ANA16 v Minister for Immigration

[2016] FCCA 2972

FEDERAL CIRCUIT COURT OF AUSTRALIA

ANA16 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2972

Catchwords:
MIGRATION – Protection visa application – review of decision of Administrative Appeals Tribunal – whether the Tribunal erred by taking into account irrelevant considerations – whether the Tribunal erred in asking irrelevant questions – whether the Tribunal correctly applied the test for persecution – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.425

Applicant: ANA16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 528 of 2016

Judgment of: Judge Smith

Hearing date: 3 November 2016

Date of Last Submission: 3 November 2016

Delivered at: Sydney

Delivered on: 3 November 2016

REPRESENTATION

The applicant appeared in person.

Solicitors for the Respondents: Mr D. McLaren, Minter Ellison

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $6,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 528 of 2016

ANA16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Extempore and Revised)

Background

1. The applicant is a citizen of Bangladesh who arrived in Australia on 28 March 2013. On 1 July 2013, he lodged an application for a protection visa. The claims that the applicant made in support of that application were described in the decision of the Administrative Appeals Tribunal at [10] to [22] on p.466 and 467 of the Court book:

   [10]He is a Bangladeshi, born on 31 December 1985. His religion is Islam and he grew up in Sirajganj. His father worked in a clothing shop which he owned until his death in 2007. He then took over the shop. His mother was a housewife. He has never been married, has no children and completed 8 years of education.

   [11]Between one and three times each month, extortionists would come to the shop and ask them to pay an illegal toll. Although they did not identify themselves he knew they were from the Awami League.

   [12]He was not an Awami League supporter; he supported the BNP[1] in his beliefs, by making donations and attending some large meetings. His father also supported the BNP; donating money, attending meetings and events.

   [13]Since his father died the extortion became worse. The extortionists visited other shops but they were Awami League supporters. Because he was BNP he had to pay more money.

   [14]He believes the other shop owners told them he was BNP because they were jealous that his shop was doing better and he was not from Jessore. He made about 20,000 taka per month profit.

   [15]Once in about 2011 he refused to give money and his shop was vandalised and things were taken.

   [16]On 14 January 2013 there was a murder in Horirakundu, about 1 mile from Jessore. A boy named Anantha, who was about 14.or 15, was killed. He did not know about the murder at the time but later found out that charges had been filed against him that he committed the murder.

   [17]He believes, and BNP supporters have told him, that Awami League members falsely accused him of the murder. This was because he is BNP and his shop was doing well.

   [18]The Awami League members and other shop owners targeted him because they wanted him to leave Jessore.

   [19]He heard about the charge from someone he knew who worked at the police station and he went into hiding. He travelled to Chittagong, which took about 2 days. He left Bangladesh on around 6 February 2013 and travelled through Thailand, Malaysia and Indonesia before arriving to Darwin on 28 March 2013.

   [20]Since he came to Australia his mother has told him that the police have come to their house asking his whereabouts.

   [21]He fears that if he returns to Bangladesh he will be falsely arrested, interrogated, mistreated by the police sentenced to life in jail or sentenced to the death penalty.

   [1] Bangladesh National Party.

   [22]He has nowhere else to go and there is nowhere in Bangladesh that is safe for him.

2. On 30 September 2014, a delegate of the Minister made a decision not to grant the applicant a protection visa. The applicant then applied to the Refugee Review Tribunal[2] for review of that decision. He attended a hearing conducted by the Tribunal on 29 January 2016. On 19 February 2016, the Tribunal made a decision to affirm the decision of the delegate.

   [2] As it was then known. On 1 July 2015 it became the Administrative Appeals Tribunal: Tribunals Amalgamation Act 2015 (Cth).

Tribunal’s decision

1. The Tribunal found that the applicant’s responses to many of the questions asked by the Tribunal at the hearing were vague, lacking in detail and inconsistent. It found that the applicant was, at times, evasive and vague and unable to provide the level of details which could be expected in the circumstances about significant events. The applicant continually claimed to have no, or little memory, about significant aspects of his claims, despite such events being well-documented and having occurred relatively recently. The Tribunal had serious concerns about the applicant’s credibility and found that he had not told the truth in relation to crucial aspects of his claims.

