BNG16 v Minister for Immigration

[2017] FCCA 2314

FEDERAL CIRCUIT COURT OF AUSTRALIA

BNG16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2314

Catchwords:
MIGRATION – Application for judicial review of decision of Administrative Appeals Tribunal (Tribunal) affirming decision of delegate not to grant applicant a Protection visa – whether Tribunal considered applicant’s claims – whether applicant given fair hearing – whether the Tribunal acted unreasonably in not giving weight to documents on which applicant relied – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), s.499

Applicant: BNG16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1589 of 2016

Judgment of: Judge Manousaridis

Hearing date: 30 August 2017

Date of Last Submission: 30 August 2017

Delivered at: Sydney

Delivered on: 22 September 2017

REPRESENTATION

Applicant in person assisted by an interpreter.

Solicitor for the First Respondent:

Mr A Day of

DLA Piper

ORDERS

1. The application is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1589 of 2016

BNG16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant a Protection (Class XA) visa (Protection visa).

2. The applicant, a citizen of Bangladesh, arrived in Australia on 6 May 2013 as an unauthorised maritime arrival and, on 6 August 2013, he applied for a Protection visa.

Claims made in application for Protection

1. In a statement that formed part of his application for a Protection visa (Statement),[1] the applicant claimed he is afraid to return to Bangladesh because he and his family are supporters of the Bangladesh Awami League (AL), and his brother was a member and organiser for the Bangladesh Krishak League, a wing of the AL.

   [1] CB55-59

2. In around September 2001, just before the Bangladeshi Parliamentary elections, the applicant was socialising at a tea shop in a bazaar with about six or seven of his friends, all of whom are AL supporters. The applicant and his friends overheard six or seven members of the Bangladesh Nationalist Party (BNP) saying “bad things” about Sheikh Mujibur Rahman, “the father of Bangladesh”, who helped develop the AL. One of the applicant’s friends was offended by the comment and a “heated debate ensued”. The applicant’s friend walked to a sweet store next to the tea shop, picked up a Da (a curved blade), and threw it at the person who criticised Sheikh Mujibur Rahman hitting him and puncturing a vein in his arm causing him to bleed “quite badly”. The applicant claimed people started gathering due to the commotion, other BNP supporters in the vicinity came and picked up sticks, and the applicant and his friends ran away once a crowd started to form. One of the applicant’s friends, however, was unable to escape and was beaten by the BNP supporters. News of the incident spread and a group of AL supporters gathered in the bazaar to confront the BNP supporters resulting in a “large conflict”.  

3. The applicant claimed that in October 2001, about fifteen days after the incident at the tea shop, the Bangladeshi Parliamentary elections were held and the BNP came into power. The applicant claimed he got on a steam boat the following day and fled to Dhaka. Two of the applicant’s friends fled to Saudi Arabia and the remainder fled to Dhaka. The applicant claimed his family advised him that the day after he left a group of BNP supporters went to the applicant’s home and interrogated his father and brother about the applicant’s whereabouts. The applicant claimed the BNP supporters continuously threatened the applicant’s father and brother and they were unable to go to the markets without being verbally abused. The applicant’s sisters were sent to Barisal city for their safety.

4. The applicant further claimed that, at the end of 2001, his family noticed that some of the barren land they owned had rice crops growing on it and enquired how this came about. The applicant’s father learned that the neighbouring landowners, who were BNP supporters, were the people with whom the applicant had been in a conflict at the tea shop. The applicant’s father showed them “his papers” which indicated he was the owner of the land, but the BNP supporters told him they were taking the land from them anyway.

5. After the December 2008 Bangladeshi Parliamentary elections, as a result of which the AL came to power, the applicant thought it would be safe to return to his home town, but learned the MP for his locality was a member of the BNP. The applicant claimed the person injured during the incident at the tea shop was a senior member of the Bangladesh Jatiotabadi Jubodal, the youth wing of the BNP.

6. The applicant claimed he never felt safe or settled in Dhaka and felt his life was constantly in danger. The applicant arranged for an agent to take him to Malaysia.

7. The applicant claimed he fears he will be detained, tortured, extorted, abused and killed by members of the BNP and the Bangladeshi authorities if he is returned to Bangladesh. The applicant further claimed he fears he will be harmed because of his political beliefs and associations and his being a member of two particular social groups, namely individuals who have held information adverse to the interests of the BNP in Bangladesh, and relatively wealthy AL supporters.

