BKE17 v Minister for Immigration

[2017] FCCA 3057

FEDERAL CIRCUIT COURT OF AUSTRALIA

BKE17 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 3057

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a protection visa – no mistake or misunderstanding made by the Tribunal in relation to the applicant’s claims – the Tribunal made dispositive findings that were open to the Tribunal – the Tribunal complied with its obligations of procedural fairness – no jurisdictional error identified – amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 424A, 476

Applicant: BKE17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1003 of 2017

Judgment of: Judge Street

Hearing date: 7 December 2017

Date of Last Submission: 7 December 2017

Delivered at: Sydney

Delivered on: 7 December 2017

REPRESENTATION

The applicant appeared in person.

Solicitors for the Respondents: Mr A Day
DLA Piper Australia

ORDERS

1. The amended application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $4,596.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1003 of 2017

BKE17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 14 March 2017 affirming a decision of the delegate not to grant the applicant a protection visa.

2. The applicant was found to be a citizen of Bangladesh and his claims were assessed against that country. The applicant arrived in Australia on 29 May 2014 as the holder of a subclass 600 visitor visa. The applicant applied for protection on 20 June 2014.

3. The applicant claimed to fear harm from the Awami League activists on account of his involvement with the Jatiyabadi Chattra Dal (JCD) and the Bangladesh National Party (BNP). The applicant also claimed to fear harm from his brother who is actively involved in the Awami League and who the applicant claimed ousted him and his family members from their home. The applicant claimed that he fears for his safety and that he will be seriously harmed if he returned to Bangladesh. On 13 February 2015, the delegate found the applicant failed to meet the criteria for the grant of a visa under the Act.

The Tribunal’s decision

1. The applicant applied for review on 17 March 2015. The applicant was invited to attend a hearing and the applicant appeared on 20 February 2017 to give evidence and present arguments and was represented by his migration agent. At that hearing, the applicant was given a further period of time until 1 March 2017 to provide further information, following which there was a request for an extension of time which was granted by the Tribunal and further submissions were provided on the applicant’s behalf on 8 March 2017.

2. The Tribunal identified the background to the application for review. The Tribunal identified the relevant law. The Tribunal summarised the applicant’s claims and evidence. The Tribunal noted that at the hearing the applicant reiterated his claims as to fearing return as a result of his brother and due to his political involvement and activities. The applicant claimed his brother will harm him on return as he fears he will institute proceedings to reclaim the family property that that the brother has taken in Teradol. In the course of the hearing, Tribunal’s reasons summarised raising concerns in relation to the applicant’s credibility in respect of his claims.

3. The Tribunal, in considering the applicant’s claims, summarised the material that was provided in support, including referring to the applicant’s mother’s letter in detail dated 14 April 2015, a letter from Dr Mohsin, a medical officer, and also a certificate from the JCD dated 2 February 2017. The Tribunal recorded raising with the applicant the letter of Dr Mohsin and whether it was reliable and the applicant urged the Tribunal to contact Dr Mohsin for further details and information to substantiate the supporting documentation.

4. The Tribunal referred to its assessment of the applicant’s credibility. The Tribunal did not accept the applicant is a credible witness or that the applicant suffered harm or difficulties in his country that he claims for the reasons he claims, which led him to leave Bangladesh and why he fears return. The Tribunal did not accept that the applicant was ever involved in the JCD or the BNP in the manner claimed or that he was harassed, threatened or physically assaulted by member of the Awami League due to his political involvement and family property dispute with his brother X. The Tribunal found the applicant’s testimony to be inconsistent as to these claims and was of the view that the applicant had fabricated claims and concocted evidence to achieve an immigration outcome.

5. The Tribunal did not accept the applicant ever joined the JCD working with the BNP, or was involved with them, or faced any difficulties that he claimed. The Tribunal gave detailed reasons in support of the adverse credibility findings and identified, first, that the applicant’s evidence was not consistent with independent information as to who was in government at the time, which the Tribunal expected the applicant would know if he was actively involved in the JCD at the time. The applicant proffered an explanation in relation to the information and his claim that the Awami League was in power and the applicant referred to his brother having good relations with the police and Awami League. The Tribunal did not accept the applicant’s response as it was inconsistent with independent information. The Tribunal identified having difficulty accepting that the applicant’s brother’s relationship with the police explains why the Awami League generally and the associated Chattra Dal, could act with impunity at the time when the information indicates that the party in power namely, the BNP, would have been able to do so.

