BFL16 v Minister for Immigration

[2018] FCCA 333

FEDERAL CIRCUIT COURT OF AUSTRALIA

BFL16 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 333

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

Cases cited:

CQG15 v Minister for Immigration and Border Protection (2016) 70 AAR 413; [2016] FCAFC 146
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6

Applicant: BFL16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1275 of 2016

Judgment of: Judge Barnes

Hearing date: 7 February 2018

Delivered at: Sydney

Delivered on: 7 February 2018

REPRESENTATION

Applicant: In person

Solicitors for the Respondents: Mills Oakley

ORDERS

1. The Applicant be granted leave to amend his application orally to seek an order quashing the Tribunal decision and a writ of mandamus directed to the Tribunal.

2. The application be dismissed.

3. The Applicant pay the costs of the First Respondent fixed in the sum of $5,200.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1275 of 2016

BFL16

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 28 April 2016 affirming a decision of a delegate of the First Respondent not to grant the Applicant a protection visa.

2. I note as a preliminary point that, as the First Respondent pointed out, the Applicant had not sought any orders in relation to the Tribunal in his application for review.  As suggested by the First Respondent, I gave the Applicant leave today to remedy this deficiency by an oral amendment to his application.  He now seeks orders that the decision of the Tribunal be quashed and a writ of mandamus directed to the Tribunal be issued.  No issue is now taken by the First Respondent in relation to the jurisdiction of the court or the validity of the application. 

3. The background to these proceedings is that the Applicant, a citizen of Bangladesh, arrived in Australia in June 2013.  He applied for protection in June 2014.  His application was accompanied by a written statement of claims.  He claimed to fear harm from the authorities in Bangladesh and Awami League (AL) “thugs” and “hooligans” on the basis of his claimed political opinion and political activities with the Bangladesh Nationalist Party (BNP).

4. The Applicant claimed that he was an activist in Bangladesh who was “actively involved” in the activities of the BNP, in particular in activities against the AL and that, as a result, he became a target.  He claimed that he had suffered physical and mental harm as a result of his political connections with the BNP and that his daily life was affected.  He claimed he had to change his employment to avoid harm.  He claimed that his life was at risk, that he feared harm in the future and that he had done so when he left Bangladesh in 2013.

5. The Applicant claimed he joined the Jatiyatabadi Chattra Dal, the student wing of the BNP, in August 2001 and participated in their activities and meetings, campaigned to students at his school (a “Degree College”) and undertook responsibilities such as distributing leaflets and hanging posters.  He claimed that “[e]ventually” he became a member of the executive committee of the Jatiyatabadi Chattra Dal branch at his college.  He claimed he worked among people in his area to increase awareness of BNP politics.

6. He completed his H.S.C. in 2002 and claimed he continued his political activities at a new college, including being the publication secretary of the Chattra Dal branch in this college and participating in activities against the AL and in student politics.

7. He claimed that he was known to all in his area for his long involvement in BNP politics, although there was a time when he was away from politics for the safety of his life and career.  He referred to various employment positions that he held from December 2011 onwards.  He claimed that he was forced to change jobs a number of times because of conflicts with AL activists.

8. The Applicant claimed he was encouraged by his “peer political activists” to join the Jatiyatabadi Jubo Dal and participated in a particular branch “in August 2010” and became a local leader.  He claimed that as a local leader he promoted the agenda of the BNP and participated in other activities against the AL, in particular from 2012 on when he helped to organise meetings and demonstrations, distributed leaflets and encouraged participation in movements against the then AL government.  He claimed that this created enmity with AL activists, that he was warned and verbally and physically assaulted.  He identified four specific incidents of harm when he said that he was attacked, including claiming that he was severely injured and hospitalised.  He claimed that he followed instructions of the party in relation to acting against the AL during this period.  The last of these claimed incidents was said to have occurred in January 2013, after which he was hospitalised.