Tribunal decision

1. The Tribunal accepted the applicant may have been present during an altercation between AL supporters and BNP supporters in a tea shop in 2001. The Tribunal, however, did not accept the applicant’s claims he was of ongoing interest to BNP supporters in his area because of the incident or that his family were threatened, subjected to extortion, or otherwise harmed because of the incident.[2]

   [2] CB230, [75]

2. The Tribunal did not accept the applicant is at risk of any harm because he has supported the AL in the past. The Tribunal did not accept the applicant’s family encountered problems living in their home area because of the applicant’s claimed political profile. The Tribunal so found because the applicant’s parent’s remained living in their home village which suggested they are not at risk of serious harm or significant harm there.[3] The Tribunal also found the applicant had not plausibly explained why his father, whom the applicant claimed is still in possession of the title deeds to the land, could not recover the land he claimed was illegally taken from him by BNP supporters, given the AL had come to power.[4]

   [3] CB232, [86]

   [4] CB231, [82]

3. The Tribunal did not find credible the applicant’s claims that his family were threatened and subjected to extortion and harassment after the applicant left his home village.[5]

   [5] CB231, [82]

4. The Tribunal did not accept there is a real chance the applicant will suffer harm of any type because he has supported AL in the past,[6] or because of his membership of a particular social group of “relatively wealthy Awami League supporters”. [7]

   [6] CB235, [97]

   [7] CB235, [98]

5. Finally, the Tribunal did not accept there is a real chance the applicant will face serious harm or significant harm if he returns to Bangladesh because he will be identifiable as a failed asylum seeker.[8] The Tribunal so found because the applicant left Bangladesh legally using a valid passport,[9] and, on the evidence before it, the Tribunal was not satisfied there is a real chance the laws that prohibit illegal departure would be enforced against the applicant on his return to Bangladesh.[10]

   [8] CB235, [99]

   [9] CB236, [100]

   [10] CB236, [101]

Grounds of application

1. The amended application contains four grounds of review, each of which is supported by relatively detailed particulars. The applicant also filed written submissions that repeat the grounds and particulars stated in the amended application.

2. The applicant, who is not legally represented, did not at the hearing before me address the grounds stated in the amended application or the written submissions. He did make submissions, however, about one aspect of the Tribunal’s decision, namely, its rejection of the authenticity of a document that purported to be the applicant’s birth certificate.

3. I will first deal with the grounds stated in the amended application and then the submissions the applicant made at the hearing.

First Ground

1. The first ground of the amended application is:

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

2. This ground is supported by seven paragraphs of particulars. These are a follows:

   a)The first paragraph (being numbered paragraph 2 of the grounds of application) states that the applicant’s “claims fall within the scope of the Refugee Convention for reasons of his membership of particular social group as a returnee from western country and his imputed political opinion”.

   b)The second paragraph (being numbered paragraph 3 of the grounds of application) claims the Tribunal failed to take into account the applicant was a member of the following particular social groups: (i) individuals who have held information adverse to the interests of the BNP in Bangladesh; (ii) relatively wealthy AL supporters; and (iii) a failed asylum seeker.

   c)The third paragraph (being numbered paragraph 4 of the grounds of application) refers to the submissions the applicant’s representative made to the Tribunal.[11] This paragraph states the applicant claimed that as an AL supporter, he will be compelled to bring to light the political harassment that he and his family have suffered at the hands of the BNP, and that the applicant’s “attention”, by which I assume the applicant meant to say “intention” is to “increase the Awami support base and expose the activities of BNP members” and, therefore, the applicant “would be compelled to speak to the media and public about his knowledge about the activities of BNP members”.

   d)The fourth paragraph (being numbered paragraph 5 of the grounds of application) refers to the applicant’s stating to the Tribunal that he “used to do politics” and, although the AL are in power in his area, the people from BNP are very aggressive towards members of the AL.

   e)In the fifth paragraph (being numbered paragraph 6 of the grounds of application), the applicant refers to the answers he gave to the Tribunal’s questions (as recorded in paragraph 49 of the Tribunal’s reasons) about whether he had any problems living in Dhaka.

   f)In the sixth paragraph (being numbered paragraph 7 of the grounds of application), the applicant repeats the substance of what he put to the Tribunal, namely, that BNP supporters used to threaten the applicant continuously, they threatened the applicant’s parents, the BNP took away their land, and that the applicant’s family could do nothing, even though the AL was in power.

   [11] CB121-150

3. The applicant completes the particulars as follows:

   The applicant believes that the Tribunal misconstrued the facts and did not understand that political environment and culture of Bangladesh.