6. The Tribunal was of the view that if the applicant was involved in the JCD, being the student wing of the BNP at the time as claimed, he would know whether his party, the BNP, was in power. The Tribunal was of the view that the applicant would be able to recall while he was at college from 2001 to 2004 and was involved in BNP student politics whether the BNP or Awami League was in Government if he was a supporter, member or activist of the JCD and BNP. The Tribunal was of a similar view in relation to the fact that the applicant would have known if there was an election in 2004 or 2005.

7. The Tribunal found the applicant is not a credible witness as to ever being involved in the JCD and BNP in this period in any manner whatsoever and was not credible in relation to the difficulties the applicant claims, including being chased with knives and instruments by the Awami League in 2002 and 2003.

8. The Tribunal identified difficulties with the applicant’s evidence in relation to his brother X. The Tribunal referred to the applicant claiming his brother is closely involved with the Awami League and that the applicant’s claim of involvement with the JCD together with his brother wanting the family home, caused him to be targeted and the reason why he fears return. The applicant claims that his mother and brother were targeted after he departed.

9. The applicant claimed that after he departed Bangladesh his brother attacked his home where he had lived with his mother and other brothers and smashed it up and his family had to move to another area. The Tribunal found the applicant’s claims were the subject of inconsistent evidence and found the applicant is not a credible witness as to facing the difficulties claimed. The Tribunal provided detailed reasons in support of those adverse findings, referring to the fact that at the hearing before the Tribunal, the applicant indicated that his brother X lived with the applicant and his mother and two brothers at a particular city until 2010. The Tribunal referred to the alleged dispute involving the applicant’s brother X and a chair. The Tribunal identified that at the interview the applicant gave a completely different time in relation to the alleged incident. The Tribunal noted that when the inconsistency was raised with the applicant he responded that it happened a long time ago and he was not sure what he meant at the Department interview. The Tribunal noted that the applicant is very well educated and achieved an MBA from Stanford University in Bangladesh. The Tribunal found the applicant provided inconsistent evidence as to the harassment and threats by unknown persons which he believes to be the Awami League acting on behalf of his brother.

10. The Tribunal found the applicant provided inconsistent evidence as to when his brother X went to the rented family home and smashed it up and threatened more attacks if the applicant returns. The Tribunal found the applicant’s home was not smashed by brother X, his mother was not threatened, that the applicant was not threatened via his mother and that as a result the family moved. The Tribunal referred to the applicant having indicated to the Department that the family land for cultivation was safe from his brother X. The Tribunal found the applicant was not a credible witness.

11. The Tribunal found the inconsistent claims by the applicant of departing Bangladesh in fear of serious harm from the Awami League and his brother, and fear of kidnap, death and torture and his evidence that he remained living at home and working at his employment until his departure in 2014 for Australia, was inconsistent. The Tribunal referred to raising with the applicant why he had not taken action in the past when it is his claim that the property was taken in 2010 and the applicant said he earned money in Australia in order to be able to bribe police to help him recover the property.

12. Tribunal did not accept the applicant’s response as his evidence is that from 2010 when he was earning a good wage in Bangladesh working as an IT executive at a bank and was quite wealthy. The Tribunal found the applicant lived and worked at the same address in Bangladesh up until his departure to Australia and found this further undermined the applicant’s claim of past harm, claims to have difficulties that he faced and that he fled in fear.

13. The Tribunal found the applicant had provided inconsistent evidence as to whether he sought to live elsewhere in Bangladesh to avoid the harm feared. The Tribunal found the applicant provided inconsistent evidence as to seeking safety in Chittagong.