9. The Applicant made submissions about discrimination against and harm to BNP leaders and workers generally in the context of claiming to be a target of the authorities and AL activists.  He claimed that his life was at risk and that his family members were living in fear.  He claimed that he had continued his relationship with the BNP since coming to Australia and that he had originally planned to go back to Bangladesh, but that he had come to know that Awami thugs were looking for him and the political situation was against him.  He claimed he had been warned not to return.

10. The Applicant was invited to and attended an interview with the delegate.  On 9 December 2014, the delegate refused the application.  In the reasons, the delegate referred to the Applicant’s written claims and his clarification at interview that he feared being killed or subjected to physical harm and mistreatment by AL supporters on account of his membership of and support for the BNP.  The delegate found that the Applicant was not a credible witness and was not satisfied that he was a BNP supporter, and also found that even if he was, the Applicant’s profile was not such as to attract the claimed level of persecution.

11. The Applicant sought review by the Tribunal.  He was invited to and attended a Tribunal hearing.  The only evidence before the court of what occurred in the hearing is the Tribunal’s account in its reasons for decision.

12. The Applicant provided a written submission dated 15 April 2016 to the Tribunal addressing his reasons for leaving Bangladesh and why he came to Australia.  In that submission he also stated that in January 2010, the BNP had nominated him as a member of the “Jatiotabadi Jubodal Bakolia Thana Chittagong”.  In support of this claim he referred to “Annexure A” to his submission.  Annexure A is a document on Bengali letterhead that is dated “10.02.2015” and is in part in English.  It certifies that the Applicant was a member of that organisation from January 2010, although the word “January” has been crossed out by hand and replaced with the word “August”.  The letter also states that the Applicant “was an honest and active member of party before he left Bangladesh.  I wish him a bright future”.  The letter appears to bear a signature and Bengali printing.

13. The Applicant also provided to the Tribunal a copy of an English language hospital discharge certificate (“Annexure B”) which referred to admission of the Applicant between 23 January and 26 January 2013 and diagnosis of a head and other injury and a statutory declaration attesting to the truth of his claims and stating that if further documentation was required, he would be able to provide those papers. 

14. In its decision of 28 April 2016, the Tribunal summarised the Applicant’s claims that he was in danger from supporters of the AL, that he had suffered physical and mental harm because of his political involvement with the BNP, that he was assaulted, harassed, threatened and forced to quit various jobs because of pressure from AL activists and that if he returned to Bangladesh he would be persecuted because of his involvement with the BNP. 

15. The Tribunal set out the relevant law and then considered the Applicant’s claims and evidence.  It summarised the Applicant’s claims made in support of his protection visa application, including referring to the interview with the delegate in which he reiterated his claims.  The Tribunal also referred to the documents provided by the Applicant in support of the review application.  It summarised his statutory declaration and submissions which were said to reiterate, with minor variations, his written claims and to provide comments on why he travelled to Australia and the timing of his departure and his application for protection. 

16. The Tribunal also referred (at [31]) to a letter on letterhead in Bengali “apparently from the BNP youth wing” which the Tribunal referred to as dated “10 October 2015” with an illegible signature.  The only letter in the Courtbook which is of this nature is Annexure A to the Applicant’s submissions of 15 April 2016.  As indicated, it is dated “10.02.2015”.  It is possible that this may be intended to be a date in October 2015 (rather than February) if the American approach to dates is taken.  In any event there is no evidence or suggestion that there is any other letter from the BNP and it is apparent that this is the letter referred to in the Tribunal’s reasons for decision.  It is discussed further below. 

17. The Tribunal also referred to the Applicant’s evidence at the Tribunal hearing.  It recounted aspects of the Applicant’s claims and the fact that it had raised with him its doubts about whether he was ever a BNP activist or motivated to be active in support of the BNP on return to Bangladesh.  The Tribunal also recorded that it had put to the Applicant that he was claiming only that he would be harmed by supporters of the AL if he returned to Bangladesh because of his support for the BNP and that he confirmed that there were no other reasons he was afraid of returning.

