BMO15 v Minister for Immigration

[2015] FCCA 2909

FEDERAL CIRCUIT COURT OF AUSTRALIA

BMO15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2909

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migrants and Refugees Division) – Protection (Class XA) visa – whether the Tribunal failed to consider an integer of the applicants claims – whether the Tribunal failed to consider the applicant’s claims and evidence cumulatively – whether the Tribunal applied the correct test – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss. 36(2)(a), 36(2)(aa), 424, 476

Applicant: BMO15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2053 of 2015

Judgment of: Judge Street

Hearing date: 28 October 2015

Date of Last Submission: 28 October 2015

Delivered at: Sydney

Delivered on: 28 October 2015

REPRESENTATION

The Applicant appeared in person

Solicitors for the First Respondent:

Mr D McLaren

Minter Ellison

ORDERS

1. The amended application is dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the amount of $6000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2053 of 2015

BMO15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in relation to a decision of the Tribunal made on 26 June 2015 affirming the decision of the delegate not to grant the applicant a protection visa. The applicant was found to be a national of Bangladesh, and that country was also treated at the receiving country for the purposes of consideration of complementary protection.

2. The applicant arrived in Australia on 15 June 2012 as a direct offshore entry person.  The applicant claimed to fear harm or persecution due to his imputed political opinion and as a member of a particular social group, namely, people who refuse to join a political party in Bangladesh.  The applicant claimed to have left Bangladesh because he claimed he would have been required to join one of the Bangladesh political parties and involve himself in fighting between rival parties. 

3. A group of unidentified people whom the applicant suspects were members of the underground political party called the Sarbahara Party kidnapped the applicant in December 2011 and took him to a field at his home for two hours and asked him to join the Awami League party and threatened to kill him if he did not join.  The applicant said he agreed to join the Awami League party but then decided he had to leave, as otherwise he would have to follow the party’s commands if he stayed and would have had to harass and make trouble for supporters of the other party, including some of his family members. 

4. The applicant said that after he had left Bangladesh, somebody came looking for him and destroyed some of his family’s crops, and claimed there was violence in his home village over political issues and some people were killed there.  The applicant claimed that his family fled for two or three months, and on return their crops were destroyed again, and the applicant claimed that his family had to pay a bribe to the BNP opposition to return to the land. 

5. The applicant fears returning to Bangladesh, as he fears he will be killed or continually harassed by these parties because of his imputed political opinion if he joins one party or does not join the other, and as being a member of a particular social group as a person who refuses to join one of the political parties. 

6. On 20 August 2015, a Registrar of the Court made orders providing an opportunity for the applicant to file an amended application, affidavit evidence and submissions.  The applicant filed an amended application that raises the following grounds:

   1. The Refugee Review Tribunal made a jurisdictional error when it failed to consider each integer of his claim and or failed to taken into account the whole of the oral and written evidence in determining whether he feared persecution claimed amounted to persecution and serious harm within the meaning ofs 91 R of the Migration Act.

   Particular : The applicant gave the evidence why he is targated by the Awami League Party workers ad supporters and why the Awami League Party wanted him to join the the party and work for them. It is obvious that he was very popular man among the Muslim community as well as in the Hindu population in that area. He was one being a Muslim fouhght for the Hindu community. That was one intger why the Awami League Party wanted him to join. The Tribunal failed to account this matter and mistook the facts.

   The applicant claims that the Tribunal failed to consider more recent information with regards to the attacks on the BNP supporters by the member and supporters of the Awami League Party.

   The applicant claims that not considering the recent information about the atrocities committed by the Awami League on the BNP supporters is an error or a path leading to error , error is itself is failure to perform the statutory task imposed on the Tribunal by the Migration Act.

   In a case Minister for Immigration and Border Protection v MZYTS (2013) 136 ALD 547 at 34 Hon Judge Kenny, Griffith and Mortimer JJ stated: the task involves:

   [F]irst, correct understanding of the basis on which the visa applicant says she or he has fear of persecution in he or his country of nationality and second, a correct understanding of how, in respect

   Of each of the of the bases articulated, it is to be determined whether that fear is objectively well founded

   That task could not be lawfully undertaken without “a consciousness and consideration of the submission, evidence and material advanced by the visa applicant most likely to give the Tribunal a accurate picture of the ongoing circumstances on the ground in Zimbabwe for him if he were to be returned there” [38]

   2. The Tribunal made a jurisdictional error when it discared all the oral and written submission without giving any solid evidence of cumulative credibility concern in the finding of reasons. d mind.

   Particular :

   In the decision the RRT found that there were some inconsistency between he gave at the Tribunal hearing and his written claims and the statements he made at the protection interview. at Immigration Detention Centre , which was included in the Departmental file . Applicant claims that he misunderstood and responded to the questions posed by the Tribunal in a situation of nerviousness and distress . The Tribunal ignored the actual court proceeding process .

   It is natural when the applicant is called for expansion of his grounds in hearing the applicant gives more evidnce to justify his/ her claim and during that time it is natural that being a non-legal person speaks whatever comes in mind at the hearing time. The Tribunal totally misconstrued the facts . Whatever the applicant said in support of his claim was true . The Tribunal did not assess the applicant's evidence according to section 424 of the Migration Act.

