ANT16 v Minister for Immigration

[2017] FCCA 2228

FEDERAL CIRCUIT COURT OF AUSTRALIA

ANT16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2228

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Protection (Class XA) visa – there is no misapplication or misconstruction of the relevant law or relevant test – the Tribunal’s findings were open and cannot be said to lack an evident and intelligible justification – no jurisdictional error identified – amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 476

Applicant: ANT16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 553 of 2016

Judgment of: Judge Street

Hearing date: 13 September 2017

Date of Last Submission: 13 September 2017

Delivered at: Sydney

Delivered on: 13 September 2017

REPRESENTATION

Counsel for the Applicant: Ms S Palaniappan

Solicitors for the Applicant: Fragomen

Counsel for the Respondents: Mr T Reilly

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The amended application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $6,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 553 of 2016

ANT16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act1958 (Cth) (“the Migration Act”) in respect of a decision of the Administrative Appeals Tribunal (“Tribunal”) made on 12 February 2016 affirming a decision of the delegate not to grant the applicant a protection visa.

2. The applicant was found to be a citizen of Bangladesh who arrived in Australia as an unlawful maritime arrival in March of 2013. The applicant claimed to fear harm by reason of alleged extortion and assault in the past by supporters of the Awami League, allegedly because he was a businessman from a wealthy family and a member of the Bangladesh National Party (“the BNP”). The applicant claimed to fear harm if he returned to Bangladesh by supporters of the Awami League or the Bangladesh authorities for those reasons and because of his knowledge of corrupt practices by the Awami League and because he applied for asylum in Australia. 

3. On 12 September 2014, the delegate found the applicant was not a credible witness in relation to his claims and found the applicant failed to meet the criteria for the grant of a visa under the Migration Act.

The Tribunal’s decision

1. On 15 October 2014, the applicant applied for review. The applicant was invited to attend a hearing which the applicant attended on 12 October 2015 to give evidence and present arguments and was assisted by his migration agent who attended the hearing by telephone. The Tribunal noted that the migration agent had provided written submissions to the Tribunal prior to the hearing. The Tribunal expressly referred to having regard to the document provided about the applicant’s alleged position in the BNP and the migration agent’s submissions which the Tribunal identified and set out in more detail in its reasons.

2. The Tribunal correctly set out the relevant law. The Tribunal identified raising with the applicant during the hearing the credibility issues with the applicant. The Tribunal noted that following the hearing, it received further submissions in relation to the applicant’s credibility.

Consideration of refugee convention criteria

1. The Tribunal expressly referred to the applicant’s claimed fear of harm if he returned to Bangladesh because he had knowledge about corruption of the Awami League and of applying for asylum in Australia in paragraph 1 of its reasons and also in the Tribunal’s further summary of the applicant’s fears in paragraph 19. 

2. The Tribunal was not satisfied that the applicant was a businessman.  The Tribunal found the applicant’s evidence in relation to the alleged business involvement to be vague and evasive.

3. The Tribunal made reference to the applicant’s claims in relation to alleged involvement with the BNP and a letter produced by the applicant which identified different positions more senior to that than the applicant had identified. The Tribunal referred to the prevalence of fraudulent documents in Bangladesh. 

4. The Tribunal found the applicant provided inconsistent evidence regarding his positions with the BNP and the Tribunal did not accept the letter he provided from the BNP as a credible document. The Tribunal found the applicant’s willingness to provide a non‑credible document in order to advance his claims further undermines his credibility. The Tribunal considered the inconsistency in the applicant’s evidence regarding his positions with BNP weigh in favour of finding the applicant was not a credible witness. The Tribunal was not satisfied the applicant was a member of BNP. 

5. The Tribunal made reference to the applicant’s past claims of harm. The Tribunal found there to be only a remote or speculative chance of political violence to the applicant in Bangladesh. The Tribunal therefore found there is not a real chance the applicant will face persecution for reason of his being a member of a wealthy family either from supporters of the Awami League or Bangladesh authorities now or in the reasonable foreseeable future if he returns to Bangladesh.

