AYD16 v Minister for Immigration

[2017] FCCA 2666

FEDERAL CIRCUIT COURT OF AUSTRALIA

AYD16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2666

Catchwords:
MIGRATION – Application to review decision of Administrative Appeals Tribunal – whether Tribunal failed to consider aspects of the Applicant’s claims – application dismissed.  

Cases cited:

Applicant WAEE v Minister for Immigration and Multicultural and Indigenous

Affairs (2003) 236 FCR 593; [2003] FCAFC 184

CQG15 v Minister for Immigration and Border Protection (2016) 70 AAR 413; [2016] FCAFC 146
Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431; [2013] FCAFC 114

NABE v Minister for Immigration and Multicultural and Indigenous Affairs

(No 2) (2004) 144 FCR 1; [2004] FCAFC 263

SZVAP v Minister for Immigration and Border Protection (2015) 233 FCR 451; [2015] FCA 1089

Applicant: AYD16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 979 of 2016

Judgment of: Judge Barnes

Hearing date: 27 October 2017

Delivered at: Sydney

Delivered on: 27 October 2017

REPRESENTATION

Applicant: In person

Solicitors for the Respondents: Minter Ellison

ORDERS

1. The application be dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the sum of $5,600.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 979 of 2016

AYD16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application for review of a decision of the Administrative Appeals Tribunal (the Tribunal) dated 8 April 2016.  The Tribunal affirmed a decision of a delegate of the First Respondent not to grant the Applicant a protection visa. 

2. The Applicant, a citizen of Bangladesh, arrived in Australia in May 2013.  He applied for a protection visa in September 2013.  He claimed to fear harm at the hands of the Awami League because of his support for the Bangladesh Nationalist Party (the BNP). 

3. The application was refused by a delegate of the First Respondent.  The Applicant sought review by the Tribunal.  He attended a Tribunal hearing.  The only material before the Court as to what occurred in the Tribunal hearing is the material in the Courtbook and the Tribunal decision. 

4. In its reasons for decision, the Tribunal considered the Applicant’s claim that because of his support for the BNP he would suffer harm from the Awami League. 

5. The Tribunal set out matters it had taken into account in relation to the Applicant’s credibility.  First, for reasons which it detailed, the Tribunal had regard to inconsistencies between the Applicant’s written statement provided in support of his protection visa application and his oral evidence about the harm he claimed he had suffered in the past in Bangladesh, including inconsistent evidence as to whether he was attacked once or twice by Awami League supporters and whether he and his family fled his home village and hid in another village. 

6. The Tribunal recorded a lengthy discussion of such issues with the Applicant at the Tribunal hearing.  It addressed his responses, including his claim that every time he was interviewed or questioned about his claims, he “could say something different and forget things” and that he was under pressure.  The Tribunal did not accept this explanation, having regard to the significance of the claims the Applicant made to it.  The Tribunal also rejected an explanation based on an assertion that the lawyer who assisted the Applicant to prepare his written statement made a mistake and that the interpreter used by his lawyer to communicate with him was a Rohingya from Myanmar who “could not make things out properly”.  The Tribunal did not accept this explanation, given that through that same lawyer and interpreter the Applicant had been able to convey that he undertook activities for the BNP and was attacked by the Awami League for so doing.  It did not accept that omissions from his written statement of later significant claims, in particular about his family going into hiding, occurred because of some mistake or misunderstanding on the part of those who assisted him with the written statement.  

7. Nor did the Tribunal accept that the omission from the written statement of a later oral claim that the Applicant had a brother who was also involved with the BNP and attacked was explained by the fact that the statement was prepared in a short period of time or the fact that the Applicant could not mention everything in the statement.  It had regard to the nature of the Applicant’s evidence about his brother’s involvement with him in his political activities.  The Tribunal found that if those claims were true it was inconceivable that such matters would not have been mentioned in the written statement which had been prepared with sufficient time to record the Applicant’s own activities and the claimed attacks and threats from the Awami League. 