18. The Tribunal then assessed the Applicant’s claims and evidence.  For detailed reasons, the Tribunal did not accept that the Applicant was a credible witness.  It did not accept that he was ever actively involved with the BNP as claimed, that he was ever a member or supporter as claimed, or that he left Bangladesh in 2013 because he had been targeted by members of the AL because of his involvement in the BNP.

19. The Tribunal summarised its concerns (before addressing them in detail) as concerns that the Applicant’s evidence about his involvement in political activism was vague and in some respects lacked the same detail as his written claims; that it did not find persuasive his evidence about his involvement in political activism; and that his evidence about BNP’s performance in his local area in the 2008 national elections was confused and contradictory.  It found “troubling” inconsistencies between the Applicant’s written claims and his oral evidence.  It was also concerned about the timing of his departure from Bangladesh and his failure to “reasonably account” for his delay of almost a year in applying for protection after coming to Australia.

20. The Tribunal preceded its detailed comments by acknowledging that independent country information indicated that the political environment in Bangladesh was volatile and often violent.  It acknowledged the existence of active student wings of the BNP and the AL whose members were often implicated in violent attacks and clashes, but also found that there was evidence that supporters or members were not at risk of being arrested or living in fear of violence on a day to day basis.

21. The Tribunal recorded that it had put to the Applicant that it was not clear from his evidence why AL supporters would want to target him “in such an aggressive and sustained manner”.  It described his response about the nature of his claimed attempts to get people involved in protests and his claim that no one was safe.  The Tribunal acknowledged that BNP leaders and activists operated in a fraught and often dangerous environment, but considered that the Applicant’s claims (that he was active in support of the BNP, including by attending or organising people to join processions or meetings or as a position holder or media spokesperson for student groups) lacked credibility.

22. The Tribunal addressed, in some detail, its concerns about the Applicant’s “confused and contradictory” evidence about the constituency in which he voted and the successful candidate in the 2008 national elections.  I will return to this aspect of the reasons in considering the concerns raised by the Applicant in oral submissions.  The Tribunal expressed concern about the way the Applicant’s evidence had changed multiple times in the hearing.  It had difficulty accepting that if the Applicant was actively involved in the BNP as claimed, his evidence about where he voted and which candidate was successful in his area would be “so confused”.  It did not accept that he had provided an adequate explanation for his confused and contradictory evidence in this respect.  It found that his “confused and unconvincing” evidence cast doubt on his claim to be a politically active person who voted for and supported the BNP in the 2008 national elections.  The Tribunal also found that the way the Applicant’s oral evidence had changed in response to the Tribunal’s concerns suggested that he was prepared to shift his evidence in response to such concerns.  This was said to raise questions about his reliability as a witness.

23. The Tribunal did not find that the Applicant’s evidence about his involvement in the BNP was otherwise persuasive.  While it accepted he had provided accurate information about some aspects of the BNP, it found that overall his evidence “about his involvement” with the BNP lacked persuasive detail, including that he was unable to persuasively explain what it meant in practice to be an executive member, as he claimed to be, and what he actually did to support the BNP.  Insofar as his evidence related to activities at the time of the 2008 national elections, the Tribunal referred to his confused and contradictory evidence and lack of knowledge about how many seats the BNP won in those elections. 

24. The Tribunal was also concerned that aspects of the Applicant’s oral evidence were inconsistent with and lacked the detail of his written claims, including in relation to how many times he required medical treatment and the circumstances in which he claimed he was attacked by AL supporters.  It found that the Applicant’s evidence about problems he had at work because of his claimed involvement in the BNP had shifted over the course of the hearing, in ways it described, including as to whether he had given up jobs for political reasons or for other reasons.

25. The Tribunal found that the Applicant’s one month delay in leaving Bangladesh after obtaining an Australian visa and inconsistencies in his explanation cast doubt on his claims that he fled to avoid persecution and that his evidence about being mentally upset and not having the courage to buy tickets was not a plausible explanation for his delay in leaving Bangladesh.  It also found that his claim that the delay was in some way attributable to the fact that AL supporters wanted to stop him leaving Bangladesh was “improbable and unconvincing” and had regard to an inconsistency between his written and oral evidence in this respect.

