BFU15 v Minister for Immigration

[2017] FCCA 1626

FEDERAL CIRCUIT COURT OF AUSTRALIA

BFU15 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1626

Catchwords:
MIGRATION – Application for protection visa – review of decision of Refugee Review Tribunal – whether the Tribunal failed to take into account the circumstances of the applicant – whether the Tribunal failed to consider the applicant’s fear of harm upon return to Bangladesh – no jurisdictional  error – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.474

Applicant: BFU15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1828 of 2015

Judgment of: Judge Smith

Hearing date: 21 June 2017

Date of Last Submission: 21 June 2017

Delivered at: Sydney

Delivered on: 21 June 2017

REPRESENTATION

The applicant appeared in person.

Solicitors for the Respondents: Mr A. Day, DLA Piper Australia

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $3,303.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1828 of 2015

BFU15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Extempore and Revised)

1. The applicant is a citizen of Bangladesh who arrived in Australia on 25 November 2013.  On 19 December 2013, he applied for a protection visa.  The applicant claimed that he feared harm from supporters of the Awami League because of his links with the Bangladesh Nationalist Party (BNP), and his position as publication secretary of its front organisation, the Juba Dal[1].  On 4 July 2014, a delegate of the Minister made a decision to refuse to grant the applicant a protection visa, and the applicant applied to the Refugee Review Tribunal[2] (Tribunal) for a review of that decision.  The applicant was invited to, and attended a hearing conducted by the Tribunal on 9 June 2015.

   [1] The youth wing of the Bangladesh Nationalist Party (BNP).

   [2] As it was then known. On 1 July 2015 it became the Administrative Appeals Tribunal: Tribunals Amalgamation Act 2015 (Cth).

2. The Tribunal handed down its decision on 11 June 2015.  The Tribunal’s decision was to affirm the decision of the delegate not to grant the applicant a protection visa.  The reasons for the decision of the Tribunal are correctly summarised at [7] through [10] of the respondent’s written submissions, which I set out below: 

   7The RRT was not satisfied that the applicant had a well-founded fear of being persecuted in Bangladesh, or that he faced a real risk of significant harm, for reason of his links with the BNP ([74]-[75]).

   8The RRT accepted that political activists who support opposition parties in Bangladesh may, under certain circumstances, be subjected to serious or significant harm. However, the RRT had considerable doubts about the plausibility of the applicant's key claims to have been a political activist ([59]).

   8.1Apart from his own assertions, there was no evidence that the applicant was a member of the BNP. The applicant provided letters to support his claims that he was a member of the BNP. However, the RRT considered these letters to be fabrications, and not to have been written by a member of the BNP ([61]-[63]).

   8.2The RRT was satisfied that the applicant submitted documents he knew to be fabricated, which cast doubt on his general credibility. For this reason, the RRT found that photographs which had been submitted by the applicant were not a reliable source of evidence that the applicant was involved in political activities in Bangladesh ([64]).

   8.3The RRT had regard to evidence that two months before the applicant left Bangladesh, there were municipal elections in which the BNP candidate was successful in Barisal. The RRT found this evidence to be reliable. The applicant gave evidence that he believed there to be no elections at any level in 2013. The RRT held that this was inconsistent with the applicant's claims to have been an active supporter of the BNP for some 15 years, as he would have been aware of the municipal election shortly before his departure. Accordingly, the RRT did not accept that the applicant was a support of the BNP ([65]-[68]).

   9The RRT concluded that the applicant's claims to have been involved with the BNP, or one of its front organisations, were 'highly implausible' and did not accept that he was perceived by anyone to be involved with any such organisation ([60]). The RRT did not accept that the applicant was ever harassed or threatened by supporters of the Awami League, or was of any interest to the authorities, because of a perception that he was a political activist with the BNP, or for any other reason ([69]).