14. The Tribunal did not accept the applicant was truthful in respect of his travel to India in 2012 and Malaysia and Thailand in 2013 to seek asylum, but due to difficulties claimed, returned to Bangladesh. The Tribunal referred to the applicant’s claims that he went to Malaysia and Thailand to seek protection and asserted he could obtain little information about how to do so. The Tribunal had difficulty accepting that a person who fears harm and is educated with an MBA from Stamford University in Bangladesh, who speaks English, and who at the time was an IT executive in a stockbroking firm, would only speak to relatives of a friend about seeking asylum in India if his fear of harm is true. The Tribunal had similar difficulty in accepting that the applicant would only talk to random Bangladeshis in Malaysia and stay only days if he was harassed and swindled by officials. The Tribunal referred to country information identifying that asylum seekers could seek asylum in Malaysia. The Tribunal raised its concerns in this regard with the applicant and the applicant responded at the hearing that he tried to seek asylum, but it was his first time abroad and he was worried about losing his job and he had had bad experiences. The Tribunal did not accept that a person with the applicant’s attributes, an IT executive, would undertake the limited steps the applicant asserts of speaking to local Bangladeshis if he fled Bangladesh in fear.

15. The Tribunal found the applicant’s responses were not credible in relation to his travelling to India, Malaysia and Thailand to seek asylum due to difficulties he faced in Bangladesh and his fear of harm. The Tribunal found the applicant’s return to Bangladesh on two occasions to his home and his job, to be inconsistent with his claimed fear of harm.

16. Considering the above matters cumulatively, the Tribunal found the applicant not to be a credible, truthful and reliable witness. The Tribunal found the applicant had fabricated claims and concocted evidence to achieve an immigration outcome. On the basis of the cumulative credibility concerns, the Tribunal found that it did not accept the applicant as a credible witness and could not be satisfied on the evidence before it that the applicant is a truthful witness as to his claim as to why he departed Bangladesh and why he fears return.

17. The Tribunal referred to the applicant’s explanation of lapses of memory and nervousness, but did not accept those factors explain or excuse the concerns cumulatively which the Tribunal identified in relation to the applicant’s wont of credibility. The Tribunal did not accept the applicant’s explanation or excuse for the inconsistency in respect of being unable to recall dates and records as to his employment and residence.

18. The Tribunal referred to the certificate dated 2 February 2017 and due to the applicant’s lack of credibility and prevalence of fraud, placed no weight on the document. The Tribunal considered the applicant’s mother’s letter and found it did not constitute independent and impartial evidence, and given the lack of credibility of the applicant’s evidence, the Tribunal decided to give no weight to the mother’s letter and its contents.

19. The Tribunal referred to the submission concerning the prevalence of fraud in Bangladesh. The Tribunal noted that it had considered the submission and did not view the original documents when offered. The Tribunal accepted that the copy submitted by the applicant’s representative are true copies of the originals. However, the Tribunal placed no weight on the documents because of the applicant’s lack of credibility.

20. The Tribunal referred to an invitation to contact Dr Mohsin and the President and General Secretary of the JCD to confirm the documents were genuine. The Tribunal did not consider that to be a reasonable request and provided reasons in support of the difficulties in that regard.

21. The Tribunal referred to accepting the applicant has sustained a scar on his body, but found the scar did not outweigh the significant credibility aspects identified in the Tribunal’s reasons. In light of the finding that the applicant was not a reliable witness, the Tribunal had no confidence in accepting key aspects of the applicant’s claims, based on his personal or actual experiences, and considered those claims were fabricated to create a protection outcome.

22. The Tribunal did not accept the applicant was ever threatened, directly or indirectly, or faced any of the difficulties he claims at the hands of the Awami League and/or the Chattra League and/or the police, as he was a supporter, member, or ever involved with the JCD and/or BNP or was ever perceived as supporters of the JCD and/or BNP, or perceived as being opposed to the Awami League or as the JCD and BNP are in alliance with or associated with JI.