26. The Tribunal was of the view that the Applicant was a person who was “willing to embroider and change his evidence in an attempt to respond to the Tribunal’s concerns”.  It detailed some other changes in the Applicant’s oral evidence and how they came about during the course of the hearing, including in relation to where he was living in Bangladesh and his claims that AL supporters had visited his family home looking for him. 

27. The Tribunal acknowledged that in his written statement the Applicant had claimed that his family was living in fear, but found on the evidence before it that it was not satisfied that this was the case.  The Tribunal recorded that it had given the Applicant the opportunity to provide any new information at the hearing.  It had regard to the Applicant’s changing oral evidence as to whether his brother had been tortured or threatened and his concession that his family were not facing much difficulty, but were said to be threatened because of his involvement in politics.  Having regard to all the Tribunal’s concerns about the credibility of the Applicant’s claims, on the evidence before it the Tribunal was not persuaded that his family members were ever threatened as claimed.

28. The Tribunal also had regard to the one year delay in the Applicant seeking protection and differences in his written and oral explanations.  It did not accept any of his explanations for such delay.  I will return to this part of the reasons in considering the issues raised by the Applicant in oral submissions.

29. The Tribunal considered the documentation provided by the Applicant.  It did not accept that his case was assisted by the documentation.  It recorded that it had asked the Applicant why he had not provided the letter concerning his involvement with the BNP and the hospital discharge certificate to the Department.  The hospital discharge certificate pre-dated the delegate’s decision.  It appears, reading the Tribunal reasons fairly and as a whole (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6), that its concern was also the Applicant’s failure to provide any letter from the BNP to the Department rather than the 2015 letter, which post-dates the delegate’s 2014 decision.

30. The Tribunal considered the Applicant’s explanation that he had tried to communicate with BNP leaders, but was unable to do so when he came to Australia (on the basis many were in jail or in hiding and the office was locked because of pressure from the AL) and his claim that by October 2015 (said to be the date of the letter) the situation had not improved, but that he had been able to communicate with a person who had been released from jail.  The Tribunal put to the Applicant that it could not see the name of the person who signed the letter and that the interpreter had said that there was no name on the letter, only a reference to a BNP president.  The Tribunal also referred to the Applicant’s claim that when he went to hospital on 23 January 2013, he had a CT scan and x-rays but no broken bones.  While it found that this was consistent with the hospital discharge form, the Tribunal was of the view that even if it were to be accepted that he was in hospital, it was not clear from the discharge certificate why he was in hospital.

31. The Tribunal found that the documentation provided did not overcome its significant concerns about the credibility of the Applicant’s claims.  It had regard to the fact that, as it had put to the Applicant, there was country information about the ease of obtaining fraudulent documentation in Bangladesh.  While the Applicant maintained the documents were genuine, having regard to the country information and the timing of the production of the documents, the Tribunal gave them little weight and reiterated that they did not overcome its significant concerns about the Applicant’s credibility.

32. The Tribunal summarised its conclusions rejecting the Applicant’s claims to be a supporter of or involved in the BNP or to have experienced past harm for this reason.  It did not accept he would be motivated to be active in support of the BNP now or in the reasonably foreseeable future.

1. On the evidence before it and having regard to its assessment of the Applicant’s credibility, the Tribunal concluded that it did not accept that the Applicant was of any adverse interest to members of the AL, the authorities or anyone else because of his political involvement in the BNP.  Because it did not accept he was a BNP activist, it did not accept the claims that were said to flow from this, including that he was ever forced to resign from any job for this reason or ever harmed or threatened or moved house to avoid threats as claimed.  The Tribunal did accept that it was possible that the Applicant may have been hospitalised on 23 January 2013, but on the evidence before it was not prepared to accept that this was because he was attacked and assaulted by AL supporters or that the other claimed assaults by AL supporters had occurred.

