ATP16 v Minister for Immigration

[2017] FCCA 1108

FEDERAL CIRCUIT COURT OF AUSTRALIA

ATP16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1108

Catchwords:
MIGRATION – Application for judicial review of decision of Administrative Appeals Tribunal (Tribunal) affirming decision not to grant applicant Protection visa – whether Tribunal obliged to investigate authenticity of documents on which applicant relied – whether Tribunal prevented applicant from making claim – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 424AA

Applicant: ATP16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 790 of 2016

Judgment of: Judge Manousaridis

Hearing date: 19 May 2017

Date of Last Submission: 19 May 2017

Delivered at: Sydney

Delivered on: 26 May 2017

REPRESENTATION

Applicant in person assisted by an interpreter.

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 790 of 2016

ATP16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant, a citizen of Bangladesh and a Sunni Muslim, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) affirming the 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 arrived in Australia in April 2013 as an irregular maritime arrival. The applicant stated his claims for protection on three occasions: at an Irregular Maritime Arrival Entry Interview conducted by an officer of the Department on 8 May 2013;[1] in a written statement that formed part of his application for a Protection visa lodged on 24 July 2013;[2] and before the Tribunal on 10 February 2016.

   [1] CB1-16

   [2] CB81-87

2. According to the applicant’s written statement, he was born in the Jalokathi District in Bangladesh. The applicant claimed that, before 2006, the majority of villagers supported the Awami League, but the Bangladesh Nationalist Party (BNP) was in power. The applicant and his family had been BNP supporters for many years, and the applicant had been appointed as BNP political party chairman for his village.

3. In 2003 the applicant travelled to Saudi Arabia on a false passport with the assistance of a smuggler, Mr R, who was a member of the Awami League. In late 2003 the applicant was returned to Bangladesh by Saudi immigration officials. On his return, the applicant went with his friends and confronted Mr R. The applicant demanded his money back that he had paid for the visa, and when Mr R refused, the applicant and his friends assaulted Mr R and left. Mr R filed a complaint with the local police about the incident. Given that the BNP was in power and the applicant was involved with the party, the applicant was able to pay a bribe and remain living in the village despite receiving a court summons after the assault occurred.

4. Before the caretaker government came into power, Mr R was unable to harm the applicant even though he was related to an influential and powerful person in the village, Mr Re. Mr Re had previously encroached onto land owned by the applicant’s father in the village. From 2003 to 2006 the applicant received several notices from the local police that stated he was charged for various crimes which the applicant claims he did not commit. The applicant believes that these were the result of false allegations made by Mr R and Mr Re. The applicant continued to pay bribes to remain in the village until 2006.

5. In 2006, after the caretaker government came into power, “a list of names of criminals” who were wanted by authorities was published in the local newspaper. That list contained the applicant’s name. As soon as the applicant saw the list, he decided to leave Bangladesh as his life was now in danger. From 2006 until the applicant left Bangladesh in April 2013, the applicant was on the run, moving from village to village. The applicant was living in constant fear of being targeted, and he did not return to his village.

6. While in hiding, the applicant learned through his wife that the Bangladeshi police had come to search for him several times. The police told the applicant’s wife  he was wanted for several crimes. The applicant decided to leave Bangladesh by boat because it was not possible for him to remain on the run. The applicant was concerned that Mr R and Mr Re would take revenge on the applicant because they were supporters of the Awami League, being the party currently in power.

7. The applicant claimed he will be harmed by authorities for crimes he did not commit because of the false charges and claimed he believes that he is at risk of being harmed by Mr R and Mr Re. The applicant also claimed he believes that he will continue to be searched for as his name was included on the list of criminals, and that this will follow the applicant wherever he goes in Bangladesh.

8. In support of his application for protection, the applicant provided a number of documents. [3] These included letters that stated the applicant was active with the BNP, a first information report dated 20 August 2001 containing charges against eight persons, including the applicant, that they caused serious injury and demanded political bribes, a first information report charging two persons, including the applicant, with the possession for sale of 13 bottles of Phencidyle, warrants for arrest, and a court judgment

   [3] CB88-174

Tribunal’s decision       

1. The Tribunal had “a number of significant credibility concerns with key aspects of the applicant’s claims”.[4] The Tribunal referred to a number of matters.

