BBV17 v Minister for Immigration

[2020] FCCA 674

FEDERAL CIRCUIT COURT OF AUSTRALIA

BBV17 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 674

Catchwords:
MIGRATION – Persecution – review of Administrative Appeals Tribunal (“Tribunal”) decision – visa – protection visa – refusal – no matter of principle.

Legislation:

Migration Act 1958 (Cth), ss.36, 424A, 424AA, 425, 474

Cases cited:

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

SZSHK v Minister for Immigration and Border Protection (2013) 138 ALD 26
SZUYK v Minister for Immigration and Border Protection (2016) 151 ALD 360

Applicant: BBV17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 750 of 2017

Judgment of: Judge Cameron

Hearing date: 11 March 2020

Date of Last Submission: 11 March 2020

Delivered at: Sydney

Delivered on: 11 March 2020

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms S. Lloyd for HWL Ebsworth

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $5,600.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 750 of 2017

BBV17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. The applicant is a citizen of Bangladesh who arrived in Australia most recently on 6 August 2014.  On 30 October 2014 he lodged an application for a protection visa with what is now the Department of Home Affairs (“Department”), alleging that he feared persecution in Bangladesh because of his political opinion.  On 5 June 2015 the applicant’s application was refused by a delegate of the first respondent (“Minister”).  The applicant then applied for a review of that departmental decision.  He was unsuccessful in his review before the second respondent (“Tribunal”) and has applied to this Court for judicial review of the Tribunal’s decision.

2. In this judicial review proceeding the Court cannot rehear the applicant’s application for a visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

3. For the reasons which follow, the application will be dismissed.

BACKGROUND FACTS

1. In its decision the Tribunal summarised the facts alleged in support of the applicant’s claim for protection.  As summarised by the Tribunal, the applicant made the following claims:

   a)the applicant had long been involved in the Bangladesh Nationalist Party (“BNP”) but his participation in the party’s activities increased in 2009 when he commenced his own business. He donated money to the party, frequently attended meetings, organised political programs and was involved in publicity and public relation programs;

   b)he was chosen as the BNP representative for a local election (“the Election”).  Throughout the Election his followers and BNP activists were stalked, harassed and attacked by his political opponents and some of his workers were beaten on the day of the Election.  He claimed his opponents falsified the election results which caused him to lose the Election, and afterwards, began to threaten his family;

   c)his political opponents implicated him in a local murder even though he had been in Dhaka for business at the time the crime occurred;

   d)he would be harassed and attacked by members of the Awami League and he left Bangladesh to escape death threats from this group;

   e)“they” continued to search for him and should he go back to Bangladesh they might commence extra-judicial murder proceedings against him there might be charges pending.  He feared that he might receive an indefinite gaol sentence;

   f)his political opponents were “backed” and “supported” by the government and are involved in illegal activities in the local area.  They perceived him to be a threat because he opposed such activities.  He claimed they wanted to destroy him because he was an “exemplary figure” who provided donations to the BNP and threatened their plans during the Election; and

   g)the Bangladeshi authorities would not be able to protect him because law enforcement agencies followed the orders of the Awami League which was then in power.

2. The following additional claims were made at the applicant’s departmental interview on 2 June 2015:

   a)during the election campaign he was attacked;

   b)another BNP member won the Election;

   c)six or seven months after the Election he was sent threats by an identified member of the Awami League; and

   d)after his first visit to Australia he returned to Bangladesh and false proceedings were filed against him there.

3. The following additional claims were made to the Tribunal in the form of a statutory declaration dated 16 September 2016:

   a)the year following the Election, Awami League activists killed a BNP leader at a protest in the applicant’s home town.  At the time the applicant was in Dhaka on business.  However, police wanted to arrest him as a murder suspect and his home was raided;

   b)he escaped to Malaysia for two weeks after his mother told him that Awami League supporters with weapons had visited his house and were tracking his whereabouts to kill or kidnap him.  He feared that if he went back to his home town the police would arrest him or the Awami League supporters would harass him, so he returned to Dhaka;

   c)he wanted to return to his home town because he had business investments there, however, on multiple occasions his mother asked him not to because of the political situation.  He fled to Malaysia a second time and acquired an Australian visitor visa.  He returned to Dhaka to monitor his home town’s political situation but his mother notified him that it had deteriorated further and that BNP supporters were being beaten by Awami League supporters and arrested by the police;

   d)he arrived in Australia on 1 January 2014 and remained for just under three months anticipating that in this time his home town’s political situation would have stabilised.  However, upon returning to Dhaka he found it had not and that many BNP leaders had fled, been arrested or were in hiding;

   e)he spent two weeks in Saudi Arabia and then returned to Dhaka where he went into hiding.  His sources told him that the police and Awami League supporters had found out where he was and so, frightened, he left for Australia on 6 August 2014;

   f)as he still anticipated the political situation would stabilise he did not immediately apply for a protection visa.  However, after sixty days it had not and he feared being killed by Awami League supporters or the police if he returned; and

   g)he claimed that almost 60,000 BNP leaders or activists have been detained, others faced false criminal charges and some have been killed or kidnapped.  Police are looking for BNP supporters at Dhaka airport. Despite his family being in Bangladesh he fears returning because he might be killed or detained for being a BNP leader.

