AWB17 v Minister for Immigration

[2017] FCCA 3069

FEDERAL CIRCUIT COURT OF AUSTRALIA

AWB17 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 3069

Catchwords:
MIGRATION – Application for judicial review – protection visa – no matters of principle – application dismissed.

Applicant: AWB17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 640 of 2017

Judgment of: Judge Riethmuller

Hearing date: 12 October 2017

Date of Last Submission: 12 October 2017

Delivered at: Melbourne

Delivered on: 12 October 2017

REPRESENTATION

The Applicant appeared In Person

Solicitors for the First Respondent: Minter Ellison

ORDERS

1. The application be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $5,600.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

SYG 640 of 2017

AWB17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Extempore)

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal (“the Tribunal”) affirming a decision of the delegate not to grant the applicant a protection visa. 

2. The applicant is a citizen of Bangladesh and he came to Australia on

   
   

   20 March 2013 and applied for a protection visa in July 2013.  The applicant made a number of claims to the delegate in his application, largely emanating from his claimed involvement in the Bangladeshi National Party (“the BNP”), both in the youth wing and in the adult wing.  The applicant said that he had been involved with the party, with politics, and had ran for an election.  Consequently the applicant had been the victim of attacks and had also, at one stage, been abducted. 

3. The applicant had a representative that made a pre-hearing submission to the Tribunal and he also appeared and gave evidence before the Tribunal.  The applicant also provided further documents after the hearing, including supporting documents and a further statement. 

4. The Tribunal made comprehensive findings against the applicant on the question of his credibility.  For example, the Tribunal concluded that he had a poor knowledge of the BNP, which was inconsistent with his claimed level of involvement in the party.  The Tribunal stated:

   27. In view of his evidence that he has been interested in the BNP since 1995 and has held two positions as an office bearer in the BNP, the Tribunal asked the applicant that he could tell the Tribunal about the policies of the BNP.  He responded that one of the philosophies of the BNP is that a party is much greater than a member and the country is greater than a party and all their activities are based on that.  He stated that they do not want divisions based on race or colour or sect.  When asked the four main principles of the BNP, he was unable to do so. When asked the colours of the flag of the BNP, he named two of the colours but was unable to name the rest.  When asked the election symbol of the BNP, he responded that he could not remember.  When asked if he had ever voted for the BNP, he answered ‘bunch of paddy’ (a correct response to the previous question).  When asked to draw the BNP flag, he stated he could not draw.

   28. The Tribunal raised as an issue with the applicant his poor knowledge of the BNP and noted that it was not consistent with his claims.  The Tribunal noted that it had doubts as to whether he was a member of the BNP.  He responded that he has provided documents in relation to being a candidate in the elections.  He stated that he was a member of the BNP.

5. The applicant was unable to name all of the colours on the BNP flag and the Tribunal did not accept his post-hearing statement that he became confused.  The Tribunal stated:

   29. Following the hearing, the Tribunal was provided with an unsigned written statement from the applicant dated 28 October 2016 in which he stated that he was confused at the hearing when questioned about the BNP flag.  He stated that his confusion may have been due to interpreting miscommunications.  During the hearing, he did not indicate that he had any difficulty understanding the questions.  He was provided with a copy of the hearing recording on 21 October 2016 but has not provided any evidence, to date, that there were any errors in the interpretation during the hearing.  He has been represented by a migration agent throughout his application.  The Tribunal does not accept this explanation.

6. The Tribunal noted inconsistencies in the applicant’s evidence about the positions that he had held in the BNP:

   30. The Tribunal raised as an issue with the applicant the inconsistencies in his evidence in relation to the positions he held in the BNP.  In his initial statement of claims lodged with his visa application, he claimed that in 2007 he became the Associate General Secretary of the youth wing of the BNP in his local area (thana).  On 9 February 2015, the Department was emailed an unsigned an undated statement from the applicant in which he made new claims.  In this statement, he claimed that he was appointed to two different positions in the BNP.  He claimed that he held two different positions in the BNP in two different wings; one at the thana level and he was then promoted to the district level.

   31. The applicant responded that he was in a leadership position in the BNP at the thana level and the district level.  He stated that there must have been an error or he forgot to mention it.  When asked whether he held any other positions in the BNP that he had not mentioned, he responded no.  Earlier in the hearing he stated that he only held two positions in the BNP; one as Assistant Secretary at thana level and the second as Assistant Secretary at district level.