   2. The Refugee Review Tribunal made a jurisdictional error when it did not apply real test of persecution and harm according to the Migration Act

   Particulars

   The Tribunal raised several irrelevant issues to discredit the oral and written evidence of the applicant . He said that he has no reasonable protection from the local authorities . He claims that the RRT did not account the applicant's claim that there is no reasonable protection from the Bangladesh Government. ..

   The Tribunal failed to apply the correct test in relation to the complementary Protection Provision contained in section 36(2)(aa) of the Migration Act 1958. The Tribunal made a jurisdictional error when it did not follow Rules of Real Risk Test or persecution and harm.

   Particulars

   The RRT ignored the relevant consideration related with complementary Protection set out ins 36(2) (aa).

   The harm or the mistreatment feared by the applicant on return is for reason of one or more of five grounds of recognized in the Refugee Convention.

   Applicant's fear of harm is well-founded and that there is a real chance that he will suffer persecution if he returned to Bangladesh. As the applicant stated in the Primary application if he is compelled to go back to his country he will be k1lled by the Awami League Party workers and he has genuine protection from Bangladesh Governement as Awami League Party Govenring the nation.

7. In accordance with the statutory regime, a letter by the Tribunal dated 9 December 2014 invited the applicant to appear on 2 February 2015 to give evidence and present arguments.  The applicant appeared on that date by video to give evidence and present arguments and was assisted by an interpreter and was represented, albeit by telephone, by his registered migration agent.  Prior to the hearing on 28 January 2015 submissions were provided to the Tribunal on behalf of the applicant, and those submissions were clearly referred to by the Tribunal in para.34, as well as para.35.

8. The submissions included reference to country information and advanced reasons why it was said the applicant had not embellished his claims.  The Tribunal set out the relevant law in its reasons in paras.18 to 20, relevantly identifying the real chance test in relation to whether the applicant had a well-founded fear of persecution, as well as identifying, in relation to complementary protection, the issue of whether there would be a real risk that the applicant will suffer significant harm.

9. The Tribunal made adverse findings in relation to the applicant’s credibility, relevantly, in para.52, as follows:

   52. For all the above reasons, considered cumulatively the Tribunal does not find the applicant to be a credible, truthful and reliable witness. The Tribunal is of the view that the applicant has fabricated claims and concocted evidence to achieve an immigration outcome.  On the basis of the above cumulative credibility concerns the Tribunal therefore does not accept that the applicant is a credible witness and cannot be satisfied on the evidence before it that the applicant is a truthful witness as to his claims.

10. Relevantly, the Tribunal found:

    62. Similarly based on my findings above and on the information before me I am therefore not satisfied on the basis of the evidence before me that there is a real risk that he will suffer significant harm on his return to Bangladesh at the hands of the Awami League, BNP or any other political party or anyone acting for them as he is not a member of a political party or refuses to join one or because he will be forced to join the BNP or Awami League.

    63. It follows from the credibility findings above the Tribunal does not accept were he to return to Bangladesh that either he or his family will have to pay a bribe to the Awami League or BNP or any political party, that either he or his brother will not be paid wages as they did not join a political party or bribe to a political party or that the wages he earns are not sufficient to support the family. It follows from the evidence above it does not accept his brother, [X] is not working and that he will have to solely provide for the family. It follows from the credibility findings above that I do not accept that these reasons or any other will threaten his ability to support and sustain himself, including his family, in Bangladesh. I  therefore do not accept that the applicant will be unable to subsist in Bangladesh analogous to the examples of serious harm outlined in Section 91R(2) nor that he will face such difficulties on his return, which would constitute serious harm under s.91R(1)(b). Further based on the evidence before me I do not accept that the difficulties he claims he will face this regard meets the definition of ‘Significant harm’ as exhaustively defined in s.36(2A) and s.5(1).

    64. It follows the Tribunal is not satisfied that he faces a real chance of persecution involving serious harm as he will be unable to subsist or support and sustain himself, including his family, were he to return to Bangladesh in the reasonably foreseeable future as he will not join a political party, due to the level of bribes he will have to pay, as wages are not paid to those who are not members of political parties or if he had to join a party he would not be able to earn money to support himself and his family or for any of the reasons he claims.

    65. It follows on the basis of its findings of fact that I do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Bangladesh, there is a real risk that he will suffer significant harm as defined in subsection 36(2A) of the Migration Act as he will be unable to subsist or support and sustain himself, including his family, were he to return to Bangladesh in the reasonably foreseeable future as he will not join a political party, due to the level of bribes he will have to pay or if he had to join a party he would not be able to earn money to support himself and his family or for any of the reasons he claims.

    …

    67. It follows on the basis of its findings of fact that I do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Bangladesh, there is a real risk that he will suffer significant harm as defined in subsection 36(2A) of the Migration Act from hooligans, members of BNP or Awami League or anyone else because of his claimed involvement in working with and protecting Hindus.