23. The Tribunal did not accept as true the applicant’s claim that he joined the JCD in 2001 or 2004, regularly attended meetings, protests, hartals, rallies, strikes for the JCD or BNP while at college, in Dhaka, or ever in Silkit. The Tribunal did not accept as true that the applicant worked for local candidates or promoted the BNP or JCD to new members or undertook any of the activities he claimed. The Tribunal did not accept the applicant was threatened, harassed and tortured, ever chased with knives and weapons, or while in rallies or at any time by Awami League, Chattra League members and that the police would not protect him.

24. The Tribunal did not accept that the applicant was ever in dispute with his brother X over the family home and the land in Teradol or that his brother had taken the land, threatened the applicant with kidnapping, torture or harm, has hit the applicant with a chair in 2004 or 2010, or had Awami League members harass and threaten the applicant near his office in 2013 and/or 2010/2011. The Tribunal did not accept that the applicant ran away from Awami League members in 2011 or 2013 and fled to his friend Dr Mohsin. The Tribunal did not accept as true that the applicant was ever threatened or harassed by the Awami League members acting on the advice of his brother X. The Tribunal rejected the entirety of the applicant’s claims.

Assessment of Refugee Convention Criteria

1. Based on the adverse finding on credibility, the Tribunal found the applicant was not now or never was a supporter, member, associated with, involved or perceived to be associated with the JCD or BNP or in opposition to the Awami League or faced any of the difficulties he claims for reasons he claimed. The Tribunal found that it did not accept as true that the applicant and his family were or are in dispute with his brother X over property, that his brother X has taken the family home in Teradol and land and that the applicant faced any of the difficulties claimed.

2. The Tribunal did not accept that the applicant and/or his family face a real chance of persecution at the hands of his brother X, the Awami League or the police, or anyone acting on brother X’s behalf or on account of any political opinion the applicant or his brother X holds, or as his brother X is involved with Awami League, or because there is a family property dispute, or because his brother X has taken the family property in Terradol and the applicant will seek it back on return. The Tribunal was not satisfied on the basis of the evidence before it that there is a real risk the applicant and/or his family will suffer significant harm on return to Bangladesh at the hands of his brother X, the Awami League or the police, or anyone acting on his brother X’s behalf or on account of any political opinion he or his brother X holds, or as his brother X is involved with the Awami League or because there is a family property dispute or because his brother X has taken family property in Teradol and the applicant fears that he will seek to get it back on return.

3. The Tribunal did not accept that there is a real chance that the applicant would face serious harm for the reasons advanced by the applicant if he returns in the reasonably foreseeable future. The Tribunal was not satisfied the applicant faces a real chance of serious harm for any of the reasons claimed or arising on the evidence, either singularly or cumulatively, for a Convention reason in the reasonably foreseeable future. The Tribunal was not satisfied the applicant faces a well‑founded fear of persecution in Bangladesh for a Convention reason in the reasonably foreseeable future. The Tribunal found the applicant did not meet the criteria under s 36(2)(a) of the Act. The Tribunal was not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention and found the applicant failed to meet the criteria under s 36(2)(a) of the Act.

Assessment of complementary protection criteria

1. The Tribunal was not satisfied the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act and affirmed the decision under review.

Before this Court

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

   1. The applicant claims that Administrative Appeal Tribunal mistook and misconstrued the facts. In making decision, The AAT failed to take account relevant considerations and took into account irrelevant considerations. The AAT made decision on irrelevant facts and findings.

   2. Particulars :.Applicant claims that his claims fall within the scope of the Refugee Convention for reasons of his membership of particular social group BNP.

   3. The applicant claims that the Tribunal failed to account significant grounds and circumstances in making their opinion about the applicant's particular social group as a member of BNP. At the Departmental interview the applicant reiterated his claims to fear of protection. He indicated he had sought documentary evidence he was a member of JCD or BNP but he said he had been unable to obtain from Bangladesh . When the questioned by AT at hearing as to why this was the case when he had been in Australia for six months, he said he had tried but had been unable to do so. As truth full witness he said to the Tribunal that leaders of the BNP or any political Organisation were fearful of being seen to provide documents in absence and they were unresponsive to requests.

   4. The applicant claims that the Tribunal totally ignored the circumstances. The applicant did not know about the required documents to put claims for the Protection Visa and he did not had any knowledge to the process of Protection Visa application.