   32. The applicant provided to the Tribunal a letter dated 25 April 2013 from BNP Youth Party.  It states that on 2 January 2007 the applicant was elected the General Secretary of the Tongibari sub district of the BNP.  It states that on 8 March 2010 he was elected the Vice President.  It states that on 5 May 2012 he was elected to the position of Organizing Secretary of the Munshiganj District Branch of the BNP Youth Party and that he has continued in this position until now (25 April 2013).  The applicant’s evidence is that he left Bangladesh in February 2013 and arrived in Australia on 20 March 2013.  The Tribunal put this information to the applicant and raised as issues the fact that the letter indicated that he held three different positions on the BNP, he could not have been the Organizing Secretary of the Munshiganj District Branch of the BNP Youth Party on 25 April 2013 as he had been living in Australia since 20 March 2013 and its concerns about the authenticity of this letter.

   33.  The applicant responded that if anyone goes on vacation the position stays open until the next election.  He stated that if someone steps down a new election takes place.  He stated that if someone is absent for a long period they are replaced.  He stated he does not know if he has been replaced but until the last day of his stay in Bangladesh he held that position in the BNP.  When asked to explain why his evidence had changed from him initially stating that held one position in the BNP to him holding two positions in the BNP and the letter from the BNP stating that he held three positions in the BNP.  He responded that he had mentioned that he had one position in 2007, another in 2010 and another in 2012.  When the Tribunal indicated that that was not correct, he responded that he did mention three positions but did not mention when he held these positions.  The Tribunal does not accept this explanation as it is not consistent with the evidence before it.

   34. Following the hearing, the Tribunal was provided with an unsigned written statement from the applicant dated 25 October 2016 in which he stated that he held three different positions in the BNP and the letter from the BNP is correct.  He stated that the inconsistencies in his evidence was due to him being confused as to whether he was being asked how many districts he had been involved with and not how many actual positions he held.  The Tribunal does not accept this explanation.

   35. During the hearing, the Tribunal twice verified the number of positions the applicant held in the BNP.  ON the first occasion, after he stated that he held two positions in the BNP, the Tribunal sought verification and asked him whether he held only two positions in the BNP as Assistant Secretary at the thana level and Assistant Secretary at the district level and he answered yes.  Towards the end of the hearing, when the Tribunal raised as an issue the fact that he had initially claimed in his visa application that he held one position in the BNP and subsequently made a new claim that he held two positions in the BNP, he was again asked whether he held any other positions in the BNP that he had not mentioned and he answered no.

   36. In his post hearing response dated 25 October 2016, the applicant offered no explanation as to why he stated in his written claims emailed to the Department on 9 February 2015 that he held two different positions in two difference wings of the BNP and why he subsequently changed it to three positions.  The Tribunal is of the view that the applicant changed his evidence during the course of the proceedings from holding one position in the BNP to holding two positions in the BNP to strengthen his claims in relation to his involvement in the BNP.  The Tribunal is of the view that he then changed his evidence again during the hearing to having held three positions in the BNP after he was informed that the letter from BNP stated that he held three positions in the BNP so that his evidence was consistent with the letter.

   37. The Tribunal raised as an issue with the applicant the implausibility of him being elected to the position of Organizing Secreatry of the Munshiganj District Branch of the BNP Youth Party in 2012 if he had been in hiding and on the run since 2011, as he claimed.  In his written statement dated 25 October 2016, provided to the Tribunal following the hearing, he stated that during the period when he was in hiding and moving around the country he was still actively involved in political activities and maintained contact with senior comrades and leaders who were giving him instructions on what he could do while trying to maintain a low profile.  He stated that they would tell him which meetings and processions were safe for him to attend and those that were not.  He stated that he was sincere in his political activities and always supported the party even in adverse situations.  He stated that the leaders and others in the party were impressed by this and that is why he was elected to the position of Organizing Secretary of the Munshiganj District Branch of BNP Youth Party in 2012.

   38. The Tribunal does not accept this explanation.  The Tribunal is of the view that it was highly unlikely that senior comrades and leaders would have been able to predict which meetings and processions were safe and which were not and to forewarn the applicant.  The Tribunal is also of the view that it was highly unlikely that the applicant would have participated in any public meetings and processions if his life was at risk.  Further, the Tribunal is the view that, if he obtained the letter from the BNP on 25 April 2013 he would have provided it to the Department along with the other supporting documents that he filed with the Department.  His delay in providing this document until 6 October 2015, shortly before the Tribunal hearing, raises further concerns in relation to the credibility of his claims and the authenticity of this letter.