    …

    69. … The Tribunal is therefore not satisfied on the evidence before that he faces a real chance of persecution involving serious harm for one or more of the Convention reasons were he to return to Bangladesh in the reasonably foreseeable future as the Awami League and BNP or any other political party clash politically and there is sometimes incidental or random violence as a result.

    70. On the basis of the independent information before it the Tribunal finds that such random and incidental violence as a result of political clashes or protests happens from time to time in Bangladesh and finds that it happens throughout the country as a whole and is not confined to any area. It is faced by the population generally and not the applicant personally. The Tribunal therefore finds that there is not a real risk that the applicant will suffer significant harm in Bangladesh as the risk is faced by the population of the country generally and is not faced by the applicant personally, as outlined in s.36(2B) of the migration Act.

    71. The Tribunals therefore does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Bangladesh, there is a real risk that he will suffer significant harm as the Awami League and BNP or any other political party clash politically and there is sometimes incidental or random violence as a result.

    Conclusions regarding the Refugees Convention

    72. The Tribunal has considered whether the combination of each of the individual claims raised by the applicant and his agent would together create a real chance of him being subjected to serious harm in Bangladesh in the reasonably foreseeable future.  Having carefully considered the cumulative effect of these factors and attributes in light of the information and evidence before it, and given its reasons in relation to each factor, the Tribunal does not accept that there is a real chance the applicant would face serious harm for these reasons if he returns in the reasonably foreseeable future. 

    73. Based on all the evidence before it, including the applicant’s claimed past circumstances and what is accepted of his current personal and family circumstances and profile in Bangladesh, the Tribunal is not satisfied that 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. It follows that the Tribunal is not satisfied that the applicant faces a well-founded fear of persecution in Bangladesh for a Convention reason in the reasonably foreseeable future. Accordingly, the Tribunal is not satisfied that the applicant is a refugee under section 36(2) (a) of the Act.

    Complementary Protection

    74. The Tribunal has also considered whether the applicant is eligible for complementary protection. Findings have been made above in this regard.  I have also considered the information as raised by the applicant’s representative at the Department interview, submissions and Tribunal hearing.

11. It was in those circumstances the Tribunal found that the applicant was not a person in respect of whom Australia has protection obligations and that the criteria under ss.36(2)(a) and 36(2)(aa) was not made out.

12. In relation to ground 1 of the amended application, it is clear from the findings referred to above in paras.61 and 62 that the Tribunal took into account the applicant’s claim of fear of being targeted by the Awami League party and that it cannot be said that this was an integer of the applicant’s claim that the Tribunal failed to address.  Insofar as ground 1 refers to alleged failure by the Tribunal to take into account more recent information, no such information is identified and it is clear from the Tribunal’s reasons, to which I have referred, that the country information provided in the applicant’s submissions was taken into account by the Tribunal. 

13. There is no substance in the assertion that the Tribunal failed to consider recent information and ground 1 fails to make out any jurisdictional error. 

14. Ground 2 is, in substance, an impermissible challenge to the adverse findings of credit by the Tribunal that were open on the material before the Tribunal. The Tribunal provided reasons for the adverse findings of credit and those adverse findings cannot be said to lack an evident and intelligible justification. It is also clear that the applicant’s credit was a live issue before the Tribunal and it is apparent from the Tribunal’s reasons that the Tribunal put to the applicant concerns in relation to the applicant’s credibility in relation to his claims and evidence. It is clear from the reasons of the Tribunal that the Tribunal had regard to the information provided by the applicant and to the country information referred to in the reasons by the Tribunal and there is no substance in the contention of any breach of s.424 of the Migration Act 1958.

15. In relation to ground 3, it is clear that the Tribunal correctly identified the real-chance test in relation to the issue of the applicant’s alleged genuine fear of persecution and that the Tribunal applied that test in the adverse findings, relevantly, in paras.72 and 73 that referred to real chance.  It is equally clear that the Tribunal identified the real-risk test in relation to significant harm in respect of complementary protection and that test was correctly applied relevantly in para.75 of the Tribunal’s reasons.

16. There is no substance in the assertion in ground 3 that the Tribunal failed to apply the correct test, either in relation to s.36(2)(a) or in relation to s.36(2)(aa). In substance, the particulars, which refer to the adverse findings in relation to complementary protection, appear to be an impermissible challenge to those adverse findings that were open to the Tribunal. Ground 3 fails to make out any jurisdictional error.

17. From the bar table, the applicant identified that he had not been believed by the delegate or the Tribunal and maintained that he told the truth and that it was very risky for him to go back and that his life would be at risk and that he would be killed.  The applicant maintained that he was not safe anywhere in his own country and that he wanted to help the government here and do something for other persons in his position. 

1. This Court does not have jurisdiction to make fresh findings of fact and is confined in relation to the application for relief to determination of whether or not there was a jurisdictional error by the Tribunal or a denial of procedural fairness in the conduct of the review.  Nothing said by the applicant identifies any arguable jurisdictional error or any arguable issue of denial of procedural fairness.  As indicated earlier in the reasons given, the issue of credit was an issue for the Tribunal to determine.  Nothing said by the applicant identified any arguable jurisdictional error.  The amended application is dismissed.

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

Associate: 

Date: 2 November 2015