2. The Tribunal gave a number of detailed reasons for those conclusions. First, in respect of the applicant’s claimed involvement in the Bangladesh National Party, the Tribunal found that the applicant had demonstrated very little knowledge of that party’s political agenda or platforms. The Tribunal did accept that the applicant may favour the BNP over other political parties. However, it did not find that he was engaged in any noteworthy political activity in association with the BNP, which would likely give rise to him being adversely treated for that reason. The Tribunal did not accept that the applicant was actively involved in BNP political affairs in Bangladesh.

3. In respect of the applicant’s business, the Tribunal gave the applicant the benefit of the doubt and accepted that the applicant had taken over the operation of his family’s weaving and clothing business after his father had passed away. The Tribunal accepted, on the basis of the applicant’s oral evidence, that he may have come under some pressure from fellow shop owners to vacate his premises because he was an outsider and he was successful. However, the Member was not satisfied that those shop owners were affiliated with the Awami League; or that Awami League members or supporters had extorted money from him and destroyed his shop; or that this was due to him being a BNP supporter.

4. The Tribunal did not accept that the applicant was targeted by Awami League members; that his business was interfered with because he was a BNP supporter, and did not accept that he was abducted. In respect of the murder charge, the Tribunal having examined all of the evidence, including the documentary evidence relied upon by the applicant, did not accept that there was a pending murder charge. Further, it did not accept that the applicant would be falsely arrested, interrogated, mistreated by the police, sentenced to life in jail or sentenced to the death penalty as claimed. The Tribunal found that the applicant had nothing to fear in returning to Bangladesh for that reason.

5. The Tribunal then returned to consider whether the applicant’s ownership of the shop, and the attention he had received from local shop owners, might support his claim for a protection visa. It found that any pressure applied to him to vacate his premises had been restricted to verbal harassment. The Tribunal was not satisfied the applicant was forced to close his business for that reason, or that the verbal harassment he encountered, met the threshold required for a finding of serious or significant harm.

6. In any event, as the applicant had stated that he no longer operated the business and had made no claims that he wanted to resume such a business in the future, the Tribunal considered that the applicant faced no real chance or risk of serious or significant harm arising from future verbal harassment from other shop owners in his hometown on return to Bangladesh.

7. Finally, the Tribunal was not satisfied that the applicant’s family in Bangladesh was being pressed as claimed or that the applicant would face serious or significant harm for reasons related to that. On the basis of those findings, the Tribunal was not satisfied that the applicant met the criteria for the grant of a protection visa and accordingly, it affirmed the decision of the delegate.

8. The applicant now seeks judicial review of the Tribunal’s decision. In order to succeed, he must show that the Tribunal’s decision was affected by jurisdictional error. Effectively, this means that the applicant must show that the Tribunal did not properly fulfil its duty to review the decision of the delegate. It is not sufficient for the applicant to argue, for example, that he in fact told the truth to the Tribunal and the Tribunal ought to have accepted what he said. The truth of the applicant’s claims was a matter to be determined by the Tribunal within its jurisdiction and is not a matter for this Court to decide.

Consideration

1. In his application, there are a number of grounds raised. While they are not stated with the greatest clarity, it appears that what the applicant contends is as follows: first, that the Tribunal took into account irrelevant considerations; secondly, that the Tribunal was unreasonable to conclude that all documents from Bangladesh were fraudulent; thirdly, that the Tribunal asked irrelevant questions in order to confuse and discredit the applicant’s oral and written evidence; fourthly, that the Tribunal did not properly apply the test for persecution. In his written submissions the applicant did not, in reality, address any of these matters, but simply reasserted his case to be accepted as a refugee.

