BAU16 v Minister for Immigration

[2018] FCCA 2004

FEDERAL CIRCUIT COURT OF AUSTRALIA

BAU16 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2004

Catchwords:
MIGRATION – Application for judicial review – whether the Tribunal made an error – whether the Tribunal denied the Applicant procedural fairness – no error – procedural fairness afforded – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.424AA; 424A

Cases cited:

Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30

Applicant: BAU16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 920 of 2016

Judgment of: Judge McNab

Hearing date: 13 April 2018

Date of Last Submission: 13 April 2018

Delivered at: Melbourne

Delivered on: 13 April 2018

REPRESENTATION

The Applicant in person

Counsel for the Respondent: Ms Grinberg

Solicitors for the Respondent: Clayton Utz

ORDERS

1. That the application filed on 5 May 2016 be dismissed.

2. That the Applicant pay the First Respondent’s costs fixed in the sum of $7328.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 920 of 2016

BAU16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

DELIVERED EX-TEMPORE (REVISED FROM TRANSCRIPT)

Introduction

1. By way of an application filed on 5 May 2016, the Applicant seeks judicial review of a decision of the Administrative Appeals Tribunal, (‘the Tribunal’) made on 19 April 2016. By that decision, the Tribunal affirmed a decision of the delegate of the First Respondent not to grant a protection visa to the Applicant.

2. The Applicant appeared in person before the Court, assisted by an interpreter.  The grounds of review set out in his application are:

   (1)     The decision of the Tribunal:

   (a)     is affected by an error of law; and

   (b)     denied the Applicant procedural fairness.

   (2)I have made an application for assistance through Victorian Legal Aid, and am waiting for a decision.

3. At today’s hearing, the Applicant raised a documentation issue. He produced a document which purports to be a membership form which indicated that he was a member of the Bangladesh Nationalist Party (‘BNP’).[1] He claims this is a genuine document, and that the delegate and the Tribunal were in error in finding that it was not a genuine document, or that he was not a member of the BNP.

   [1] Court Book 121.

The Applicant’s Claims

1. The background to this matter is accurately set out in the written submissions filed on behalf of the First Respondent at [5] – [11]. Those background facts are as follows (citations omitted):

2. The Applicant was born in Bangladesh and is a Bangladeshi citizen. His ethnicity is Bengali and his religion is Islam. He arrived in Australia in December 2012 by boat and without an Australian visa. On 12 April 2013 the Applicant lodged an application for a protection visa. Attached to the application was a statement made by the Applicant outlining his claims for protection, dated 20 March 2013.

3. On 22 October 2014 the delegate refused to grant the Applicant a protection visa.

4. The Applicant sought review of the delegate’s decision by the Tribunal.

5. Written submissions, dated 3 March 2016, were provided to the Tribunal by the Applicant’s former advisers.

6. The Applicant’s former advisers provided further written submissions after the Tribunal hearing, dates 29 March 2016.

7. On 19 April 2016, the Tribunal affirmed the decision under review.

8. At [19] to [21] of the Tribunal decision, the Tribunal sets out the Applicant’s claims that were made both in the visa application and to the delegate. The Tribunal refers to the delegate’s decision, which summarised the claims that the Applicant made to the delegate in an interview on 2 October 2014. I note that at [20] of the decision, the Tribunal Member stated that they listened to the interview, which took just under two and a half hours.

Claims in the Protection Visa Application

1. In the written statement attached to the application for a protection visa, the Applicant stated that he feared returning to Bangladesh for political reasons. He said that he and his family are supporters of the BNP, who were the opposition party to the Awami League (‘AL’). The Applicant stated that he was not a member of the BNP, but a supporter.  He had attended four or five meetings, and been involved in party activities, such as door-to-door campaigning.

2. He stated that he had witnessed a fight between two youth groups supporting the BNP and the AL two years earlier.  He took injured BNP supporters to the hospital. Afterwards, he was teased and scolded by the young AL supporters. Sometimes he would go and stay at his uncle’s house for two or three days to avoid them. The people in his village supporting the AL would make life difficult for the BNP supporters.

3. The Applicant stated that if he returns to Bangladesh, he feared that the young AL supporters would continue to tease and scold him. The Applicant stated that:

   The BNP supporters would sometimes come to my house and ask why I was not attending BNP meetings or rallies. They seemed curious.

4. He also claimed that the authorities cannot or will not protect him, because the authorities do what the ruling party says. The Applicant concluded his statement by indicating that he had no other claims to raise.

Claims in Interview with the Delegate

1. At the interview with the delegate, which is summarised at [21] of the Tribunal decision, the Applicant raised additional claims. He stated that he became a member of the BNP in 2007, and he had been an active supporter before then.

2. In mid-2010, he was present at a BNP rally that was attacked by supporters of the AL. Many BNP supporters were injured, and he assisted some of the wounded onto auto rickshaws and accompanied them to hospital.  In the days following the attack on the rally, at the behest of the ruling AL, the police arrested a number of BNP supporters in the district, and continued intermittent arrests over the next two years. He says that AL supporters threatened him. He left home to stay with his uncle, and the longest he stayed there was for three months.