2. Further, because it did not accept that the Applicant had ever attracted the adverse attention of AL supporters, the Tribunal did not accept that they had ever visited his home looking for him; that his family had been harassed or threatened; that his brother had been targeted or mistreated because of the Applicant’s claimed involvement with the BNP; or that his family had been monitored or threatened.  The Tribunal accepted that it was possible that the Applicant’s brother may have had an encounter with the police, but did not accept that was in any way linked to the Applicant’s claimed political profile.  It did not accept that the Applicant was ever a BNP activist of any type or targeted by the AL as claimed.

3. The Tribunal concluded on this basis that there was no real chance the Applicant would face serious harm for the reasons claimed.  It did not accept that he met the Refugees Convention criterion on the basis of his political opinion, actual or imputed, or for any other Convention reason.  For the same reasons, on the basis of its findings, the Tribunal found that the Applicant did not meet the complementary protection criterion.  The Tribunal affirmed the delegate’s decision.

4. The Applicant sought review by application filed in this court on 23 May 2016.  He did not file any evidence in support, other than an affidavit attaching the Tribunal decision.  He did not file written submissions, but was given the opportunity today to make oral submissions, not only in relation to the ground in his application, but also as to any other concerns he had with the Tribunal decision or procedures.

5. The only ground in the application is a generally expressed contention that the Tribunal “failed to exercise its jurisdiction to consider all aspects of [the Applicant’s] claims”.

6. I asked the Applicant to identify the claims he said that the Tribunal did not consider.  The only concern he raised in response was not a concern that the Tribunal overlooked or failed to consider any aspect of his claims, but rather a concern with the Tribunal’s failure to accept his explanation for having forgotten the constituency in which he voted in the 2008 national elections.  He told the court that he was “human” and had forgotten.

7. The Tribunal was concerned about various aspects of the Applicant’s evidence about the 2008 elections, including his inability to recall the successful 2008 candidate in his constituency, notwithstanding his claims to be actively involved in the BNP.  It is clear that in its reasons for decision (at [79]-[83]), the Tribunal considered the Applicant’s claims of involvement as an activist in the BNP, including in relation to the 2008 national elections.  The only evidence of what occurred in the Tribunal hearing is the Tribunal’s account in its reasons.  It recorded (at [80] and [82]) its concerns about the fact that, despite telling the Tribunal that he voted for the BNP in those elections, the Applicant’s evidence about the constituency he voted in and the successful candidate was confused and contradictory.  The Tribunal also expressed concern that the Applicant had changed his oral evidence in an attempt to respond to its concerns at the hearing. 

8. The Tribunal recorded that the Applicant initially claimed he voted in one particular constituency, but when asked if he remembered the name of the BNP candidate that he had voted for, he then said he had voted in a different constituency.  He explained this on the basis that his union council used to be included in the first constituency he named, but was then added to the second one.  When asked who he voted for, he then named a candidate and told the Tribunal that the AL was successful in his constituency.  However he then said a named candidate from the Liberal Democratic Party had won in that constituency.  The Tribunal recorded that it put to the Applicant that a named BNP candidate was successful in that constituency in the 2008 elections.  The Applicant then said he was in a different (a third) constituency and that it was all eight years ago. 

9. The Tribunal recorded that it put to the Applicant that if he was a BNP supporter and he voted for the BNP candidate, he might remember the name of the BNP candidate.  He referred to changes in the constituencies.  The Tribunal noted that he had given the incorrect name for the BNP candidate in his constituency.  The Applicant said this person was a candidate in a different constituency.  However, the Tribunal noted that the successful candidate in the third constituency was the Liberal Democratic Party candidate.  In response to a question as to who was the current Member of Parliament in the constituency in which the Applicant said he had voted, the Applicant provided a name that differed from country information.  The Applicant then changed his evidence again, and claimed that he was now in one of the other constituencies.