   5. In the Protection Visa Application the applicant gave emphasis that because of his membership of the BNP and his family's support to the BNP he was harassed and tortured by the Awami League workers. Very clearly he mentioned the name of his other brother Oes Ahmed Khan who is strong follower and activist of the Awami League. The Applicant claims that Mr Oes Ahmed Kahn forcibly removed him from the family home because of applicant's association with the BNP party ..

   6. The applicant claims that the AA T mistook the facts by making opinion that the applicant has family disputes with his brother and he was removed from the home because of family dispute. The facts were misconstrued and misunderstood by the Tribunal.

   7. The applicant claims that he was denied natural justice and procedural fairness when the applicant was not given opportunity to expand his claim that that his brother is very powerful and influential local leader of Awami League. His fear of persecution is based on the political association with the BNP.

   8. Particulars : The issue of applicant's brother's association with the A wami League was in Part determinative was determinative of the question as whether the Respndent( Department) might have grounds to believe that the applicant would or would not suffer significant harm if he returned to Bangladesh.

   9. The applicant claims that the AA T has an obligation to put the matter to the applicant in such a way as to give him a sufficient opportunity to give evidence or take submission about the Issue.

   10. The applicant submitted the evidence of his claim for the fear of a significant harm from his brother. The applicant submitted a letter from his mother but the AAT did not account as a credible evidence and concluded in general that any document coming Bangladsh is always bogus. The applicant lives in Australia. He can only request his relative or friends to send some documents for his claim for the protection Visa .

   11. The applicant claims that he isa truthfull witness and told to the Tribunal everything truly and sincerely about his family situations .But he was reluctant to discuss events occurred in his life in Bangladesh for fear of re-awakening associated anxiety and stress.

   12. The applicant's representative rightly said in his submission" Mr. Khan remembers fondly certain members of his family and work experience and, as such , can regale the Tribunal with relative ease on such matters however, in order to comment upon his nvolvement with JCD, the instane of harassment by nknown ssailants as wellas the threats and physical harm he encountered from his brother Oes Khan, the review applicant becomes flustered and anxious to relive such memories.” (Green Book PP230-231)

   The applicant claims that he was unable to recall official dates , locations and certain other specifics is not reflections his credibility but rather the result of a cultural heritage and exposure ot such record System in his country Bangladesh. The Tribunal ignored the circumstances in which the applicant departed and the situations. The applicant claims that the information details provided by the applicant have been affected by anxiety .

   At the Tribunal the applicant has chance to expand the details of what he had given at the time of arrival to the Department. During hearing the applicant demonstrated significant knowledge of the 2008 Elections and who the primary candidate s were and ther political affiliation lending support to his claim of being politically involved in he JCD as well as his standing within the Organisation .

   The Applicant claims that the Department's finding of reasons are confused and test for

   persecution is not applied according to the rules of the Act and according to Complementary Protection Provisions under s.36(2) (aa) of the Act.

   13. Particulars :The applicant's fears of Persecution falls within the scope of Complementary Protection provisions for reasons of his membership of a particular social group as returnee from Australia and his imputed political opinion. He left Bangladesh because of fear of foreseeable harm. The applicant gave several instances of harassment and torture by the Awami League suppmiers. He was harassed by men unknown to him after he departed his office at Stockbrokers in 2010/11. He has been threatened by his brother since he joined JCD in 2004 .His brother has been instrumental in arranging in all past attacks. In approximately 2014 his brother forcibly removed him and from family home.

   14. He left his country because of the constant threates and there was a high risk to his life in Bangladesh .The applicant claims that there is a risk to return to his country because of his opposition political activities. If he is compelled to go back to his country the Awami League workers will torture or kill him .