3. The Applicant stated that he feared that he would be arbitrarily arrested, beaten, and possibly killed, by the police, or beaten and killed by AL supporters, if he returned to Bangladesh. He also stated that he could not relocate within Bangladesh, as conditions throughout the country are poor, and he has no social connections to help him resettle.

Consideration

1. The decision of the Tribunal demonstrates that the Tribunal set out the relevant law that was to be applied, summarised the Applicant’s claims and evidence and considered each of those claims after having put matters of inconsistency to the Applicant. The Tribunal reviewed the Applicant’s evidence in [19] to [22] and gave a careful and detailed account of the delegate’s decision in [22] to [27]. At [37], the Tribunal stated the following:

   I have carefully considered the Applicant’s claims. I have reflected upon his representative’s submission and I acknowledge the caution and care that needs to be exercised in reaching adverse credibility findings and that it is important to view inconsistencies with an eye that is sympathetic to the stress and difficulties that asylum seekers recounting traumatic events on multiple occasions [sic]. I have sought to adopt a liberal attitude in assessing the Applicant’s evidence. However, ultimately I have reached the conclusion that the central elements of his claim cannot be accepted as credible. 

   This is because there are major inconsistencies in the Applicant’s evidence about material issues which are central to his claims for protection and he has been unable to credibly explain these significant inconsistencies in his evidence. Further, the Applicant has been unable to plausibly explain why the police or AL supporters would be looking for him in the years before or after he left Bangladesh. 

   Also of concern: his evidence about his claimed membership of the BNP shifted over time and, in certain respects, was unsupported by the available country information. Accordingly, for all the reasons that follow, I have reached the conclusion that the Applicant has embellished his evidence about his involvement with the BNP in the hope of obtaining a favourable immigration outcome.

2. The Tribunal analysed and considered the Applicant’s claims and made findings in relation to them. In particular, the Tribunal made negative credibility findings which included reference to:

   a)inconsistent evidence regarding the fight the Applicant claimed to have witnessed;[2]

   b)contradictory, confused and unconvincing evidence about attending BNP rallies;[3]  

   c)inconsistent evidence regarding adverse attention of AL supporters;[4]

   d)inconsistent evidence regarding the police visiting the Applicant’s family home and looking for him;[5] 

   e)the implausibility of the Applicant’s claim that he was of adverse interest to the police and AL because he was present at a BNP rally five years earlier;[6]

   f)what the Tribunal considered was vague and unpersuasive evidence about why police and supporters went to the Applicant’s home;[7]

   g)the Applicant’s changing evidence about whether he was a member of the BNP;[8] 

   h)the inconsistency of his claim to be a member of the BNP with country information;[9] and

   i)the Applicant’s vague and limited evidence in relation to his involvement with the BNP.[10]

   [2] Tribunal decision [38].

   [3] Ibid [39].

   [4] Ibid [40] – [41].

   [5] Ibid [43].

   [6] Ibid [44].

   [7] Ibid [45].

   [8] Ibid [46].

   [9] Ibid [47].

   [10] Ibid [57].

3. In relation to each of those credibility issues, the Tribunal engaged with the material that had been placed before it and gave a detailed consideration of each of those matters. For instance, at [44], where the Tribunal considered whether the Applicant was of adverse interest to the police because he was present at a BNP rally in 2007, the Tribunal stated:

   I note the delegate had difficulty accepting that the AL and the police would be actively searching for him two and a half years after the attack on the rally given that he had been only one attendee amongst three or four thousand at the rally.  Before the Tribunal, the Applicant gave evidence this attack on the rally happened in 2007, five years before he left Bangladesh.  I do not accept that it is plausible that the Applicant was of adverse interest to the AL or the police at the time he left Bangladesh in 2012 because he was present at a BNP rally in 2007 where AL supporters attacked BNP supporters.

4. That is an example of the Tribunal’s approach to consideration of the material. In my view, it is not apparent that the Tribunal has failed to consider the Applicant’s claims or failed to give proper consideration to the material before it. It is not a decision which appears unreasonable in a legal sense and the Applicant’s concerns about the findings regarding the genuineness of a document amount to impermissible merits review.[11]  The Tribunal’s findings in relation to that document, at [49], are not apparently affected by any error. The Tribunal stated in relation to the document:

   I do not accept that my concerns about the Applicant’s claim to be a member of BNP can be overcome by the documents that he has submitted. As I put to the Applicant, the country information available to the Tribunal indicates that fraudulent documentation was readily available in Bangladesh. In this context, I have placed little weight on the BNP membership certificate and it does not overcome my concerns about the credibility and plausibility of the Applicant’s oral and written testimony.

   [11] Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 [68].

Procedural Fairness

1. Otherwise, the Applicant was put on notice of concerns that the Tribunal had in relation to evidence that he had given previously to the delegate and in his visa application. The Applicant was given an opportunity to respond in writing to the matters that the Tribunal put to the Applicant at the hearing and the Applicant responded, through his advisors, that he had no further information to provide to the Tribunal.  Having read the decision and the material in the court book, I can see no basis for finding that the Tribunal has failed to accord procedural fairness to the Applicant.

Conclusion

1. For the reasons given above, the application filed 5 May 2016 must be dismissed. I order that the Applicant is to pay the First Respondent’s costs fixed in the sum of $7,328.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge McNab

Associate: 

Date:  24 July 2018