4. All but one of these paragraphs repeat the substance of the claims the applicant made before the Tribunal. To the extent the applicant intends to submit the Tribunal did not consider these claims, the applicant’s submission cannot be accepted. The Tribunal asked the applicant whether he had any problems while living in Dhaka, whether he had been harmed during the ten years he had spent in Dhaka,[12] why the applicant’s family did not complain to the authorities, and whether the applicant’s father had attempted to reclaim his land, given he still held “title papers”.[13] The Tribunal put to the applicant that it was not clear why the applicant would personally be of any adverse interest to anyone in the BNP, given that the applicant had left his village after the teashop incident where someone else wounded a BNP supporter, and that he remained in Bangladesh for over a decade after that incident;[14] that the applicant’s family, all of whom the applicant claimed were AL supporters, were still living in the applicant’s local area;[15] that in the decade the applicant was in Dhaka he was not “actively involved in the BNP [sic]”; and that it did not seem likely the applicant would be motivated to get involved in politics if he went back to Bangladesh.[16] Further, the Tribunal considered, but rejected, the applicant’s claims based on his being harmed because he held information that was adverse to the BNP’s interests,[17] the applicant’s being a wealthy AL supporter,[18] and the applicant’s being a failed asylum seeker.[19]

   [12] CB225, [49]

   [13] CB225, [50]

   [14] CB225, [51]

   [15] CB225, [52]

   [16] CB226, [54]

   [17] CB233, [90]-[92]

   [18] CB232-233, [87]-[89]

   [19] CB235-236,[99]-[101]

5. The one paragraph in the particulars to the first ground of application that does not appear to repeat a claim the applicant made before the Tribunal is that the applicant intended to “increase the Awami support base and expose the activities of BNP members” and, therefore, the applicant “would be compelled to speak to the media and public about his knowledge about the activities of BNP members”. That is not a claim the applicant made before the Tribunal. In any event, the Tribunal considered whether the applicant would engage in political activity if he returned to Bangladesh. The Tribunal found that, based on the applicant’s evidence at the hearing, it was not satisfied the applicant was actively involved in politics in Dhaka. The Tribunal further concluded, however, that, even if the applicant occasionally attended AL meetings or programs in Dhaka and that, on his return, he would continue to engage in informal activity in support of the AL, it was not persuaded there is a real chance the applicant would be subjected to harm of any type simply because the applicant may informally support the AL.

6. Finally, there is no rational support for the applicant’s submission that the Tribunal did not understand the political environment and culture of Bangladesh if, by that submission, the applicant intends to submit the Tribunal did not consider those matters. The Tribunal did consider those matters. The Tribunal considered country information that had been provided by the applicant’s representatives about the volatile and often violent political environment in Bangladesh both in election and non-election periods.[20]

   [20] CB231, [79]

7. Ground 1, therefore, fails.

Second ground

1. The second ground of the amended application is as follows:

   [8] The applicant claims that he was denied natural justice and procedural fairness when the hearing was not conducted in freely and fairly. (Section 424 of the Migration Act)

2. In the particulars the applicant says that at the hearing the applicant continually claimed to have severe mental stress, and “did not like to be pressed to continue hearing”. The applicant further says that “in the circumstances of mental stress he was unable to present oral evidence”.

3. The particulars suggest the applicant claims that he informed the Tribunal that he did not want the hearing to continue because he claimed he was mentally stressed. The evidence does not support that claim. The applicant’s representative attended the hearing before the Tribunal,[21] and the Tribunal’s reasons refer to “an adjournment so the applicant could speak privately with his representative”.[22] The Tribunal further noted that, when the hearing resumed, the applicant’s representative made submissions about identity documents (which I will discuss below). The Tribunal’s reasons for decision do not refer to the applicant or his representative requesting an adjournment. Further, the applicant’s representative provided further submissions after the hearing.[23] Those submissions do not refer to the applicant’s requesting an adjournment because he suffered severe mental stress. The submission did claim that the applicant “was unable to properly instruct his representative during his hearing, owing to the lack of an interpreter during his natural justice break”, but the representative addressed that asserted problem by setting out further information. [24]

   [21] CB189

   [22] CB227, [63]

   [23] CB198

   [24] CB212

4. There is nothing in the material before me that suggests the Tribunal did not accord the applicant procedural fairness during the hearing. On the face of the Tribunal’s reasons, the Tribunal put to the applicant for the applicant’s comment all the matters on which the Tribunal relied in not accepting the applicant’s claims.

5. Ground 2, therefore, fails.

Ground 3

1. The third ground of the amended application, which overlaps with the second ground, is as follows:

   [10] The applicant claims he was denied natural justice and procedural fairness when he was forced to continue hearing.

2. The particulars to this ground claim the applicant’s “weakness to present evidence in sequence became a serious concern about the applicant’s credibility”, and the Tribunal concluded the applicant “has not told the truth in relation to crucial aspects of his claim”, and that the “whole hearing was conducted to destabilise the credibility of the evidence”. The applicant also claims that whatever he submitted to the Tribunal was true and correct to the belief of the applicant, and that the Tribunal was unreasonable in concluding that the documents the applicant submitted were not authentic.