   15. The Deapartment failed to give real reasons for not applying Complementary Protection Criteria Under Paragraph 36 (2) (aa). The Department undermined the threat from the opposing Awami League. The question of whether substantial grounds exist is to be determined the whole of the evidence and information before the decision maker. The department's complementary protection, guidelines released on 24th of March 2012 suggest that “(t)he term 'substantial grounds for believing refers to the information or evidence required to support a belief that an applicant would face a real risk of significant harm'

   16. The applicant claims that the AAT ignored the Guide lines for complementary Protection when the AAT did not give any attention to applicant's mother letter (Green Book PP 137)

   17. " the other son Oes Ahmed Khan is taking advantage of Yahayah 's absence from the country. As a result he( Oes Ahmed) is by force trying to remove Yayahafrom ownership of family property and he is determind not to allow him to live in the house again. Because of Oes 's strong link with the rulling political party ( Awami League) he cannot use rowdy and violent radical activists to achieve his desired out come . He ( Oes Ahmed) recently showed us and threatened me with more such attacks if yahyah returns to live here . As a mother , itried to counsel and discipline my son Oes but he is by nature stubborn and arrogant. He does not want to listen to any one in the family. When yahyah was living in the country, Oeshad always threatened him with physical harm and even with life .... For fear of his life, I sent him once away outside the Country to live but as there was no work and no money there he had to return home "

   18. The Departmental guidance on the Assessment of credibility paper provides decision makers with a list of the types of evidence and information which may be used in the decision making process including: written submissions, an applicant's oral evidence, oral evidence from other persons, information about conditions and lodge in an applicant's country of origin, expert evidence in the form of written reports oral evidence and documentary evidence provided by an applicant or the department.

   19. The applicant claims that the AAT failed to apply all the above requirements for assessment for the cretaria of Complementary protection . The applicant claims that the AA T overlooked all the information forwarded by the applicant to the real risk test involves an assessment of the objective level of risk faced by the applicant. The applicant fears if he is compelled to go back to his country he will face a significant harm from the supporters of the Awami League

1. At the commencement of the hearing, the Court explained to the applicant that this was a final hearing to determine whether the Tribunal’s decision was affected by relevant legal error. The Court explained that the relevant legal error had to be either an excess of statutory power or a denial of procedural fairness to the applicant. The Court explained that in summary, this meant the Court was considering whether the Tribunal’s decision was unlawful or unfair. The Court explained that if satisfied the Tribunal’s decision was unlawful or unfair, the decision would be set aside and sent back for further review. The Court explained that if not satisfied the Tribunal’s decision was unlawful or unfair, the application would be dismissed with costs.

2. The Court explained it would have identified the evidence, then hear submissions from the applicant, then hear submissions from the solicitor for the first respondent and then give the applicant an opportunity to put submissions in reply. The applicant confirmed that he understood the nature of the hearing as explained by the Court.

Adjournment application raised from the bar table

1. The applicant then, from the bar table, asked for an adjournment, on the basis that he had a headache, for six weeks. The applicant handed up in support of the adjournment application a request for an extension of time for a hearing date document which referred to his mental health conditions deteriorating day by day and that he had been advised by a doctor to go for surgery and attached an MRI report and doctor’s recommendation for surgery. The applicant wanted a suitable date after February 2018. The MRI report does not identify any basis upon which the applicant was unable to meaningfully participate in the hearing today. A report by a Dr Wassif provides no basis upon which it could be said that the applicant was unable to attend the hearing today.

2. The Court sought to explore with the applicant whether there was any other ground upon which the applicant sought an adjournment. The applicant asserted that he was unable to meaningfully participate. The Court indicated to the applicant that this was his opportunity to participate in a hearing, and that he had already confirmed to the Court that he understood the nature of the hearing, as explained by the Court. Further, it is apparent on the material before the Court that the applicant prepared detailed written submissions in support of his amended application, approximately three weeks ago.

3. The first respondent opposed the adjournment. The Court was not satisfied on the material before it, in circumstances where the proceedings were commenced on 2 April 2017 where the applicant had filed an amended application on 26 June 2017 and filed submissions on 23 November 2017, that an adjournment was warranted in the interests of the administration of justice. Further, during the hearing of the proceedings, it was apparent that the applicant was able to interact and follow what was said by the Court, including going to pages in the Court book and articulating what it was that he asserted he wanted to adduce in relation to additional information concerning BNP and leaders of BNP. The Court is satisfied the applicant was able to meaningfully participate in the hearing before the Court.

