided purported court documents in relation to the charges arising in May 2012 only at the time of the hearing. He mentioned that charges are outstanding in relation to April 2010 events for the first time at his hearing. The May 2012 case predates a number of entries and exits legally from Bangladesh without apparent difficulty. The applicant remained in Bangladesh for a considerable period of time without facing arrest or detention and left legally. The Tribunal further draws an adverse inference in relation to the documents given that they were only produced at the hearing, given that they had been purportedly issued well in advance of it and the purported offence occurred before the applicant’s departure from Bangladesh.

   185. The Tribunal gives the court documents including the warrant no weight and further finds that in tendering fraudulent evidence to the Tribunal, the applicant has further very seriously undermined his credibility. It finds that there are no politically motivated charges against the applicant in Bangladesh. Having found the applicant not to be affiliated with the BNP, the Tribunal gives no weight to the documents supported by him throughout the application process, including those presented only at the time of the hearing. Further in this context, the documents contain numerous spelling and other errors and are inconsistent with the applicant’s claims.

   186. Given the country information before the Tribunal indicating that fraudulent documentation from Bangladesh is readily available, it gives the purported evidence relating to charges no weight. In relation to there being an outstanding charge against the applicant, the Tribunal gives this claim no weight. Given the irregularities highlighted above in the applicant’s evidence the Tribunal gives none of the documents provided by the applicant any weight.

   187. The Tribunal does not accept that the applicant faced harm in Bangladesh, and finds that there is no credible or trustworthy evidence before it that the police, Rapid Action Battalion (RAB), the AL, or anyone, or any agency or group acting at its behest, has any interest in the applicant.

   188. Further, given the country information, the Tribunal finds that the applicant does not face a real chance of persecution in Bangladesh for reasons of political opinion.

   189. It repeats its findings in relation to the applicant’s delay in lodging his protection visa and multiple returns to Bangladesh and finds that his actions and inaction are inconsistent with a subjective fear of persecution and further seriously undermine his overall credibility. He does not have a subjective fear of persecution.

   190. The Tribunal finds that the applicant is not of interest to the authorities in Bangladesh and that no charges are outstanding against him, nor is there a real chance that the applicant would face politically motivated fabricated criminal or other charges for reasons of political opinion. In this context the Tribunal notes that the applicant has exited and re-entered Bangladesh repeatedly on a genuine Bangladeshi passport and faced no difficulty in so doing.

   191. It finds that his fear of persecution for this reason is not well founded.

   192. The Tribunal next considered the applicants’ claims relating to the last minute claim by the applicant’s estranged wife that she faces harm in Bangladesh at the hands of a man affiliated with the AL who proposed to her in 2008 prior to her marriage to the applicant. The Tribunal finds this claim to be a fabrication, and gives it no weight. The applicant’s wife and the applicant had ample opportunity to present this claim prior to the Tribunal hearing, either at the primary level or in the lead up to the Tribunal hearing. It has not been advanced previously. Even if the Tribunal were to accept that the proposal took place, it is now remote in time, having occurred some seven or more years ago. The applicant has been married, is still legally married and has a child with another man and intends to reunite with him despite their claimed current separation. This man had ample opportunity to cause serious harm to the applicant’s wife, the applicant’s child or indeed the applicant had he had any interest in so doing. Further, the Tribunal notes that the applicants both returned to Bangladesh, in the applicant’s case on multiple occasions since their marriage. The Tribunal finds that there is no real chance that any of the applicant’s would face serious harm at the hands of the man in question even if it were to accept this evidence as truthful.

   193. The Tribunal finds that the applicants are not persons in respect of whom Australia owes protection obligations.

   194. The Tribunal finds that there is no real chance that the applicant will face persecution in Bangladesh for any Convention reason.

   …

   196. The Tribunal finds that the applicant and the applicant’s wife as well as the applicant’s child do not have a well-founded fear of persecution in Bangladesh for any Convention reason.

   197. The Tribunal has also considered whether there are substantial grounds for believing that, asa necessary and foreseeable consequence of the applicants being removed from Australia to Bangladesh, there is a real risk that they 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 applicants. The Tribunal finds that, given that the applicant is not credible in relation to his affiliation with the BNP and his overall credibility has been undermined to such an extent that there is no credible or trustworthy evidence before it, and that he faced no harm in Bangladesh, and further that there are not substantial grounds for believing there is a real risk they will suffer significant harm in Bangladesh for reasons of the applicant having been in business, having money, the general security situation in Bangladesh or if he has donated money to the BNP, it finds that there are not substantial grounds for believing that there is a real risk they would face significant harm in 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 applicants will be arbitrarily deprived of their life, or the death penalty will be carried out on them, or that they 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 applicants will suffer significant harm in Bangladesh. The Tribunal is not satisfied on the evidence that a real risk of significant harm exists for the applicants. The Tribunal does not accept that the applicants are person in respect of whom Australia has protection obligations under paragraph 36(2)(aa) of the Act.

6. I am satisfied the evidence of findings by the Tribunal were clearly open. The grounds fail to disclose any arguable case of jurisdictional error. Paragraph 2 and 4 of the Affidavit are an impermissible challenge to adverse findings of fact. Paragraph 3 of the Affidavit is an impermissible challenge to the merits. The application discloses no arguable jurisdictional error. I am clearly satisfied the proceedings had no reasonable prospect of success.  The proceedings are summarily dismissed.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  19 May 2015