8. The Tribunal also had regard to what it regarded as an improbable account of the Applicant’s conduct while in hiding.  In particular, the Tribunal expressed concern about the improbability of the Applicant’s claim that he was hiding in a village to save his life, but nonetheless attended large party meetings, went with his cousins while they worked and remained there for a year despite being informed that people were looking for him in that village.  The Tribunal considered the Applicant’s explanations and submissions from his representative, including that the Applicant would be at risk anywhere in Bangladesh because his claimed support for the BNP would become known anywhere he went and the Awami League behaved the same all over the country.  It found that even if that was the case, it did not believe that the Applicant would choose to remain in hiding in a particular village for one year knowing that the people he feared had gone to that very place making inquiries about him. 

9. Considered cumulatively, the concerns the Tribunal had about the Applicant’s credibility led it to find that he was not a witness of truth and that the account of events on which his protection claims were based was false. 

10. The Tribunal disbelieved the Applicant’s claim that he and his brother, or any member of his family, either supported or undertook activities for the BNP.  It therefore disbelieved his evidence that he and his brother were ever attacked or harmed by the Awami League, that he and his family fled from their native village and went into hiding, or that people from the Awami League approached his parents, his uncle or neighbours about him and his brother or for money. 

11. The Tribunal addressed several other matters.  It had regard to the fact that the Applicant had said he had a report that stated that a particular individual who supported the BNP had been “martyred”.  The Applicant had claimed that this person used to undertake party activities with him and had been in hiding in the same district.  The Tribunal recorded that it told the Applicant that it was willing to accept that he had a report saying that a particular person who supported the BNP had been killed and hence that it did not ask the Applicant to produce such report.  However, while the Tribunal accepted that such a report existed, because it had found that the Applicant was not a witness of truth, it did not believe his claim that he was an associate or friend of the person said to have been killed. 

12. The Tribunal acknowledged that the Applicant had related a very basic knowledge of the BNP to the delegate and had told the Tribunal that he disliked the corruption and violence perpetrated by the Awami League.  However it was satisfied that his account of supporting and undertaking activities for the BNP was false.  The Tribunal also addressed the fact that in his interview with the delegate the Applicant had mentioned the existence of documents he described as letters from the BNP and from the clinic in which he claimed he had received treatment after being attacked.  He told the delegate he had asked his parents to obtain such documents.  The Tribunal recorded that neither document had been produced and the Applicant had made no mention of them to the Tribunal.  The Tribunal found that the fact that the Applicant claimed to the delegate that documents to corroborate his claims may exist did not persuade it that the Applicant was a witness of truth or that his claims of undertaking activities for a political party and suffering harm as a result were true. 

13. The Tribunal had regard to the submissions of the Applicant’s representative, including the submission that political parties in Bangladesh competed for supporters, that one did not need strong knowledge of the party to be actually associated with it and that a person’s circumstances had to be taken into account when considering what knowledge a decision-maker could expect that person to have.  The Tribunal acknowledged that the Applicant had displayed a basic knowledge of the BNP to the delegate, but found that this did not demonstrate that the account of events on which his protection claims were based was true.  It pointed out that its concerns about the Applicant’s credibility did not relate to his knowledge of the BNP. 

14. The Tribunal did not accept the submission that significant claims that were omitted from the written statement were omitted because of the time available to prepare that statement.  The Tribunal also found that the fact that the Applicant gave it and the delegate broadly similar accounts did not explain or excuse his failure to advance the same account in his written statement. 

15. The Tribunal addressed a submission from the Applicant’s representative that the Applicant’s account was consistent with country information about political violence in Bangladesh, that that situation had worsened following early 2014 elections and that party supporters with a low profile like the Applicant could be the victims of violence.  It acknowledged that the representative had presented country information about violence between the members and supporters of political parties in Bangladesh and the involvement of security and law enforcement officers, as well as members of organised crime groups acting on behalf of the ruling party. 