4. The applicant provided numerous documents in support of his protection claims.

The Tribunal’s decision and reasons

1. After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”) or s.36(2)(aa) of the Act. The Tribunal’s decision was based on the following findings and reasons.

2. The Tribunal was concerned about the credibility of the applicant’s claims and found his evidence “vague, evasive, implausible, contradictory or unconvincing”.  The applicant’s account was neither consistent nor coherent and he made new claims at the Tribunal hearing.

3. The Tribunal summarised the various inconsistencies and concerns that it had had regarding the applicant’s claims and evidence, including the following:

   a)there were inconsistencies concerning how long he had been a BNP member and how frequently he had attended meetings;

   b)the applicant had limited knowledge about the BNP and the Tribunal thought that the topics he claimed had been discussed at party meetings were implausible;

   c)the Tribunal had concerns about the authenticity of the documents the applicant had provided in support of his claims and found some of the dates on those documents to be implausible;

   d)the applicant gave inconsistent evidence about whether the Election was won by a BNP member or by an Awami League member and the Tribunal thought it implausible that Awami League members would continue to threaten the applicant after he had lost the Election;

   e)his written claims did not mention that he had been “assaulted” or “threatened” on the day of the Election which was inconsistent with his evidence at the Tribunal hearing;

   f)he made a new claim at the Tribunal hearing that there had been a threat on his life and business in December 2012, but was evasive about the details;

   g)in the applicant’s statutory declaration he claimed that a BNP supporter was killed after the Election but during the hearing he said that it had been an Awami League supporter;

   h)the Tribunal thought his claims about being falsely charged with murder were implausible and contained inconsistencies; and

   i)his visa application claimed that he travelled to Malaysia in 2013 for business purposes and to Saudi Arabia for a pilgrimage whereas his later statutory declaration claimed that he had “escaped” to those countries.

4. A man who was purportedly the applicant’s distant relative and a woman who had been assisting the applicant since he arrived in Australia provided evidence at the Tribunal hearing in support of the applicant’s claims.  The Tribunal found that they were not independent witnesses and that their evidence was not based on first-hand knowledge.  The first witness’s evidence lacked details and was vague and the Tribunal gave it little weight.  The second witness’s evidence was inconsistent with the applicant’s evidence and her motive was to help him remain in Australia.

5. The Tribunal found that the applicant was a business owner who supported the BNP party and it also accepted (albeit with reservation) that he had been an unsuccessful candidate in the Election.  It accepted that supporters of the opposition had threatened some of his supporters in the lead-up to the Election and that some were also assaulted on the day of the Election but not that he was threatened.

6. However, the Tribunal found that the applicant was not a truthful witness and had embellished and fabricated claims to support his protection visa application.  The Tribunal was also not satisfied that the documents the applicant provided were authentic.

7. The Tribunal did not accept that after the Election the applicant had experienced threats of harm, attempted murder, an attack on his business or any other problems from Awami League supporters and members and Bangladeshi authorities.  Nor did the Tribunal accept any other consequential claims, including that he had been charged with murder.

8. The Tribunal did not accept that the applicant’s family had been threatened by Awami League supporters when they went to his house searching for him or that his family was in hiding.

9. The Tribunal accepted that the applicant had travelled for business to Malaysia on two occasions and to Singapore on one occasion in 2013 and that in early 2014 he had made a pilgrimage to Saudi Arabia.  The Tribunal did not accept that the reason for his visits to Australia in January and August 2014 was to escape harm.

10. The Tribunal did not accept that Awami League members and supporters would detain, harm or kill the applicant or that the police would arrest, detain, harm or kill him if he went back to Bangladesh.  It was not satisfied that he was at risk of serious or significant harm from Awami League members or supporters or the Bangladeshi authorities.

11. The Tribunal was not satisfied that there was a real chance that the applicant would face serious or significant harm in Bangladesh.

THE PROCEEDING IN THIS COURT

1. In the application commencing the proceeding the applicant alleged:

   1.The Administrative Appeals Tribunal has failed to apply the correct test pursuant to Section 36(2)(aa) of the Migration Act 1958

   Particulars:

   In dealing with the Applicant’s claims under Section 36(2)(aa) of the Migration Act 1958 (Cth) the Administrative Appeals Tribunal explicitly failed to disaggregate the statutory formulae under section 36(2)(a) of the Act

   2.The Administrative Appeals Tribunal denied the Applicant’s procedural fairness. 

CONSIDERATION

Ground 1

1. The burden of the first ground of the application was that the Tribunal was not permitted when reaching a conclusion on the complementary protection elements of the applicant’s claim to rely on the findings that it had made in the context of his Convention-related claims. 

