BGV15 v Minister for Immigration

[2018] FCCA 1787

FEDERAL CIRCUIT COURT OF AUSTRALIA

BGV15 & ORS v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1787

Catchwords:
MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – visa – protection visa – refusal.

ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that it was unreasonable or illogical and was based on a failure to consider all claims made by the applicants.

Legislation:

Migration Act 1958, ss.36, 474

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

First Applicant: BGV15

Second Applicant: BGW15

Third Applicant: BGX15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1867 of 2015

Judgment of: Judge Cameron

Hearing date: 26 June 2018

Date of Last Submission: 26 June 2018

Delivered at: Sydney

Delivered on: 12 July 2018

REPRESENTATION  

Counsel for the Applicants: Mr P. Bodisco

Solicitors for the Applicants: ABU Legal

Solicitors for the Respondents: Mr A. Keevers of Sparke Helmore

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1867 of 2015

BGV15

First Applicant

BGW15

Second Applicant

BGX15

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. The applicants are citizens of Bangladesh who arrived in Australia on 24 July 2013.  On 14 August 2013 they lodged an application for protection visas with what is now the Department of Home Affairs (“Department”).  The first and second applicants, who are wife and husband respectively, each submitted their own claims for protection while their son, the third applicant, was included in the application as a member of the family unit.  On 28 May 2014 the applicants’ application was refused by a delegate of the first respondent (“Minister”).  The applicants then applied to the second respondent (“Tribunal”) for a review of that departmental decision.  They were unsuccessful before the Tribunal and have applied to this Court for judicial review of the Tribunal’s decision.

2. In this judicial review proceeding the Court’s 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. The first and second applicants each submitted their own claims for protection but relied on the same events in Bangladesh.  The facts alleged in support of their claim for protection visas were summarised by the Minister in his written submissions in the following terms which I adopt (with reference to “applicant” being references to the first applicant):

   3.1The applicant and second applicant were married and in business together.  The applicant claimed she began to be sexually harassed by the Chairman of their company. The second applicant confronted the Chairman and told him to stay away from the applicant. The sexual harassment continued, so the applicants complained to the police, who said they could not take a report before anything had happened.

   3.2After deciding that the applicant would stop going to the office, on 17 July 2009, the Chairman asked the applicant to attend the office alone to deliver a key. The applicant did so whereupon she was raped by the Chairman. The applicants reported this incident to the police.

   3.3The applicant’s cousin was angry and confronted the Chairman resulting in the cousin being shot and killed on 20 July 2009. The Chairman was arrested and charges remained pending. The Chairman was released on bail and he continued to threaten the applicants and their family. He raped the applicant on two more occasions. After they left for Australia, the Chairman made inquiries about the applicants’ whereabouts. (References omitted)

2. The applicants also provided various documents in support of their application.

The Tribunal’s decision and reasons

1. After discussing the claims made by the applicants and the evidence before it, the Tribunal found that it was not satisfied that the applicants were persons 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 findings and reasons were summarised by the Minister in his written submissions in the following terms which I also adopt:

   4.The Tribunal had “significant concerns” with the applicants’ evidence and found that they had “not been truthful” and “fabricated core aspects of their claims”. The Tribunal set out its concerns with the applicants’ evidence, including the following:

   4.1The applicants provided evidence that they had the means to leave Bangladesh for Canada in 2012, yet they stayed in Bangladesh in the face of their claimed fears. The Tribunal noted in this regard that the applicants had remained in Bangladesh a further three months after being granted visas to Australia. The Tribunal considered the applicants’ assertions that they were waiting until they were “really forced” to leave Bangladesh because they had “such a good life” there to be inconsistent with their claimed fears.

   4.2The Tribunal found the applicant’s account of the first rape “unpersuasive”. In relation to the second and third claimed rapes, the Tribunal found the applicants’ evidence to be “so inconsistent as to not be credible”. The Tribunal’s particular concerns related to how many incidents there were and when the second applicant returned from his village after they occurred.

   4.3The applicant gave inconsistent evidence about the harassment, her discussions with another staff member about it, and her knowledge of the Chairman’s background.

   4.4The Tribunal found that the evidence about when the second applicant confronted the Chairman was “inconsistent”. The Tribunal did not accept the applicants’ explanations for these inconsistencies. The Tribunal also found that the applicants gave “inconsistent” evidence about when they reported the incidents to police.

   4.5The Tribunal found that the documentary evidence provided in support of the applicants’ claim that the applicant’s cousin was shot and killed did not correlate with their claims. Further, the applicants’ other evidence in this connection was also “not consistent”.

   4.6The Tribunal identified several inconsistencies in the applicants’ evidence about the continued harassment of their family. The Tribunal found that the applicants’ travel histories also undermined their claims.

   4.7The Tribunal expressed “significant doubts” about the authenticity of a medical certificate provided in light of the date of the certificate and the prevalence of document fraud in Bangladesh.

