FEDERAL CIRCUIT COURT OF AUSTRALIA
| AYQ16 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 1019 |
| Catchwords: MIGRATION – Migration Act 1958 (Cth) – application for a Protection visa – application for judicial review of a decision of the Administrative Decision Tribunal affirming a decision of a Delegate of the Minister for Immigration to refuse to grant a Protection visa to the applicant – Administrative Appeals Tribunal did not believe Applicant and made adverse credibility findings – no jurisdictional error established by the applicant – application for judicial review dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 476 |
| Applicant: | AYQ16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 994 of 2016 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 30 May 2018 |
| Delivered at: | Sydney |
| Delivered on: | 18 April 2019 |
REPRESENTATION
| The Applicant appeared in person. |
| Counsel for the First Respondent: | Mr J. Hutton |
| Solicitors for the First Respondent: | Australian Government Solicitor |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
The Application filed in this Court on 26 April 2016 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 994 of 2016
| AYQ16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant is a male citizen of Bangladesh aged 45 years, having been born on 10 December 1973.
By Application filed in this Court on 26 April 2016 he seeks to quash and have re-determined the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 30 March 2016 affirming the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 17 September 2014 refusing to grant to him a Protection (Class XA) (Subclass 866) visa (Protection visa).
Background
The Applicant arrived in Australia on 28 March 2013 as an unauthorised maritime arrival. An entry interview was conducted on 5 April 2013 at the Northern Immigration Detention Centre by an officer of the Minister. He made a valid application for a Protection visa on 19 June 2013.
Claims for Protection
In his Statutory Declaration declared on 10 June 2013 (Statutory Declaration) forming part of his Protection visa application he made the following claims:
a)he is from a village in the Jessore District of Bangladesh;
b)his family have always supported the Bangladesh Nationalist Party (BNP);
c)his brother Rusina (i.e. a psuedonym) was a strong supporter of the BNP and became an official member of the BNP in 2003;
d)Rusina would volunteer his time with the BNP by attending meetings, participating in rallies, recruiting new members and collecting membership money;
e)in…
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- Case
- [2019] FCCA 1019
- Decision Date
CaseChat Overview and Summary
The central legal issue before the court was whether the AAT's decision involved jurisdictional error. The applicant contended that the AAT had erred in its assessment of his claims, which formed the basis of his fear of persecution and his entitlement to a Protection visa. Specifically, the court was required to consider whether the AAT had properly considered all the evidence and applied the correct legal principles in reaching its adverse credibility findings.
Dowdy J found that the applicant had not established any jurisdictional error on the part of the AAT. The AAT's decision was based on its assessment of the applicant's credibility, and the court held that the AAT was entitled to disbelieve the applicant's account. The AAT's reasoning, as set out in its decision, demonstrated a proper consideration of the applicant's claims and the evidence presented. The court concluded that the AAT's findings were open to it on the evidence before it and did not constitute a legal error.
The application for judicial review was dismissed.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
In his Statutory Declaration declared on 10 June 2013 (Statutory Declaration) forming part of his Protection visa application he made the following claims:a)he is from a village in the Jessore District of Bangladesh;b)his family have always supported the Bangladesh Nationalist Party (BNP);c)his brother Rusina (i.e. a psuedonym) was a strong supporter of the BNP and became an official member of the BNP in 2003;d)Rusina would volunteer his time with the BNP by attending meetings, participating in rallies, recruiting new members and collecting membership money;e)in 1992 he commenced working for Rusina at his grocery store where he observed Rusina’s devotion to the BNP, which resulted in him having to manage the store in Rusina’s absence;f)in 2008 the Bangladesh Awami League (AL) came into power and from time to time members of the AL would harass and assault Rusina because of his political allegiance to the BNP;g)the AL members would regularly visit the store and demand goods and in 2009 and 2010 the AL members physically assaulted Rusina at the Shikarpur Bazaar by punching and kicking him;h)during 2012 Rusina’s business was very successful and profitable and AL members came to the store in August 2012 to demand a political donation of 50,000BDT and said that the store would have to be closed unless that donation was paid;i)both he and Rusina feared harm from the AL members and Rusina paid the 50,000BDT donation from cash held at the store and from his savings at the bank; j)another demand was made in December 2012 to pay a further 300,000BDT donation with the threat that if this donation was not paid the store would have to be closed and Rusina would “have to go away from here”;k)Rusina closed the store for a week so that he could arrange to sell a portion of his land to pay the AL the additional donation demand; l)a week later they re-opened the store and the AL members visited and asked why the store had been re-opened when the 300,000BDT donation had not been made. After realising that they could not provide the donation, both he and Rusina went into hiding at the house of Rusina’s father-in-law in Jessore City;m)when the AL members found that the store had been closed they forced their way into the store, ransacked it and destroyed the goods inside. He and Rusina did not report the incident as they knew the police would not assist BNP supporters;n)the AL members approached their family in the village and threatened them that if he and Rusina returned without the money that they would be killed;o)Rusina and other family members had told him that it was not safe for him to return home to his village and he knew that he could not relocate to another part of Bangladesh as the AL supporters are everywhere, so Rusina arranged for him to leave Bangladesh in about February 2013 with the assistance of a people smuggler;p)he fears for his safety and that he would be assaulted or killed if he returns to Bangladesh, as his family tells him that the AL members are still looking for him;q)the authorities are unwilling or unable to protect him because the AL is the ruling party; andr)he fears being mistreated and harmed based on his actual and / or imputed political opinion as well as the outstanding donation owed to the AL.