4. The applicant also referred to having provided originals to the Tribunal during the course of the hearing, but that the Tribunal took copies. That is a matter referred to in the Tribunal’s reasons. Nothing said by the applicant from the bar table identified any jurisdictional error. The applicant was given an opportunity to adduce further information, and his migration agent provided submissions that were referred to and taken into account by the Tribunal. The Tribunal identified reasons why it declined to exercise its discretion not to seek information from other persons. Those reasons cannot be said to lack an evident or intelligible justification.

Consideration

Ground 1

1. In relation to ground 1, no matter was identified by the applicant, nor in the applicant’s particulars or submissions establishing any mistake or misunderstanding by the Tribunal in relation to the applicant’s claims. While I accept there is an immaterial error relating to a date, in paragraph 83 of the Tribunal’s reasons, it is apparent on a fair reading of the Tribunal’s reasons as a whole, that the Tribunal was referring to 2008.

2. No mistake or misconstruction of the facts has been identified by the applicant in relation to the Tribunal’s reasons. Further, no relevant consideration has been identified that the Tribunal failed to take into account, and no irrelevant consideration has been identified that the Tribunal improperly took into account.

3. The Tribunal referred to the applicant’s claims and evidence and made dispositive findings that were open to the Tribunal for the reasons given by the Tribunal. Those reasons cannot be said to be unreasonable, illogical or irrational. There was no claim identified that the Tribunal ignored. The applicant’s disagreement with the adverse findings in relation to his membership of the BNP does not identify any jurisdictional error. Equally, the applicant’s disagreement in relation to his claims concerning his brother X does not identify any jurisdictional error. On the face of the material before the Court, the Tribunal complied with its statutory obligations in the conduct of the review. On the face of the material before the Court, the Tribunal complied with the obligations of procedural fairness in the conduct of the review. No jurisdictional error as alleged in ground 1 is made out.

Ground 2

1. In relation to ground 2, a letter sent to the applicant inviting the applicant to attend a hearing identified that the Tribunal was unable to make a favourable decision on the information before it. It is apparent that the applicant had a real and meaningful hearing and an opportunity after the hearing to provide further information. No information was identified enlivening any obligation under s 424A of the Act.

2. On the face of the material before the Court, there is no basis to find that the applicant did not have an opportunity to articulate his claim in relation to his brother, and the adverse finding in relation to the Tribunal in that regard was open on the material before the Tribunal for the reasons given by the Tribunal. The applicant clearly had an opportunity to give evidence and put submissions in relation to the brother, and was alive to the credibility concerns raised by the Tribunal in respect of his claims.

3. The applicant’s disagreement with the adverse credibility findings does not identify any jurisdictional error. Further, the Tribunal took into account the applicant’s claim of being anxious in determining the applicant’s credibility and found that was not a satisfactory explanation for the credibility issues identified by the Tribunal. No jurisdictional error as alleged in ground 2 is made out.

Ground 3

1. In relation to ground 3, the Tribunal correctly identified the relevant law, and the Tribunal’s reasons reflect an orthodox approach, and cannot be said to be unreasonable, illogical or irrational. The Tribunal was entitled to take into account the adverse findings in respect of persecution in determining whether the applicant made out the criteria for complementary protection.

2. The Tribunal took into account the applicant’s mother’s letter, and made adverse findings in relation to the weight to be placed upon the document that were open to it. The Tribunal expressly referred to the guidelines, and there is no basis to find that the Tribunal overlooked those guidelines referred to in determining the credibility of the applicant, and in making the findings in respect of the applicant’s claims. It was a matter for the Tribunal to determine what weight to give documents before the Tribunal. No jurisdictional error as alleged in ground 3 is made out.

3. The applicant’s written submissions, in substance, identify his background and claims, and advance the same alleged errors as identified in the amended application. For the reasons given above, the written submissions do not identify any jurisdictional error by the Tribunal.

4. As the amended application fails to make out any jurisdictional error, the amended application is dismissed.

I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:

Date:  29 January 2018