BMX16 v Minister for Immigration

[2016] FCCA 3102

FEDERAL CIRCUIT COURT OF AUSTRALIA

BMX16 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 3102

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – Status – refugee status – refusal – no jurisdictional error – application dismissed – applicant pay the respondent’s costs.

Legislation:

Migration Act 1958 (Cth)

Applicant: BMX16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 555 of 2016

Judgment of: Judge Vasta

Hearing date: 14 November 2016

Date of Last Submission: 14 November 2016

Delivered at: Brisbane

Delivered on: 14 November 2016

REPRESENTATION

Counsel for the Applicant: Ms C. McConaghy

Solicitors for the Applicant: HOPGOODGANIM LAWYERS

Counsel for the Respondent: Ms A.L. Wheatley

Solicitors for the Respondent: CLAYTON UTZ

ORDERS

1. That the Application filed 21 June 2016 and Amended on 29 September 2016 be dismissed.

2. That the Applicant pay the First Respondents costs fixed in the sum of $7,206.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 555 of 2016

BMX16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

1. On 21 June 2016, the Applicant, BMX16, applied to this Court to judicially review a decision of the Administrative Appeals Tribunal, which in turn had affirmed a decision of the delegate of the Minister not to grant BMX16 a protection visa. By amended application filed on 29 September, other grounds were added, which can succinctly be summarised as this:

   a)that there was legal unreasonableness in what the Tribunal had done and had expected the applicant to do or say or recall;

   b)that there were irrelevant considerations made by the Tribunal in coming to their findings;  and

   c)there was illogicality in the way that they came to their findings.

2. The background of the matter is that the Applicant is a citizen of Bangladesh who was born in May 1988.  He arrived as an unauthorised maritime arrival on 6 May in Australia, and he applied for a protection class visa on 13 August 2013.  He provided a statutory declaration with his visa application, which provided details of his claim of the involvement of the Bangladesh Nationalist Party, the BNP.  On 30 December 2014, the delegate of the Minister refused the application for the protection visa. 

3. The next day, the Applicant made an application to review the matter by the Tribunal, which took place then some time later on 20 May 2016, and on 30 May the Tribunal effectively affirmed the decision.  What the Applicant claimed is that he had a well-founded fear of persecution based on these matters: 

   a)that the Applicant’s brother became the provincial leader for the BNP in their particular village and thereby became very active in the party, and that he, the applicant, has an association with, and supported, and was also involved with, the BNP, and thereby he faces persecution from the Awami League, which is the country’s current governing party. 

4. The Applicant claimed in about January 2013, the Awami League came to the family home in search of his brother.  His brother was not home, and no one in the family knew of his whereabouts, and so the persons from the Awami League beat the applicant and his siblings using wooden sticks.  The Applicant claims he was stabbed with a knife in his leg.  He recovered from that injury.  About a month later, the League returned to his family home. 

5. In July 2013, these persons returned demanding to see the brother, who again was not at home.  Again, the family was beaten with wooden sticks and chains. 

6. The Applicant then made arrangements to leave the country and ended up here in Australia.  The Applicant made quite a number of claims about what had happened, what his brother’s activities were and what his activities were.  The Tribunal looked at what it was that the Applicant was saying but compared and contrasted that with the original statutory declaration that accompanied his application for a protection visa. 

7. It is quite obvious, when one looks at that statutory declaration, that his real fear arose from his brother being the high-ranking official within the BNP (which was the focus for the Awami League) and that he was sort of collateral damage.  Nevertheless, it may well have been that that was a legitimate claim. 

8. However, once the Applicant got to the Tribunal, he, in effect, started talking about his own affiliation with the BNP, which was far greater than anything he had led any reader of the statutory declaration to believe at all.  There are a number of matters that he spoke about that the Tribunal simply did not accept. 

9. The Tribunal went through a number of matters with the Applicant and made allowance for a number of matters that could have, as it were, affected the interview. Such an example is a claim by the Applicant that he was “guided” by the delegate through his particular interview. But at the end of it, the Tribunal, after going through every part of this evidence in quite a thorough way, said this at paragraph 34:

   “At the beginning of the hearing, the Tribunal advised the applicant that a purpose of the questions it would be asking him was to assess his credibility.  The Tribunal advised him that although the delegate believed that he had supported the BNP, the Tribunal would have to determine for itself whether or not his account of his and his brother’s involvement with the BNP and the harm he claims ensued from that was credible.  Considered cumulatively, the concerns the Tribunal holds about the applicant’s credibility lead the Tribunal to find that he was not a witness of truth and the account of events on which his protection claims are based is false. 

   Accordingly, the Tribunal disbelieves the applicant’s evidence that his brother, the applicant himself and other family members supported, undertook activities for and were involved with the BNP, that the applicant or any member of his family were ever threatened or harmed in Bangladesh by people from the Awami League and that people from that party ever came to the applicant’s house at any time in Bangladesh. 