16. The Tribunal stated that it had considered this country information and the submissions based thereon, but that its concerns about the Applicant’s credibility remained and it did not believe that the Applicant was a supporter and activist for the BNP.  It also found that the advisor’s submissions about the assessment of credibility and the reasons for differing and inconsistent accounts did not overcome its concerns about the Applicant’s credibility. 

17. The Tribunal reiterated that the sole ground on which the Applicant had claimed to fear harm in Bangladesh was that the Awami League would harm him because of his support for the BNP.  For the reasons given, it found that his claims and evidence about this were all false; that there was no credible evidence before it that the Applicant and his family had suffered harm in Bangladesh; that anyone in Bangladesh sought to harm them; or as to why the Applicant left Bangladesh and why he did not wish to return.  The Tribunal accepted that the Applicant’s brother may be in Malaysia, but stated there was no credible evidence as to the reasons he left Bangladesh.  The Tribunal recorded that the Applicant said he left Bangladesh illegally, but observed that he did not claim protection on this basis.  In any event, because he was not a witness of truth, the Tribunal found there was no credible evidence about the manner in which the Applicant departed from Bangladesh.

18. For all these reasons, the Tribunal found there was not a real chance the Applicant would suffer serious harm in Bangladesh and that he did not hold a well-founded fear of persecution based on any Refugees Convention ground. 

19. For the same reasons, the Tribunal found there was not a real risk that the Applicant would suffer significant harm.  It repeated its findings that the Applicant was not a witness of truth; that the account of events on which his protection claims were based was false; and that there was no credible evidence that he had suffered harm, that anyone in Bangladesh sought to harm him, as to why he left Bangladesh or why he did not want to return.  It found that he did not meet the complementary protection criterion. 

20. For these reasons, the Tribunal affirmed the decision not to grant the Applicant a protection visa.

21. The Applicant sought review by application filed on 22 April 2016.  He did not file an amended application or any written submissions.  He was given the opportunity today to make oral submissions addressing the grounds in his application and any other concerns he had about the Tribunal decision or procedures.  In essence, the Applicant’s oral submissions were to the effect that he would face a lot of problems if he returned to Bangladesh and that he wanted to remain in Australia.  When asked about aspects of the grounds of review he explained that his concern was that the Tribunal had not believed his claims. 

22. Insofar as the Applicant cavilled with Tribunal findings, such findings were reasonably open to it on the material before it for the reasons which it gave.  He asserted that he was a person to whom Australia owed protection obligations.  In this respect the Applicant asked the Court to engage in impermissible merits review.  As I endeavoured to explain to him, it is not the role of this court to determine whether he is a refugee.  Nothing that the Applicant said in oral submissions identified any jurisdictional error on the part of the Tribunal.

23. The first ground in the application for review is that:

    The Tribunal failed to assess my harm on the basis of my support to the BNP.

    On the contrary, the Tribunal understood that this was the basis for the Applicant’s claim to fear harm in Bangladesh.  It described and considered such claim in circumstances where the claim was based on the Applicant’s claim that he was a supporter and activist for the BNP and that he had experienced certain instances of harm in the past from the Awami League and on that basis feared harm in the future.  The Tribunal considered not only the Applicant’s claim to support the BNP, but also the particular claimed instances of past harm.  Essentially, for reason of its credibility concerns (which it set out in detail), the Tribunal found that the claimed instances of past harm were fabrications and also rejected the central claim that the Applicant was a supporter of the BNP.  As indicated, the Tribunal’s findings in that respect were reasonably open to it on the material before it for the reasons which it gave.  There was a probative basis for such conclusions.  

24. I bear in mind that credibility findings are not immune from review (see CQG15 v Minister for Immigration and Border Protection (2016) 70 AAR 413; [2016] FCAFC 146), but there is nothing in the circumstances of this case to establish jurisdictional error in the manner in which the Tribunal approached its task or made findings in relation to the Applicant’s credibility.