6. The Tribunal then turned to the fear of harm claimed as a result of being an asylum seeker. On page 155 of the Court Book, there are submissions of the applicant’s migration representative headed “Failed Asylum Seeker” and which outlined as follows at paragraphs 90-91:-

   Failed asylum seeker

   90. On 25 May 2015 the Sydney Morning Herald published an article titled “Bangladesh PM Sheikh Hasina slams starving migrants as “mentally sick.” The article goes on to quote Sheikh Hasina as saying:

   Side by side with the middlemen, punishment will have to be given to those who are moving from the country in an illegal way ... they are tainting the image of the country along with pushing their life into danger.

   91. Neither the article nor Sheikh Hasina has defined what “punishment” will consist of.  However, given her scathing words and Bangladesh's poor human rights record, it is put to the Tribunal that the Applicant has a well-founded fear of persecution on his return as a failed asylum seeker.

7. The same topic was then raised in relation to complementary protection in relation to fears of significant harm identifying the same quote, as well as other country information in paragraph 107-113 of the submissions of the applicant’s migration representative.

8. Under heading “Asylum Seeker”, the Tribunal referred to the applicant’s claimed fear of harm because he had applied for asylum in Australia but observed that the applicant was unable to spontaneously refer to this claim. The Tribunal noted that the applicant kept referring to his claimed role with the BNP and being extorted and that he did not wish to return to Bangladesh for those reasons. The Tribunal raised with the applicant that his inability to discuss the claim may cause concern as to whether the applicant has any genuine fear of harm on return to Bangladesh for the reason he applied for asylum.

9. The Tribunal made express reference to the pre-hearing submissions and referred to the quoted comments identified in the submissions by the Prime Minister made in May 2015.  The Tribunal identified that the statement is one in which the Prime Minister referred to Bangladeshis who illegally migrated to other countries were “mentally sick”, “tarnishing international reputation of Bangladesh” and along with the middlemen “should be punished.” The Tribunal continued that the agent stated that the comments of the Bangladesh Prime Minister, when seen in context of human rights are ground for the applicant to have a well-founded fear of persecution.

10. The Tribunal referred to the fact that at the hearing the migration agent submitted that the applicant provided a media report of the Prime Minister’s comments and asserted that he did have a subjective fear regarding that. The Tribunal noted that it was submitted that Bangladesh was a country for which it was difficult to obtain up to date information as to whether any persons were being punished by Bangladeshi authorities. The Tribunal then referred to the evidence before the Tribunal which did not suggest that any failed asylum seeker returnees to Bangladesh have been punished by the Bangladesh authorities. That was a finding open to the Tribunal to make.

11. The Tribunal then identified that it considers there to be only a remote or speculative chance, and therefore not a real chance, the applicant will face persecution as a failed asylum seeker now or in the reasonably foreseeable future if he returns to Bangladesh. 

12. The Tribunal found the applicant fabricated his claims regarding his being a businessman and a member of BNP.  The Tribunal rejected that he or his brother had been harmed by supporters of the Awami League in the past.

13. The Tribunal was not satisfied the applicant has a well-founded fear of persecution from supporters of the Awami League or Bangladesh authorities for reasons of his political opinion, because he is a member of a wealthy family, because he was a witness to corruption, because he applied for asylum or any Convention reason or combination of reasons, now or in the reasonably foreseeable future if he returns to Bangladesh. The Tribunal found the applicant failed to meet the criteria under s.36(2)(a) of the Migration Act.

Consideration of complementary protection criteria

1. The Tribunal found there are not 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 he will suffer significant harm. The Tribunal found the applicant failed to meet the criteria under s.36(2)(aa) of the Migration Act and affirmed the decision under review.

Before this Court

1. The grounds of the amended application are as follows:-

   1. The Tribunal misconstrued or misapplied the test for well-founded fear of persecution in respect of the applicant’s claim that he would be persecuted for reason of being a member of a particular social group of failed asylum seeker who illegally departed Bangladesh, if he returned to Bangladesh, and as a result fell into jurisdictional error.