   10Accordingly, the RRT considered the chance remote that the applicant would be harmed in any way in the reasonably foreseeable future because of a political opinion imputed to him or for any other Convention reason. The RRT held that the applicant's fear of being persecuted for a Convention reason was Bangladesh is not well-founded ([70]-[71]) and that there were no substantial grounds for believing that there was a real risk that he would suffer significant harm ([73]).

3. The applicant now seeks judicial review of the Tribunal’s decision.  In order to succeed he must establish that the Tribunal’s decision was affected by jurisdictional error.

4. As I sought to explain to the applicant today, the Tribunal will have committed jurisdictional error if it does not properly fulfil its function according to law.  That is, it does not review the decision of the delegate on a proper understanding of the law, having taken into account the evidence before it, and having afforded the applicant procedural fairness as understood in the context of the Migration Act 1958 (Cth) (Act). 

5. The grounds in the applicant’s application are as follow:

   1.Refugee Review Tribunal failed to consider my Circumstance into Account in its decision (Affidavit Attached)

   2.Migration Review Tribunal failed to consider the relevant fact of my circumstance which was critical in reaching the decision (Affidavit Attached).

   3.That I hold genuine fears for my life

   (Errors in original)

6. I will deal first with ground 3.  On its face, this ground is an assertion of fact which, if accepted, might have supported the applicant’s application for a protection visa.  However, it is not a fact that is relevant to establishing whether or not the Tribunal fell into jurisdictional error.  For that reason, the ground is rejected. 

7. The first two grounds appeared to raise the same issue; namely, a failure to consider the circumstances of the applicant.  They both refer to the affidavit of the applicant.  For that reason, the affidavit of the applicant was admitted into evidence. It stated as follows (without alteration):

   1.That I am the applicant

   2.The decision made by the Tribunal member on 11 June, 2015 minimised the issues for my application for a protection Visa

   3.I hold genuine fears for my life if returned to Bangladesh as I have suffered numerous aspects of violence by Awami League over the years

   4.The political party, Juba Dal, is a small wing of and had about 100 members and I was actively involved as a secretary.

   5.The letter from [name] is from a genuine person who passed away in January 2015 which was in the local Bangladesh news.

   6.It is common for people in my country to be illiterate or of low education, so my standard of understanding details of politics is limited.  Even the present BNP leader Khaleda ZIA is lowly educated

   7.My education and my life is bound by my culture and expectations which is not sophisticated but corrupt and at times politically unstable

   8.My participation in BNP since 2005 in a small branch of Juba Dal with 100 members exposes me to be killed as it happened to a Bangladeshi American Citizen on his return in April 2015.

9.I have attached the following documents A-B with this application:

A – Decision Record

B - Applicant’s Passport Copy

1. When the content of the affidavit is considered against the reasons for the decision of the Tribunal, it is clear that what is meant in grounds 1 and 2, is not that the Tribunal failed to consider the applicant’s circumstances in the sense that it failed to take account of them, or to engage in intellectual activity concerning them; rather, what is meant is that the Tribunal failed to accept the applicant’s claims.  In other words, the grounds in the application take issue with the merits of the Tribunal’s findings.  As such, they do not give rise to any jurisdictional error.

2. For those reasons, the grounds in the application do not support any arguable case for the issue of constitutional writs. 

3. I have considered the Tribunal’s decision for myself and can discern no jurisdictional error.  The Tribunal properly invited the applicant to attend a hearing and he attended that hearing.  There is no suggestion that he was unable to give evidence, or to present arguments at that hearing.

4. The Tribunal’s reasons, as set out in its statement dated 11 June 2015, show that the Tribunal engaged with all of the material before it, including the applicant’s claims and evidence, and made findings of fact that were open to it. Those findings led the Tribunal not to be satisfied that the applicant met the criteria for the grant of a protection visa, and reveal that the Tribunal properly understood those criteria and properly fulfilled its task of reviewing the delegate’s position. 

1. As there is no jurisdictional error in the Tribunal’s decision, the application must be dismissed. 

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Smith

Date:     13 July 2017