   The Tribunal also disbelieves claims the applicant made at the tribunal hearing that eight months earlier, the family lost contact with his older brother and that nine months before the hearing, one of his younger brothers left Bangladesh for his safety and went to live in Qatar because the Awami League kept coming to look for the older brother.”

10. The Tribunal said that in reaching these findings, it took into account his submissions and that of his representative at the interview with the delegate and to the Tribunal, and that the applicant has a low level of education. 

11. Even making allowance for that factor, the Tribunal still did not accept that if the Applicant was telling the truth, he would omit important evidence from his statutory declaration.  The Tribunal still remained concerned by the Applicant’s account of his remaining at home after the first visit by the Awami League, and the Tribunal was satisfied that its concerns about his credibility had not arisen because of his level of education. 

12. Having made a finding such as that, it is not surprising that the Tribunal then went on to say that they did not accept that he had the well-founded fear of persecution for the Convention reason or did not accept that there was a real risk of significant harm if he were returned to Bangladesh.  In very thorough submissions for the Applicant, Counsel has submitted to me:

    a)that it was unreasonable for the Tribunal to have expected the Applicant to leave his family home;

    b)that it was unreasonable for the Tribunal to say the Applicant could have left the family home after the first attack in January 2013;

    c)that it was unreasonable for the Tribunal to apply First-World logic to Third-World problems and context;

    d)that it was unreasonable for the Tribunal to expect the Applicant to know what BNP means in English because the Applicant did not speak in English;

    e)it was unreasonable for the Tribunal to criticise the Applicant for having given insufficient information in earlier statements;  and

    f)it was unreasonable for the Tribunal to dismiss the Applicant’s entire evidence,  or to have considered that the Applicant has “poisoned the well” on the basis of the Tribunal’s perceptions of his inconsistencies with respect to each of the specific issues. 

13. Whilst one can look at those complaints, the fact is that for there to be jurisdictional error, it must be that the findings that the Tribunal made were simply not open on the evidence.  It is not a case of whether the Tribunal, on that evidence, should have made another finding; it is a question of whether they could have made another finding.  The fact that the Tribunal has gone through the evidence as it has, illustrates that the finding that it did make was open. 

14. It may be that that is a finding that the Applicant disagrees with, but that is not the test; the test is whether it was open.  Having regard to what I had earlier said, it is quite obvious that the finding was open.  Therefore, with regard to ground 1, I do not find that there has been any jurisdictional error. 

15. As far as the second ground, irrelevant considerations, is concerned, what Ms McConaghy submitted to me was that the Tribunal applied irrelevant considerations in making its determination; that the Tribunal criticised the applicant for having failed to fully develop his claim that he was a target of the Awami League because of his own activities and criticised the applicant for having focused on the fact that the Awami League was seeking to persecute his older brother and that because of his association with his older brother, he was also a target.

16. The Applicant’s counsel submitted that it is irrelevant whether or not the Applicant was a target of persecution because of his brother’s activities or his own activities; it is relevant that the applicant claimed he was a target of violence and persecution of the Awami League whether because of his own activities and/or his brother’s activities. 

17. The guide for whether a Tribunal has taken into account irrelevant considerations is whether they have considered something that they are absolutely prohibited from considering.

18. Therefore, this aspect of the Tribunal looking at whether the Applicant was a target of persecution because of his brother’s activities or of his own activities is not a matter that the Tribunal were prohibited from looking at.  It actually was relevant to their determination as to whether there was a well-founded fear of persecution for a Convention reason.

19. Whether in fact the inquiry by the Tribunal ends up finding something of weight in the great wash-up of the fact-finding task is not the matter here.  The question is “was it a matter that the Tribunal was allowed to investigate?”. It clearly was a matter that they were allowed to investigate. Therefore, it could not be irrelevant. Therefore, this ground also fails.

20. The last ground is a ground of illogicality.  It is submitted to me that the Tribunal was illogical in its expectation that the Applicant can know the mind of the Awami League attackers.  The Tribunal criticised the Applicant for not having stated in his statutory declaration that the Awami League targeted the Applicant because of his own activities in addition to being associated with his brother and his brother’s activities. 

21. It is submitted that the Applicant is unable to get inside the mind of the Awami League attackers to know whether or not they were attacking him because of his association with his brother and his brother’s activities or because of his own activities or for a combination of both.

22. The aspect of illogicality, in my view, does not really arise because the point there is what the Tribunal were doing is again part of their fact-finding function. 

23. The Tribunal needed to work out what it was that the Applicant was actually saying so as to be able to get to a point where they could make a decision as to whether the fear, that the Applicant says that he had, is

    a)well-founded and

    b)for a Convention reason. 

24. It was not a case of trying to get into the mind of the Awami League; it is a case of whether or not he has been consistent in his claims.  Therefore, I do not find that there has been any illogicality, and therefore this ground also fails. 

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date:  12 December 2016