   [4] CB242, [25]

2. First, the Tribunal found the applicant provided inconsistent information about the leadership roles he had held in the BNP in his village.[5]

   a)Before the delegate, the applicant indicated on two occasions that he became the BNP Chairman in his village in 1993 and that he held that role until 2006, whereas before the Tribunal the applicant said that he became the Secretary of the Jubo Dal (the youth wing of the BNP) in 2000 and did not hold any office before that point in time.[6] Pursuant to s.424AA of the Migration Act 1958 (Cth) (Act) the Tribunal put to the applicant the inconsistent information, in response to which the applicant elected to respond in writing after the hearing. The statutory declaration provided by the applicant following the hearing did not address this point.

   b)Before the Tribunal the applicant stated that the office he held with the Jubo Dal was the same as that held by many others.[7] The Tribunal considered the applicant’s evidence to be at odds with the applicant’s written statement and evidence before the delegate that he was the Chairman of the BNP and later evidence that he held a position in the Jubo Dal that was held by many others.

   [5] CB242, [26]

   [6] CB242, [26]

   [7] CB242, [27]

3. Second, the Tribunal found the applicant did not display any knowledge of the ideology, platforms, policies, or local political issues of the BNP consistent with the applicant having been an office holder for a significant period of time.[8] Before the Tribunal, the applicant stated “the BNP took care of people, that they do good, and did good works for the country and the people”, and when asked about the differences between the BNP and the Awami League, the applicant said they would “listen to a different kind of people and would work for the betterment of the people”. The Tribunal concluded the applicant’s knowledge was not such as to suggest that he was an officeholder of the party or anything more than an ordinary grass-roots member.[9]

   [8] CB242, [28]

   [9] CB243, [31]

4. Third, the Tribunal found that a number of the court documents provided by the applicant in support of his core claim, that many false criminal cases have been lodged against him, “are clearly not genuine”.[10] The Tribunal referred to the following matters:

   a)Four of the documents were purportedly issued by the “Office of the Chairman”. The applicant was not clear about who had issued the documents, even though the letter purported to state the author knew the applicant. After further questioning, the applicant said the documents were produced by the court.[11]

   b)A document “Dated 24/08/2001”[12] refers to a case in that or the following year. That, however, was inconsistent with the applicant’s evidence that the first case was lodged against him in 2003.[13]

   c)All four documents “are all in identical terms except for the case number and date”. The Tribunal found this was not plausible for genuine documents supposedly written at different times.[14]

   d)Each document referred to the applicant having been arrested, detained, tortured, and hospitalised. That was inconsistent with the applicant’s oral and written claims where the applicant claimed he was detained only on one occasion in 2003.[15]

   e)Each document asserted that because of the case lodged, the applicant fled Bangladesh. The Tribunal found this did not make sense because the documents were dated between 2001 and 2006, yet the applicant left Bangladesh in 2013.[16]

   f)There was independent evidence that forged documents are readily obtainable in Bangladesh.[17]

   [10] CB243, [32]

   [11] CB243, [33]. The documents are at CB96, CB129, CB173

   [12] CB129

   [13] CB243, [34]

   [14] CB243, [34]

   [15] CB244, [35]

   [16] CB244, [36]

   [17] CB244, [37]

5. Fourth, the Tribunal found the applicant’s failure to provide the Tribunal with documents the applicant claimed he received directly (“as opposed to by the court”) to undermine the applicant’s claims that cases were ever brought against him.[18] Those documents the applicant claimed he had received included a summons in relation to the altercation with Mr R in 2006 and several other notices.

   [18] CB244, [40]

6. Fifth, the Tribunal found the applicant gave inconsistent evidence about the timing of the newspaper report indicating he was wanted.[19] In his written statement, the applicant claimed he decided to leave his village after he saw the newspaper report; whereas before the Tribunal the applicant said the report appeared after he left his village, and that it was the transition to a caretaker government that had caused him to leave the village.