2. That is not necessarily so.  If the findings of fact made in relation to an applicant’s claim to fear persecution have relevance to his or her claims for complementary protection, the Tribunal is free to apply those findings to both issues.  For instance, it was said by the Full Court of the Federal Court in SZSHK v Minister for Immigration and Border Protection (2013) 138 ALD 26:

   We can understand that a claim under the Refugees Convention may fail because, on the facts, harm was suffered but not for a Refugees Convention reason. However, where there is a finding that no harm as claimed was suffered, that finding is relevant to a complementary protection claim, that is, to whether the minister has substantial grounds for believing there is a real risk of significant harm for the purposes of s 36(2)(aa) of the Act. (at page 34, [32])

   A similar decision was reached by Farrell J in SZUYK v Minister for Immigration and Border Protection (2016) 151 ALD 360 at 370 [36].

3. As the Minister submitted in addresses in this proceeding, the point is made all the more clearly in circumstances where the decision turns on credibility findings.  If an applicant’s claim to fear persecution is rejected because his claims are not credible, it logically follows that the rejection of those claims will be relevant to the Tribunal’s consideration of related complimentary protection issues.

Ground 2

1. The allegation that the Tribunal denied the applicant procedural fairness was unparticularised and so lacks meaningful substance. For the purposes of Tribunal hearings, the natural justice hearing rule is codified in the relevant part of the Act, and it is to the provisions in that part that reference must be had when alleging a denial of procedural fairness in a proceeding such as this one. No such reference having been made, the allegation should fail, but in any event, it is not apparent that the Tribunal had any s.424A(1) obligations to the applicant that were not addressed by the s.424AA notification referred to at paras.53, 54, 55 and 56 of the Tribunal’s decision record.

2. Nor is it apparent that there was any breach of the Tribunal’s obligations under s.425(1) of the Act requiring the applicant to be aware of the issues which would be determinative of his review. For these reasons, the second ground of the application is not made out.

Ground 3

1. At the hearing of this application, the applicant alleged that the Tribunal had failed to consider documents.  The applicant did not identify any particular document which the Tribunal did not consider. 

2. It might be noted that in para.12, the Tribunal referred to a number of documents provided by the applicant.  These were discussed by the Tribunal.  In para.23 of its reasons the Tribunal discussed a letter from the applicant’s local branch of the BNP dated 26 April 2015.  Later in that paragraph, it also referred to a membership list which the applicant provided.  In para.25, the Tribunal referred to an election poster, which the applicant provided at some point, going on to consider that it did not ring true because of the date that it bore.  In para.26, the Tribunal referred to English translations of two documents, one being “particulars of vote count of contesting candidate in the post of member of general seat [of the local council]” and “result sheet of general member post [council] election” and a partially translated nomination form.  The Tribunal expressed its concern about the authenticity of those documents.  At para.33 referred to and discussed the first information report and attached complaint, both being dated 10 December 2013.  The Tribunal went on to discuss those documents in subsequent paragraphs.  In para.44, the Tribunal discussed a blank letterhead from the applicant’s business which he had provided to the Department.  In para.48, it discussed the applicant’s Bangladeshi passport and the stamps which it bore, indicating overseas travel on five occasions between September 2013 and March 2014.  In para.58, the Tribunal talked about another document from the BNP which the applicant had provided to the Tribunal. 

3. The Tribunal went on to find at para.65:

   65.The Tribunal has considered all the supporting documents provided by the applicant to the Department and the Tribunal.  The Tribunal has had regard to the Tribunal’s Guidelines on the Assessment of Credibility when assessing the applicant’s credibility. …

4. In circumstances where the applicant has not identified what particular document was not considered and in light of the thoroughness of the Tribunal’s reasoning, I am not persuaded that the Tribunal overlooked any material documentary information.

Ground 4

1. In his address to the Court, the applicant argued that the Tribunal should have investigated more.  Although its processes are inquisitorial in nature rather than adversarial, the Tribunal does not have an investigative function.  Its duty is to make a decision on the information supplied to it by the Secretary of the Minister’s Department and by the applicant.  It has power to make enquiries but is only required to make enquiries in very limited circumstances and it is not apparent that such circumstances obtained in this case.  The Tribunal did not err by not making enquiries.

Ground 5

1. The remaining matters raised by the applicant of the hearing of this application concerned the merits of his visa application and whether he would face persecution were he to return to Bangladesh.  As explained to the applicant at the hearing and as noted earlier in these reasons, the Court’s role is to determine whether the Tribunal’s decision is affected by jurisdictional error, not whether the applicant met the criteria for the grant of a visa.  It has no power to engage with the merits of an applicant’s visa application.  For that reason, those allegations do not provide a basis upon which the Tribunal’s decision ought to be set aside.

CONCLUSION

1. Jurisdictional error on the part of the Tribunal has not been demonstrated. 

2. Consequently, the application will be dismissed.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Associate: 

Date:  24 March 2020