25. Insofar as in this ground the Applicant seeks merits review in relation to the Tribunal’s rejection of his claims, as indicated, merits review is not available in this court.  Ground 1 is not made out.

26. The second ground is:

    The Tribunal failed to exercise its jurisdiction by failing to consider all aspects of my claims.

27. There is no particularisation of any claims which were not considered.  The Applicant was unable to assist with identification of any such claims.  He explained that what he meant was that he took issue with the fact that the Tribunal did not believe or accept what he said.  This is not indicative of jurisdictional error.  As indicated, the Tribunal considered the Applicant’s claims. 

28. I bear in mind the concerns expressed by the Full Court in CQG15, but there is nothing in the circumstances of this case to indicate any failure by the Tribunal to afford procedural fairness or to support a conclusion that the Tribunal made any findings without a logical or probative basis, engaged in legal unreasonableness or otherwise fell into jurisdictional error in the manner discussed by Flick J in SZVAP v Minister for Immigration and Border Protection (2015) 233 FCR 451; [2015] FCA 1089. No jurisdictional error has been established on this basis or as generally contended for in ground 2.

29. Ground 3 is more specific.  It is that the Tribunal “failed to consider my claim on the basis of my political opinion against the Awami League Party as an independent claim”. 

30. However, it is not apparent on the material before the Court that the Applicant made a claim on the basis of his political opinion against the Awami League that was independent of his claim based on support for and involvement in activities with the BNP.  Nor is the material such as to give rise squarely or clearly to such a claim in the sense considered in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263. In any event, in considering and rejecting the Applicant’s central claim, the Tribunal effectively rejected any possible factual basis for a contention that the Applicant claimed to fear harm due to his opposition to the Awami League (see Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593; [2003] FCAFC 184). This ground is not made out.

31. Finally, ground 4 is that the Tribunal “failed to assess the escalating political violence in Bangladesh since 2012”.

32. In considering this ground, it is important to consider the material that was before the Tribunal and the claims that were made about political violence.  When consideration is given to the delegate’s decision, the representative’s submissions, the Tribunal’s account of those submissions and also of the oral evidence and submissions at the hearing, it is apparent that the submissions in relation to worsening violence and the political situation in Bangladesh (in particular since the 2014 elections) and country information relevant to that issue cited in the representative’s written submissions all related, as the Tribunal understood, to violence between the members and supporters of political parties in Bangladesh, albeit including the involvement in that violence of security and law enforcement officers and members of organised criminal groups acting on behalf of the ruling party.

33. The Tribunal considered the submissions and claims in that respect and the country information.  It acknowledged that there was country information relevant to that issue, but rejected the contention that this put the Applicant at risk for the reason that it did not believe the underlying basis for his harm, which was that he was a supporter of or activist for the BNP.  In other words, the Tribunal considered the relevance of the submissions about politically motivated and interparty violence in the context of having rejected the underlying claim about the Applicant’s involvement in politics through support for and activities for the BNP, consistent with the claims made by the Applicant and in the advisor’s submission.

34. As the First Respondent submitted, the Tribunal appropriately considered the Applicant’s claims as they were made and conducted its review with a consciousness and consideration of the submissions, evidence and material advanced by him (cf Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431; [2013] FCAFC 114 at [38]). Ground 4 does not establish jurisdictional error on the part of the Tribunal.

35. As no jurisdictional error has been established on any of the bases contended for by the Applicant, the application must be dismissed.

36. The Applicant has been unsuccessful.  The Minister seeks costs.  The Applicant raised an issue as to how he would meet such costs on the basis that he had no employment.  However the Applicant’s impecuniosity is not a reason for departing from the normal principle that the unsuccessful applicant should meet the costs of the First Respondent, although it may be a matter to be taken into account by the Minister in determining when and how to seek to recover such costs.  The amount sought is reasonable and appropriate in light of the nature of this and other similar matters.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Barnes

Date: 2 November 2017