   [19] CB245, [45]

7. Sixth, the Tribunal considered the applicant’s claims of false cases, convictions, gaol sentences and fines against the applicant not to be consistent with the applicant’s evidence that his family have had no contact with authorities for many years.[20] The Tribunal also considered the explanation provided by the applicant for the lack of recent contract by authorities with his family to be inconsistent.[21] At the hearing before the Tribunal, the applicant said his wife lived with the applicant’s parents, rather than in the family home in the village so as to escape attention. That explanation differed from the applicant’s earlier evidence, namely that his wife and children lived with the applicant’s parents in another location 3 km from the village, but that the wife returned to their home in the village several days a month, and the applicant’s children both attended middle school in the applicant’s home village.[22]

   [20] CB245, [46]

   [21] CB245, [46]

   [22] CB245, [49]

8. For these reasons, the Tribunal was not satisfied “that the applicant has been a truthful witness in relation to the level of his involvement in the BNP or Jubo Dal, or in relation to legitimate or concocted cases brought against the applicant by authorities in Bangladesh, or as to a future risk of harm” from Mr R and Mr Re.[23] While the Tribunal was prepared to accept that the applicant had some involvement in the BNP or Jubo Dal, the Tribunal was not satisfied the applicant was anything other than a grass roots supporter.[24]

   [23] CB246, [53]

   [24] CB246, [54]

9. The Tribunal was not satisfied, therefore, that the applicant satisfied the criteria for the granting of a Protection visa prescribed by s.36(2)(a) and s.36(2)(aa) of the Act.

Grounds of application

1. The  application for review contains the following ground:

   I believe the AAT decision made was not made according to law, I am searching for a lawyer to represent me in court.

2. By itself, this ground discloses no jurisdictional error. At the hearing before me, however, the applicant made submissions from which I was able to identify two grounds. The first was that the Tribunal should have conducted its own investigations about the authenticity of the documents on which the applicant relied. The applicant requested that he be given a second chance. He said that if, after the investigation, it was to be concluded the documents were not genuine he would accept his being returned to Bangladesh.

3. The Tribunal was not under an obligation to investigate the authenticity of the documents on which the applicant relied. Its duty was to consider whether it was satisfied the documents were genuine. The Tribunal considered that question and, for the reasons it gave, the Tribunal was satisfied the documents were not genuine. It was reasonably open to the Tribunal not to be satisfied about the authenticity of the documents for the reasons the Tribunal gave.

4. The second ground began with a complaint stated in general terms that the Tribunal did not give the applicant an opportunity to say what he wanted to say. After some discussion, the information the applicant claimed he was not given the opportunity to say was that the Tribunal should investigate the authenticity of the documents on which he relied.

5. It may be the applicant suggested to the Tribunal that it should investigate the authenticity of the documents on which the applicant relied. There is nothing to suggest, however, that the Tribunal prevented the applicant from saying anything in support of his claim at the hearing. Even if the applicant believed the Tribunal did limit what the applicant wished to say at the hearing, the applicant was given the opportunity to make further submissions after the hearing. The applicant took advantage of that opportunity by submitting a further statutory declaration.[25] The applicant provided the statutory declaration after the Tribunal provided to the applicant’s representative (who did not appear at the hearing with the applicant) an audio recording of the hearing before the Tribunal.[26] The applicant, therefore, with the assistance of his representative, had an opportunity to hear the audio recording of the hearing and make such additional submissions as he considered appropriate.

   [25] CB230-231

   [26] CB225

Conclusion and disposition

1. The applicant has not established the Tribunal made any jurisdictional error and, for that reason, the application must be dismissed.

2. At the hearing, I invited submissions about whether I should depart from the usual order for costs. Both the applicant and Ms Buchanan, who appeared on behalf of the Minister, did not submit I should depart from the usual order for costs. I also propose to order, therefore, that the applicant pay the Minister’s costs.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Date: 26 May 2017