Awd19 v Minister for Immigration
[2020] FCCA 14
•20 March 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AWD19 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 14 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – applicant claiming a fear of harm in Bangladesh – applicant not believed – whether the Tribunal made material factual errors considered – no jurisdictional error. |
| Cases cited: Minister for Immigration v SZKTI [2009] HCA 30 |
| Applicant: | AWD19 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 497 of 2019 |
| Judgment of: | Judge Driver |
| Hearing date: | 19 December 2019 |
| Date of Last Submission: | 4 March 2020 |
| Delivered at: | Sydney |
| Delivered on: | 20 March 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr J R Young |
| Solicitors for the Respondents: | Mr H Gao of Australian Government Solicitor |
ORDERS
The application as amended by leave granted on 19 December 2019 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 497 of 2019
| AWD19 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 7 February 2019. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa. Background facts in this matter are conveniently set out in the Minister’s outline of submissions filed on 16 October 2019.
The applicant is a citizen of Bangladesh, who first arrived in Australia on 24 March 2015 as the holder of a visitor visa. He departed Australia on 11 April 2015, and re-entered Australia on 8 January 2016.[1] On 26 February 2016, he applied for the protection visa on the basis that he would be harmed in Bangladesh due to his political opinion. In particular, the applicant claimed that:
a)he was the publicity secretary of Jatiotabadi Chatradol, the student wing of the Bangladesh Nationalist Party (BNP). He actively campaigned for his local members in the Bangladesh National Election held in December 2008;
b)since January 2014, he has been arrested several times while protesting against the Bangladesh government. He was brutally beaten by police in 2015; and
c)there are pending charges against him in Bangladesh. He was in hiding for more than six months prior to leaving Bangladesh, and he will be killed if he returns to that country.[2]
[1] Relevant Documents (RD) 20
[2] RD 37-38
On 5 August 2016, the delegate refused the application. The delegate was not satisfied that the applicant was credible and comprehensively rejected his claims.[3]
[3] RD 85-99
On 31 August 2016, the applicant sought review of the delegate’s decision by the Tribunal.[4] In support of that application, the applicant submitted a large volume of documentary evidence, which relevantly included two further statements, and written submissions. In his statement dated 13 September 2018, the applicant claimed that he would be harmed in Bangladesh due to his political activities in Australia.[5] He appeared before the Tribunal at 3 hearings to give evidence and present arguments on 20 September, 9 October and 15 November 2018.[6]
[4] RD 100-107
[5] RD 268-269
[6] RD 308-310, 521-523, 635-637
Tribunal decision
On 7 February 2019, the Tribunal affirmed the decision under review.[7]
[7] RD 668
The Tribunal noted the applicant’s claims and the evidence before it.[8] It expressed 18 concerns about the applicant’s claims and evidence, and found that he was not a credible witness.[9] In essence, the Tribunal found that:
a)the applicant raised new claims about his arrest by the police at the Tribunal hearing, which undermined his credibility. It was implausible that the applicant did not raise these claims in his protection visa application. He also gave inconsistent evidence regarding an assault by the police in 2015;[10]
b)the applicant provided inconsistent and implausible evidence regarding pending criminal charges. First, he incorrectly answered a question in the application form. Secondly, he had lived in the same address in Dhaka and worked as the CEO for a tannery company during the period in which he claimed that he was hiding from the police. Thirdly, the period in which he claimed he was detained by the police overlapped with his first trip to Australia. Notwithstanding those charges, the applicant arrived in Australia and voluntarily returned to Bangladesh in April 2015. The Tribunal found that these inconsistencies undermined his claims and the authenticity of the charge sheets;[11]
c)the applicant’s delay in leaving Bangladesh, and his delay in applying for a protection visa, was inconsistent with his claimed fear of harm. Further, the Tribunal noted that between March 2015 and January 2016, the applicant had travelled to and from Australia, India and Singapore before finally departing Australia on 7 January 2016 and went through immigration controls at Bangladesh airports on seven occasions without being arrested. It found that this contradicted his claim that he would be killed upon his return to Bangladesh;[12]
d)the letters of support provided by the applicant were not reliable as they contradicted the applicant’s claims and oral evidence. The Tribunal referred to country information and found that the use of fraudulent documents is widespread in Bangladesh;[13]
e)the applicant provided no evidence to suggest that his political activities in Australia had attracted the attention of BNP leaders or authorities in Bangladesh such that he would be targeted for harm;[14] and
f)the newspaper articles provided by the applicant were unreliable as they were inconsistent with the applicant’s claims. Further, the applicant did not provide any hyperlink to these articles such that the Tribunal could not be satisfied that they were published. It found that even if they were, the Bangladesh authorities would not be able to identify the applicant from those articles. The letters from persons from BNP Australia were identical in terms which undermined their authenticity.[15]
[8] RD 669-672 at [1]-[21]
[9] RD 672 at [25]
[10] RD 672-673 at [26]-[30]
[11] RD 673-678 at [31]-[55]
[12] RD 678-679 at [56]-[62]
[13] RD 679-681 at [63]-[73]
[14] RD 681-683 at [74]-[85]
[15] RD 683-688 at [86]-[110]
In those circumstances, the Tribunal did not accept that the applicant had ever been harmed in Bangladesh due to his previous political activities. It accepted that he is a member of BNP Australia and participated in anti-government demonstrations in Australia. Nevertheless, it did not accept that the applicant would be of adverse interest to the Bangladesh authorities and (in considering the facts against both refugee and complementary protection criteria) found he would not be harmed in Bangladesh for those reasons.[16]
[16] RD 688-691 at [111]-[135]
The current proceedings
These proceedings began with a show cause application filed on 4 March 2019. I conducted a show cause hearing in the matter on 23 October 2019. At that time the applicant relied upon an amended application filed on 14 June 2019. I received into evidence the book of relevant documents filed on 30 April 2019 as well as the applicant’s affidavit accompanying his original show cause application. I also received as an exhibit[17] a letter dated 5 September 2018 which had been omitted from the book of relevant documents.