   5.The Tribunal concluded that its concerns were “so numerous and significant” that it could not be satisfied of the truthfulness of core aspects of the applicants’ claims. The Tribunal had regard to the claim that the applicants’ family would “not accept them” and that the third applicant would suffer “psychological harm” on return to Bangladesh. However, [as the Tribunal did not accept that the first applicant had been raped] the Tribunal found that the applicants would not experience “any harm” [arising from that]. The Tribunal also rejected any claim that “societal pressures” would result in serious harm. (References omitted)

THE PROCEEDING IN THIS COURT

1. In their amended application the applicants alleged:

   1.The RRT has made a decision so unreasonable or illogical that no reasonable person would have made it.

   Particulars

   In damning the First Applicant’s credit by reference to a false factual premise, namely that her account of having been in hiding for a period of three months after she was sexually assaulted was inconsistent with the address she had nominated as residing at “for six months or months or more in the last 10 years” in her initiating application, the Tribunal has made a decision so illogical or unreasonable that no reasonable person would have made it.

   2. The RRT has breached section 425 of the Migration Act 1956 [sic].

   Particulars

   1.The RRT has failed to consider the claims of the Second Applicant, despite the Second Applicant having made an independent claim due to the claims being mischaracterised as solely dependent on the First Applicant’s claim alone.

   2.The RRT has failed to apply the reasoning of SZTQD v Minister for Immigration [2016] FCA 339 at [48]-[49].

Ground 1

1. The applicants argued that the Tribunal had wrongly concluded that the first applicant’s account of having been in hiding at a friend’s house for a period in the three months before coming to Australia was inconsistent with her answer to question 35 of her protection visa application form which was, relevantly, that she lived at a particular address in Dhaka from July 2010 until July 2013.  Answers 28 and 33 in the same form stated that the first applicant left Bangladesh on 22 July 2013 and arrived in Australia on 24 July 2013.

2. The applicants’ argument was based on the terms of question 35 which were “Give details of all addresses OUTSIDE AUSTRALIA where you have lived for 6 months or more in the last 10 years”.  They submitted that the first applicant had not been required by question 35 to disclose the period spent in hiding and it was therefore erroneous of the Tribunal to attribute any significance to the absence of a reference to that period in the answer to question 35.

3. The applicant’s argument misconstrues the substance of the Tribunal’s reasoning which is fairly exposed by the way it was expressed:

   While the wife applicant claims to have been in hiding at a friend’s house during this time this is not consistent with the application forms which state that the wife and husband applicants lived at the same address from July 2010 to July 2013. (para.14)

4. In her statement accompanying her protection visa application the applicant relevantly said:

   My husband and I with our son was living with a friend of mine namely [name] at [address] for few weeks especially during the night apart from visiting our apartment and parents place.

5. The fact is that the first applicant’s answer to question 35, namely that she had lived at only one address for three years concluding in July 2013, was quite inconsistent with the later claim to have been in hiding for “a few weeks” in the second quarter of 2013 because, if she had been in hiding as she alleged, the period given in answer to question 35 would not have included the period in hiding, as it did.

Ground 2

1. The second applicant’s express claim was based on the veracity of the assault claim, with the consequence that the applicants’ failure to satisfy the Tribunal that the assault, or indeed any other event material to a risk of harm, had occurred, led to the Tribunal not being satisfied that the second applicant faced a risk of harm in Bangladesh. 

2. The second ground of the amended application alleged that a further claim for protection had been made by the second applicant and was said to be discernible in para.5 of his statement submitted with his protection visa application where he referred to his own circumstances and the consequences for him of the assault said to have been suffered by the first applicant.  Briefly, he alleged that his mental equilibrium had been disturbed by the assault on his wife and that this claim subsisted even if the assault alleged was not accepted as having occurred.

3. I do not think a fair reading of the second applicant’s statement supports a conclusion that he claimed to be at risk of the sort of harm which would attract Australia’s protection obligations even if the alleged assault on his wife was not proved. He stated that the alleged assault and consequent disruption to his life caused him to be “mentally, physically, economically and socially very much disturbed. However, that statement, which appeared to be the basis of this allegation, was not linked to a circumstance which might engage the Convention and did not suggest a risk of significant harm which would engage complementary protection obligations under s.36(2)(aa) of the Act.

4. The applicants also submitted that the Tribunal should have perceived on the material before it a claim available to the second applicant to the effect that he faced a risk of serious or significant harm even if his wife had not been assaulted.  However, it is not apparent that any unarticulated claim of that sort arose with sufficient clarity from the material before the Tribunal such that the Tribunal had been required to consider it.  What the second applicant said in his statement, and specifically in para.5 of that statement, simply does not reasonably support such a reading.

CONCLUSION

1. Neither of the amended application’s grounds discloses jurisdictional error on the part of the Tribunal.

2. Consequently, the application will be dismissed.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Date: 12 July 2018