Ground one

1. The first ground that the Tribunal took into account irrelevant considerations might ordinarily be understood to raise a jurisdictional error. An irrelevant consideration in this context would be a matter that the Tribunal was prohibited from considering. Thus, for the Tribunal to take such a matter into account, would disclose that the Tribunal failed properly to understand the boundaries of its task. However, that is not what the applicant means by this ground.

2. In support of the ground, the applicant contends that he had told the truth in support of his claims, and effectively, that the Tribunal should have believed him. In other words, what the applicant means by “irrelevant consideration” is that the Tribunal did not make proper findings of fact. Understood in that way, the irrelevant consideration does not disclose any jurisdictional error. It may well be that the Tribunal was wrong in the findings that it made, but as I have said, that was a matter for the Tribunal and not a matter for the Court.

Ground two

1. The second ground concerns the way in which the Tribunal dealt with a number of documents relied upon by the applicant. These documents related to two particular matters. The first related to the applicant’s involvement in the BNP. The Tribunal referred to this relevant document at [30] of its reasons. Effectively, the Tribunal gave no weight to the document for two reasons. The first was that the statement in the document purporting to be signed by the President and two General Secretaries of the BNP of a particular district, referred to a role played by the applicant which was completely at odds with the applicant’s own account of his involvement with the BNP.

2. Secondly, the Tribunal relied upon country information to the effect that fraudulent documents were readily and easily obtainable in Bangladesh. In other words, the Tribunal did not fall into the error described by the applicant in the application: namely, to consider that all documents coming from Bangladesh were fraudulent and bogus.

3. The second group of documents concerned the murder charge which the applicant claimed he was subject to. In its reasons the Tribunal gave considerable attention to these documents: see [43] - [56] of the Tribunal’s decision.

4. Nowhere in its consideration did the Tribunal rely on any proposition that all documents from Bangladesh were fraudulent. While the Tribunal did rely on information to the effect that fraudulent documents were easily obtained in Bangladesh[3], - it did not go so far as suggested by the applicant. For those reasons this complaint made by the applicant is not made out.

   [3] See [56] of the Tribunal’s decision.

Ground Three

1. The third ground is that the Tribunal asked irrelevant questions to confuse and discredit the applicant. That is a fairly serious assertion and one in respect of which there is simply no evidence. It may have appeared to the applicant that the Tribunal was asking him questions concerning his credit and, as the applicant states that he believes that he was telling the truth, he might have felt that that questioning was unfair.  However, it was a fundamental part of the Tribunal’s role and duty to review the delegate’s decision to determine what the relevant facts were.

2. By asking the applicant questions about his claims, the Tribunal was not only fulfilling this part of its role, but giving the applicant the opportunity to give evidence about the issue of his claims and credibility, thus affording him the opportunity required by s.425 of the Migration Act1958 (Cth). For those reasons, this ground does not succeed.

Ground four

1. The final ground made in the application is that the Tribunal did not properly apply the test of persecution. That ground is explained in the application as being that the Tribunal adopted an unduly harsh approach and failed to take account of all circumstances.

2. However, that ground does not reveal any proper understanding of what the Tribunal actually did in its reasons. The only claim made by the applicant that was accepted by the Tribunal was that he was a shop owner and that he had been harassed by local shop owners. Having accepted that fact, the Tribunal then assessed whether that harassment in the future, might be sufficient to amount either to serious harm or significant harm. Those are the two types of harm that are necessary to establish in order to satisfy the criteria for the grant of a protection visa.

3. In assessing this question, the Tribunal determined the level of harm that had occurred in the past and the likelihood that it might occur in the future. It then determined as a fact of degree that that harm, namely verbal harassment, was not sufficiently serious to come within the meaning of serious harm or significant harm. That process of reasoning was entirely orthodox. Given that the question of whether particular conduct will amount to the relevant type of harm under the Act is a question of fact and degree, I can see no error in the Tribunal’s conclusion.

Conclusion

1. For those reasons the applicant has not raised any jurisdictional error in the Tribunal’s decision and the application must be dismissed.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Smith

Date: 25 November 2016