   Particulars

   a. In determining whether the applicant had a well-founded fear of persecution, the Tribunal was obliged to consider what may happen to the applicant in the reasonably foreseeable future.

   b. In its decision at [40], the Tribunal referred to and acknowledged the statement by the Prime Minister of Bangladesh in May 2015 that failed asylum seekers who illegally fled Bangladesh would be punished.

   c. The Tribunal noted at [40] that the prime minister’s comments were that Bangladeshis who illegally migrated “should be punished”, when her statement was in fact that “punishment will have to be given”.

   d. The Tribunal found at [41] that the evidence before the Tribunal did not suggest that any failed asylum seeker returnees to Bangladesh had been punished by the Bangladeshi authorities.

   e. The Tribunal gave no other reasons relevant to a finding that the Prime Minister’s comments did not give rise to a real chance the applicant would not face persecution.

   f. As a result of (a) to (e) (d) above, the Tribunal failed to apply the “real chance” test, because it did not consider the likelihood of harm in light of the Prime Minister’s comments going forward, but instead only considered the likelihood of harm in the past and without reference to or in consideration of the recent comments of the Prime Minister.

   2. The Tribunal misconstrued or misapplied s 36(2)(aa) of the Act.

   Particulars

   a. The Tribunal stated at [47] that the “real chance test for well-founded fear of persecution imposes the same standard as the real risk test of significant harm”.

   b. Based on its findings with respect to the real chance test, the Tribunal was not satisfied that the applicant faced a real risk of significant harm.

   c. The Tribunal, however, committed jurisdictional error with regards to the “real chance” test as outlined in Ground 1.

   d. As a result of (a) to (c) above, the Tribunal committed a further jurisdictional error in its application of s 36(2)(aa) and its finding that there was no real risk of significant harm.

Consideration

Ground 1

1. Ms Palaniappan of counsel on behalf of the applicant submitted that the Tribunal had misapplied the correct test in relation to a well‑founded fear of persecution on the basis that the Prime Minister’s comments, in substance, gave rise to the applicant being a refugee sur place. Ms Palaniappan of counsel drew attention to the reference by the Tribunal to “should be punished” rather than what was said in the article that “punishment will have to be given”.  Ms Palaniappan of counsel contended that the Tribunal did not give reasons that were cogent in relation to the finding that the Prime Minister’s comments did not give rise to a real chance the applicant would face persecution on return to Bangladesh.

2. The Tribunal’s reasons are not to be read with a keen eye for error. It is apparent on the face of the Tribunal’s reasons, that the Tribunal had a real and meaningful intellectual engagement with the submissions advanced by the applicant in relation to being a failed asylum seeker and made adverse findings that were open to the Tribunal on the material before the Tribunal. 

3. The absence of evidence was a relevant consideration for the Tribunal to take into account in its findings. The conclusion that the Tribunal made in relation to the applicant not having a well-founded fear of persecution was a finding that was open to the Tribunal on the material before the Tribunal and cannot be said to be illogical, irrational or unreasonable.

4. There is no misapplication or misconstruction of the relevant law or misconstruction or misapplication of the relevant test in relation to whether the applicant had a well-founded fear of persecution. No jurisdictional error as alleged in ground 1 is made out. 

Ground 2

1. Ms Palaniappan of counsel accepted that ground 2 was interdependent on ground 1. In any event, it is apparent that the Tribunal for the reasons already given, correctly identified the relevant law in relation to complementary protection. 

2. It was open to the Tribunal to take into account its findings made in relation to the applicant’s claims under the Refugee’s Convention in determining the criteria in respect of complementary protection. There is no substance in the assertion that the Tribunal misconstrued or misapplied s.36(2)(aa) of the Migration Act. No jurisdictional error is made out by ground 2.

Conclusion

1. The amended application is dismissed.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  26 September 2017