BAX15 v Minister for Immigration

[2015] FCCA 3084

FEDERAL CIRCUIT COURT OF AUSTRALIA

BAX15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 3084

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Protection (Class XA) visa – whether the Tribunal was correct in giving no weight to evidence before it – whether adverse findings of credit were open on the material before the Tribunal – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476

Applicant: BAX15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1632 of 2015

Judgment of: Judge Street

Hearing date: 18 November 2015

Date of Last Submission: 18 November 2015

Delivered at: Sydney

Delivered on: 18 November 2015

REPRESENTATION

Counsel for the Applicant: Mr B Zipser

Solicitors for the Respondents: Ms N Blake
Clayton Utz

ORDERS

1. The amended application is dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the amount of $6825.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1632 of 2015

BAX15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) with respect to a decision of the Tribunal made on 18 May 2015, affirming a decision of the delegate not to grant the applicant a Protection (Class XA) visa. The applicant was found to be a citizen of Bangladesh. The applicant applied for a protection visa on 16 May 2013, which was refused on 22 January 2014.

2. The applicant first entered Australia on 6 January 2010, holding a UL subclass 679 Sponsored Family Visitor visa, departing on 23 February 2010.  The applicant next arrived in Australia on 19 March 2013, holding a UL subclass 679 Sponsored Family Visitor visa.  The applicant claimed to fear harm from the Bangladesh authorities and supporters of the Bangladesh Awami League (AL), due to his political involvement in the Bangladesh Nationalist Party (BNP). 

3. The applicant gave an alleged history of his involvement with BNP prior to 2010, and post that alleged that he had become an executive member in 2011 of the Jatiyatabadi Jubo Dal, under Moulvibazar Thala branch.  The applicant alleged that on 27 June 2011, he conducted a meeting with BNP workers, and led a procession from which he was chased by AL supporters.  The applicant alleges that his cousin complained to the police, but the police took no action.

4. On 27 March 2012, the applicant alleged he attended a procession of the Moulvibazar with the BNP leaders.  The applicant said the procession was disrupted by AL supporters and the applicant was beaten by police.  The applicant contended his cousin again went to the police but not complaint was recorded.  The applicant contends on 19 June 2012, police raided his home while he was later, and he was later informed that a case had been filed against him. 

5. On 29 June 2012, the applicant alleged the police tortured him after the applicant’s wife told him to attend the police station.  The applicant contends he was forced to bribe the Bangladesh authorities and police before he could travel to Australia.  The applicant claimed that all opposition leaders and activists in Bangladesh are in jail or have been killed. 

6. The Tribunal found that the applicant was not a credible witness. 

7. Counsel for the applicant prepared written submissions in support of an amended application.  The Court granted leave for the applicant to treat the amended application, annexed to the submissions on behalf of the applicant, as being the amended application before the Court, and dispensed with the need to file a further document in that regard and marked the amended application exhibit A. 

8. The grounds of the amended application are as follows:

   1. The Tribunal found of paragraph 177 of its decision that “it gives the purported letter from the BNP no weight”. There is a jurisdictional error in this finding by the Tribunal.

   2. The Tribunal found at paragraph 180 of its decision that, because the applicant delayed lodging his protection visa application for two months after his arrival in Australia, the applicant does not have a subjective fear of persecution.  The Tribunal fell into jurisdictional error in making this finding.

   3. The Tribunal found a paragraph 175 of its decision that the applicant gave confused, contradictory and inconsistent evidence relating to his claimed positions in the Chattra Dal and BNP and the positions he held.  The applicant’s evidence concerning this issue was not confused, contradictory or inconsistent.  The Tribunal made a wrong finding of fact which, in the particular circumstances, was a jurisdictional error. 

9. In relation to ground 1, the Tribunal relevantly said:

   175. The applicant gave confused, contradictory and inconsistent evidence relating to his claimed positions in the Chattra Dal and BNP, his role and profile, the positions held, when he held them and his duties.  He gave confusing and inconsistent evidence in relation to parliamentary elections held during his claimed tenure as a Chattra Dal and/or BNP office holder. His evidence was confused and contradictory in relation to when he officially joined the BNP or its affiliated organisations, his evidence was erroneous as to who won elections at the local and national level during his claimed period of involvement and it was at odds with what he indicated in his statement.  His evidence was at variance between his application, his statement and his evidence at his Tribunal hearing.  His evidence as to his role profile and activities was vague and unpersuasive. 

   176. The Tribunal considered the applicant’s evidence relating to his claimed affiliation with the BNP.  His evidence in relation to his being attracted to the BNP was at best superficial.  When asked about elections, his evidence was that he was never in Bangladesh during an election.  His evidence was devoid of specific detailed policies which the BNP espoused that attracted him and that it advocated over many years, and his evidence was superficial at best in relation to the BNP and its goals philosophy, principles, and policies and lacked any supporting detail which an executive member of a political party would be able to relate after years of claimed political involvement.    He did not relate any specific policies which attracted him.  The Tribunal considered the applicant’s evidence as to his motivation for joining and becoming active with the BNP. The Tribunal considered the applicant’s evidence and rejects his claimed affiliation with the BNP. 