7. The Tribunal found the applicant’s claim to have been attacked and injured in Dhaka by the Awami League implausible, given that it was said to occur in 2000 and the applicant did not become a BNP member until 2007.  There was no evidence to support the applicant’s claims, including a claim of hospitalisation.  The Tribunal concluded that the applicant gave inconsistent and incoherent evidence about this attack (see generally [39] to [43]). 

8. The Tribunal also noted some inconsistencies in the applicant’s evidence about the number of votes by which he lost, at a 2011 election.  In the hearing before me, the applicant said that he had not wanted to talk about the number of votes he lost by, but ultimately did so when pressed and argues that this was not, in fact, an inconsistency, but rather simply the effect of his initial reluctance. 

9. It seems to me that these matters are properly within the ambit of the fact-finding Tribunal to assess in order to determine whether there is a cultural or psychological reason for not disclosing evidence initially when it is later disclosed.  In this respect, the Tribunal was against the applicant on this point.

10. The Tribunal also had concerns, that they explained in some detail, with respect to documents that the applicant produced, particularly with respect to a poster where the Tribunal said:

    46. During his interview with the Department on 9 February 2015, the delegate raised as an issue with the applicant that he had not been able to find any country information to support his claim that he ran in an election in 2011.  He was requested to provide information or evidence to the Department that he ran for electing in 2011.  In response, he provided the Department with a copy of a poster which has a photograph of him, a symbol of a football and writing in what appears to be Bengali.  An English translation was not provided to the Department.  He subsequently provided to the Tribunal an English translation of the poste, a ‘Nomination Paper of Candidate’ dated 18 May 2011, an Invoice Form and copies of 18 poor quality photographs of what appears to be people holding up the poster.

    47. The Nomination Form nominates the applicant as a candidate in the election.  It is dated 18 May 2011.  The Tribunal has concerns about the authenticity of this document.  Firstly, it describes the applicant’s marital status as ‘widower’.  His evidence to the Tribunal is that he is married and was married on 20 February 2008.  Secondly, paragraph 15 of the Nomination Form requires information about his children including their names and dates of birth.  It is not consistent with his evidence in his visa application, which he told the Tribunal was accurate.  In his visa application, he stated that he has three children who were ben in 2007 (from his first marriage), 2009 and 2011.  None of them are named Rejoyan Hussain (Somrat) or born in 2010.

11. The Tribunal were also concerned that, at interview, the applicant made a claim that his house was bombed before the 2011 election, but he had not made this claim on any previous occasion: see [52] to [56]. 

12. The Tribunal went on to deal with a large number of other matters, most of which presented similar difficulties with respect to the version given by the applicant, leading to the Tribunal not accepting the applicant’s credibility and ultimately not accepting the evidence that he gave.  In its findings at [96] through to [111], the Tribunal comprehensively rejects the applicant’s claims. 

13. The Tribunal then goes on to consider whether there is, on a cumulative basis, a real chance of serious harm, even in light of rejection of individual incidents, and concludes that there is not such a basis for a protection visa.  The Tribunal also considers whether or not the consequence of removing the applicant from Australia may result in a real risk of significant harm and found against the applicant in this regard.

14. The applicant’s sole ground for judicial review is:

    I have no way to go back Bangladesh unless I die here Few peoples are waiting in Bangladesh to kill me  I do not want to die at this early age  I want to stay here at any condition provided by Australian immigration.

15. In substance, the applicant’s claim is for a merits review of the Tribunal’s decision. 

16. The applicant argued that the extent that he was asked about whether or not there was anything online relating to his election result, he says he provided an explanation to the Tribunal that it was uncommon for there to be material on the internet about that level of election.  This is really an argument about fact finding.  In any event it does not seem that this particular issue formed part of the basis for the Tribunal rejecting his claim.  To the extent that this is the particular of his ground, it seems that the Tribunal must have accepted his explanation as sufficient and not relied upon this matter against him. 

17. The applicant also said that he had forgotten to mention the attack on his home.  The Tribunal identified this and it was a matter for the Tribunal to decide what weight to place upon his failure to mention such a significant event prior to the Tribunal hearing.

18. On the material before me, there does not appear to be any ground for judicial review that is open to the applicant. 

19. I must therefore dismiss the current application. 

    [Further argument ensued]

20. In this matter, the applicant has been entirely unsuccessful.  It is appropriate there be a costs order.  The Minister seeks costs in the sum of $5,600 which is less than the scale fee.  I find this a reasonable sum.

21. Accordingly, I order the application be dismissed with costs fixed at $5,600.00.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Associate: 

Date:  22 December 2017