10. The Tribunal acknowledged (at [82]) that the 2008 elections were some time ago, that it may be difficult to recall details and also that it was possible constituency borders may shift over time.  In this way it addressed the Applicant’s explanations for his memory problems.  It has not been established that the Tribunal failed to have regard to the Applicant’s explanations for the changes and inadequacies in his memory in the manner in which he contended such as to establish a failure to consider an aspect of his claims or otherwise such as to be indicative of jurisdictional error.

11. Moreover, as indicated above, the Tribunal went on (at [82]) to express concern about the way the Applicant’s evidence about the constituency in which he voted had changed “multiple times”.  It was in that context that it had difficulty accepting that, if the Applicant was actively involved with the BNP as claimed, his evidence about where he voted and what candidate was successful in his constituency in the 2008 national elections would be “so confused”.  It did not accept that he had adequately explained his confused and contradictory evidence in this respect and found that this cast doubt upon his claim to have been a politically active person who voted for and supported the BNP in those elections as well as being of the view that these changes suggested that he was prepared to shift his evidence in response to concerns and that this raised questions about his reliability as a witness.

12. The Tribunal’s findings in relation to this aspect of the Applicant’s claims were reasonably open to it on the material before it for the reasons which it gave and are not indicative of jurisdictional error.  More generally, as contended for by the First Respondent, the Tribunal’s overall credibility findings were also reasonably open to it on the material before it for the reasons which it gave.  While credibility findings are not immune from challenge in the manner considered in CQG15 v Minister for Immigration and Border Protection (2016) 70 AAR 413; [2016] FCAFC 146, in this case there is nothing in the material before the court to suggest any available basis for challenging the findings of the Tribunal in relation to credibility (or otherwise). There is nothing in the material before the court to suggest any lack of a logical or probative basis, illogicality, irrationality, a failure to afford procedural fairness, a misunderstanding of relevant material, or legal unreasonableness in the sense considered in CQG15.

13. Today the Applicant said that this was his main concern with the Tribunal decision and that he could not at the time remember any other concerns.  I told him that I would give him the opportunity after the First Respondent’s oral submissions if there was something that he had forgotten. 

14. In reply, he then raised a further concern, providing to the court an explanation for why he had waited one year before applying for protection in Australia.  He explained that his concern was that the Tribunal had not believed his explanation.

15. However the explanation and concern that the Applicant now raises does not establish jurisdictional error on the part of the Tribunal.  In its reasons for decision at [92]-[93], the Tribunal had regard to the Applicant’s delay in applying for protection and the fact that before the delegate the Applicant had explained that initially he wanted to return to Bangladesh, but that the situation for BNP supporters was deteriorating daily.  It recorded that it had put to the Applicant the delay of almost a year and asked why, if he was afraid of being targeted by the AL, he did not apply earlier.  Insofar as he sought to explain his delay to the Tribunal by stating he was waiting to see the outcome of the elections (and that if the BNP came to power he would return), the Tribunal noted that those elections had occurred in January 2014 and that this did not explain adequately why the Applicant had waited until June 2014 to apply for protection.  It also had regard to the fact that this explanation differed from the explanation the Applicant had provided in his written submissions (in which he had stated he was ready to return, but was warned by his peers and family that Awami thugs were in search of him, so he changed his mind). 

16. There is nothing to indicate that the Tribunal failed to consider the explanations the Applicant provided to the delegate and to it in relation to his failure to apply for protection for almost a year after he came to Australia.  The Applicant’s disagreement with the Tribunal’s findings in this respect goes no further than seeking impermissible merits review.

17. The ground in the application is not made out.  Nor is jurisdictional error established on any of the other bases raised by the Applicant or apparent on the material before the court.  In these circumstances the application should be dismissed.

18. The Applicant has been unsuccessful.  He should meet the Minister’s legal costs.  The amount sought is appropriate in light of the nature of this and other similar matters.

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Judge Barnes

Date: 15 February 2018