   177. As the applicant has no affiliation with the BNP, and given country information before the Tribunal indicating that fraudulent documentation from Bangladesh is readily available, it gives the purported letter from the BNP no weight.  It notes that the letter contains spelling errors and its content is inaccurate and inconsistent with the applicant’s own claims.  In relation to there being an outstanding charge against the applicant, the Tribunal gives this claim no weight, noting its finding above that the applicant is not affiliated with the BNP.

   178. The Tribunal, having found that the applicant is not affiliated with the BNP does not accept that he faced any harm in Bangladesh for reasons of political opinion.  It does not accept that the applicant became the target of AL goons, that he was beaten by police mercilessly, that police raided his home, tor that charges are outstanding against him.  The Tribunal does not accept that the police, Rapid Action Battalion (RAB), the AL or anyone or any agency or group acting at its behest has any interest in the applicant. It further notes that the applicant’s evidence in relation to claimed harm suffered at the hands of the AL and the number of claimed outstanding charges was inconsistent, contradictory and confused.   It does not accept that the applicant or his family members have faced threats in Bangladesh for reasons of the applicant being affiliated with the BNP.

   179. Further, given the country information the Tribunal finds that the applicant does not face a real chance of persecution in Bangladesh for reasons of political opinion.

   180. The Tribunal further notes that the applicant delayed lodging his protection visa for some two months after his arrival in Australia for the second time.  He delayed lodging his protection visa as he thought that the situation would improve.  Given that the applicant claimed that criminal charges were outstanding against him, the Tribunal rejects this explanation as had serious charges been outstanding against the applicant for political reasons, the Tribunal would expect the applicant to have sought protection at the earliest opportunity.  Given his claimed fear of persecution in Bangladesh, the Tribunal finds that the applicant does not have a subjective fear of persecution and his delay further seriously undermines his credibility.

   181. The Tribunal does not accept that the applicant would have been an office holder in the BNP at any level and finds that he has no affiliation with the BNP.  Given that the applicant’s evidence is that he only fears return to Bangladesh for reasons of his affiliation with the BNP the Tribunal finds that the applicant is not a person in respect of whom Australia owes protection obligations.

   182. The Tribunal finds that the applicant is not of interest to the authorities in Bangladesh and that no charges are outstanding against him nor is there a real chance that the applicant would face politically motivated fabricated criminal or other charges for reasons of political opinion. 

   183. As the applicant has no affiliation with the BNP, and given country information indicating that fraudulent documentation from Bangladesh is readily available, the Tribunal does not accept the documents submitted by the applicant at hearing to be genuine or reliable and gives them no weight.  

   184. The Tribunal finds that the applicant’s credibility is so seriously undermined that there is no credible or trustworthy evidence before it upon which to make a finding that the applicant is a Convention refugee or that he is a person in respect of whom Australia owes protection obligations. 

10. Ground 1 refers to a letter at p.42 of the Court book, purportedly dated 1 October 2013, identifying that the applicant was an executive leader of the Bangladesh Nationalist Youth Party Moulvibazar District unit before going to Australia and alleged that a case had been filed against him and that he would be persecuted if returned.

11. The Tribunal made adverse findings of credit in relation to the applicant’s evidence and the last sentence in para.176 is a finding by the Tribunal rejecting the applicant’s evidence and rejecting the proposition that he had an affiliation with BNP.  In those circumstances it was clearly open to the Tribunal to give no weight to the document dated 1 October 2013.  Ground 1 discloses no jurisdictional error.

12. In relation to ground 2, counsel for the applicant referred to the applicant’s explanation in relation to the issue of delay raised by the Tribunal with the applicant and the applicant’s suggestion that the delay was due to a belief that the situation might improve.  Relevantly, the Tribunal’s reason stated:

    56. The applicant was asked given his claimed harrowing departure he thought to apply for protection upon arrival in Australia having just managed to escape persecution in Bangladesh the applicant indicated that there was not this kind of thinking.  He delayed lodging his protection visa application from 19 March 2013 until 16 May 2013 because he thought he would go back as the situation would improve.  He was asked given the history of politics in Bangladesh he thought that the situation would improve.  He responded that he thought if his party came to power his case would be withdrawn.  He was asked what he knew about the nature of the charges outstanding in Bangladesh before leaving the country.  He responded that on 29 June 2012 the police raided his home but he was not home.

13. In the circumstances where the applicant claimed that he departed Bangladesh because a case had been filed against him and that he had alleged he had been tortured by the police and alleged he had to bribe the authorities before he could travel to Australia.  It was clearly open to the Tribunal to make the adverse finding identified in para.180.  The adverse finding in para.180 cannot be said to lack an evident and intelligible justification.  Ground 2, fails to make out any jurisdictional error.

14. In relation to ground 3, counsel for the applicant submitted that there was a consistency on the position held by the applicant and that it supported a contention that there was a wrong finding on a critical step in the conclusion of the Tribunal.  As skilfully as the submission was advanced, it is difficult to see how ground 3 could be made out in the absence of the transcript.  Further reference is made to paras.21, 35, and 62 of the Tribunal’s reasons by counsel for the applicant.  These references do not support any wrong finding.  The position held as described in those paragraphs, was not identical and there are a number of inconsistencies in the applicant’s evidence that are identified in para.67.  Indeed, counsel for the applicant properly conceded inconsistencies in relation to dates.  In my opinion, the adverse finding in para.175 was open on the material before the Tribunal.  Ground 3 fails to make out any jurisdictional error.  

15. The amended application is dismissed. 

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  25 November 2015