[17] Exhibit R1
The applicant sought an adjournment of the show cause hearing in order to provide to the Court the sound recording of the Tribunal hearing. The applicant submitted that this would show that the Tribunal had made factual errors in its decision which bore in particular upon the adverse credibility conclusion set out by the Tribunal at [45] of its reasons.[18]
[18] RD 676
I adjourned the show cause hearing until 19 December 2019.
At the resumed hearing, the applicant was represented by counsel on a direct access brief. Counsel tendered the transcript of the hearing conducted by the Tribunal over three days.[19] The transcript became exhibit A1. Counsel orally submitted that the transcript at page 18 on 20 September 2018, when compared with the transcript at page 17 on 15 November 2018 indicates that the Tribunal may have made a factual error in dealing with the applicant’s detention in Bangladesh and subsequent travel to Australia at [44] and [45]. Counsel characterised the error as a misunderstanding of the applicant’s evidence or an overlooking of critically important evidence, which goes to jurisdiction.[20]
[19] 20 September 2018, 9 October 2018 and 15 November 2018
[20] See Minister for Immigration v SZSRS [2014] FCAFC 16 and Minister for Immigration v SZKTI [2009] HCA 30
Counsel stated that this was the only ground of review now advanced and the grounds in the amended application were abandoned.
In these circumstances I dispensed with the requirement for a show cause hearing and treated the hearing on 19 December as a final hearing.
I provided the Minister and the applicant with the opportunity to provide further written submissions addressing the only ground now advanced.
The Minister filed post hearing submissions on 30 January 2020. Submissions in reply from the applicant were received on 4 March 2020.
Consideration
The applicant asserts that the Tribunal failed to consider an integer of his claim, namely, that he was previously falsely implicated and detained in Bangladesh. The basis for the applicant’s contention is that the Tribunal’s adverse finding in relation to this claim was not open to it. In support, the applicant tendered the transcripts of the Tribunal hearings conducted on 20 September, 9 October and 15 November 2018.[21]
[21] Exhibit A1
The ground, as developed by counsel for the applicant in oral submissions, has the following components:
a)the applicant claimed to have been arrested several times while protesting in Bangladesh since 2014;[22]
b)he gave oral evidence that he was granted bail after being detained by the police for three weeks in March 2015;[23]
c)however, there is evidence before the Tribunal that the applicant had only been in prison for three days instead of three weeks. First, the Bangladeshi court documents indicated the applicant was released on bail on 19 March 2015, three days after being brought before the Court on 16 March 2015.[24] Secondly, he gave evidence at the Tribunal hearing on 15 November 2018 that he had arrived in Australia within three days of being released from prison.[25]
d)in those circumstances, the Tribunal should have concluded that the applicant had only been in prison for three days, instead of three weeks. As the applicant gave evidence that he arrived in Australia within three days of being released from prison, this is consistent with him arriving in Australia on 24 March 2015
e)as the Tribunal erroneously rejected the applicant’s claim, its error was jurisdictional.
[22] RD 38
[23] RD 676 at [44]-[45]; Transcript, 20 September 2018, line 27 on page 17, lines 9-11 on page 18
[24] RD 535
[25] Transcript, 15 November 2018, lines 5-9, 38-39 on page 17
At the hearing, it was submitted on behalf of the Minister that the applicant gave clear evidence that he was detained for three weeks in March 2015.[26] As that was the only occasion where the duration of his incarceration was discussed, it was open to the Tribunal to rely on that evidence to find that if that claim were true, the applicant would still have been detained at the time when he was in Australia.
[26] Transcript, 20 September 2018, lines 9-11 on page 18
It was further submitted that the applicant’s evidence regarding him departing Bangladesh for Australia shortly after being released on bail was given in response to the Tribunal’s concern that there was a delay in him leaving Bangladesh following the grant of his visitor visa.[27] I accept that in these circumstances, the Tribunal did not misunderstand the applicant’s evidence. Nor could it be inferred from that evidence the applicant was only incarcerated for three days.
[27] Exhibit A1, 15 November 2018, lines 39-46 on page 16
Lastly, it was submitted on behalf of the Minister that even accepting the applicant’s claim that he was released on bail on 19 March 2015 and he arrived in Australia three days later, the applicant would have arrived in Australia on 22 March 2015, not 24 March 2015.
I accept those oral submissions notwithstanding the applicant’s post hearing submissions which sought to qualify the issue. More fundamentally, however, it is now apparent that the applicant’s contention must fail for the following additional reason. The documentary evidence before the Tribunal suggests that the applicant was “in Penal since 10/03/2015”, ie he was detained by Bangladeshi police on 10 March 2015.[28] He was released on bail on 19 March 2015.[29] As such, he was allegedly incarcerated for nine days before being granted bail. His oral evidence was that his incarceration lasted for three weeks. On that calculation, he would have been granted bail on 1 April 2015. This inconsistency led the Tribunal to conclude that his claim was not credible.[30] The applicant’s contention that his oral evidence of being detained for three weeks should be taken to mean three days does not overcome that inconsistency. In any event, for the reasons identified above, it was open to the Tribunal to rely on the applicant’s oral evidence to find that the claim was not credible.
[28] RD 535
[29] RD 535
[30] RD 676 at [44]-[45]
Conclusion
The applicant has failed to establish that the decision of the Tribunal is affected by any jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 20 March 2020
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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