3. There is no evidence to suggest the applicant was unable to give his evidence in sequence, or that the Tribunal conducted the hearing with a view to destabilising the applicant’s credibility. The Tribunal’s reasons for decision set out in detail the questions the Tribunal asked of the applicant. They do not suggest any unfairness in the method of questioning. On the contrary, the questions manifest the Tribunal’s examining in detail each of the applicant’s claims, and putting to the applicant the matters that caused the Tribunal concern for the purpose of giving the applicant an opportunity to address those concerns.

4. It is true the Tribunal did not accept some parts of the applicant’s evidence as credible. For example, although the Tribunal was prepared to accept the applicant’s claims about the teashop events,[25] the Tribunal did not find credible the applicant’s claims that he and his family were threatened and subjected to extortion after the applicant left his village. It did not find the applicant’s claim credible because the applicant’s family remained in their local area, they provided financial support to the applicant when he was in Dhaka, the applicant’s father retained possession of the title deeds to the land and the applicant had not plausibly explained why his father could not recover the land the applicant claimed had been illegally taken by BNP supporters, and the AL is now in power the applicant’s family local area.[26] These are matters on the basis of which it was reasonably open to the Tribunal not to accept as credible the applicant’s claims his family were threatened and subjected to extortion after he left his village for Dhaka.

   [25] CB231, [80]

   [26] CB231, [82]

5. It is also true that the Tribunal found the documents the applicant provided did not assist the applicant’s case, and that the Tribunal relied in part on country information that indicated that fraudulent documentation is readily available in Bangladesh.[27] But that is not the only matter on which the Tribunal relied. One of the documents the applicant submitted purported to be his birth certificate that on its face was issued in 2011.[28] The document the applicant submitted, however, contained the boat identity number of the boat on which the applicant travelled to Australia. The Tribunal noted “it was difficult to explain how a boat identity number appeared on a document that was issued in 2011”.[29] It was reasonably open to the Tribunal, for the reasons it gave, not to place weight on the documents the applicant submitted to the Tribunal and to the delegate.

   [27] CB234-235, [96]

   [28] CB60

   [29] CB227, [63]

1. Ground 3, therefore, also fails.

Ground 4

1. The fourth ground of the amended application is:

   [11] The applicant claims that the AAT’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.

2. After setting out the substance of the claims for protection the applicant made before the Tribunal, the particulars claim the Tribunal did not “follow the Rules of real risk Test of Persecution and harm”, and that the Tribunal did not consider all of the information that was before it in assessing the risk of future harm. After referring to and setting out excerpts from “the department’s complementary protection guidelines released on 24^th March 2012”, the applicant claims as follows (emphasis in original):

   In the present case the country information and the claims listed above support a finding that the mistreatment or harm which the applicant would face in the event he is removed from Australia would amount to torture, cruel or inhumane treatment or punishment or degrading treatment or punishment”.

3. I do not accept these claims or submissions. The Tribunal set out in its reasons the relevant provisions and principles it was required to apply when assessing the applicant’s claims, [30] and it referred to Ministerial Direction No.56 made under s.499 of the Migration Act 1958 (Cth). The Tribunal considered the applicants evidence about what he claimed occurred to him and his family in Bangladesh before he left that country, made findings about those claims, referred to country information, and, on the basis of its findings and the country information it accepted, the Tribunal considered and answered the questions it was required to consider and answer, namely, whether there was a real chance the applicant would suffer serious harm if he were to return to Bangladesh now or in the reasonably foreseeable future, and whether the applicant had a well founded fear of persecution because of his political opinions or any other Convention reason; or whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal from Australia to Bangladesh, there is a real risk the applicant will suffer significant harm for any of the reasons the applicant claimed he would be subjected to harm.

   [30] CB218-220, [4]-[17]

4. Ground 4, therefore, also fails.

Submissions at hearing

1. At the hearing, the applicant explained to me what accounted for the presence on the birth certificate he had submitted to the Tribunal of the number that identified the boat on which he arrived in Australia. The applicant said that this had been placed on a birth certificate the applicant’s father held in Bangladesh after the applicant had been informed by his case worker that he needed to obtain his birth certificate and, in response to that advice, the applicant requested his father send to him in Australia the applicant’s birth certificate. The applicant’s father included on the birth certificate the identification number of the boat to signify that the birth certificate related to the applicant.

2. The applicant produced what he claimed to be another version of the birth certificate which he claimed before me contained the same information as the birth certificate that was before the Tribunal.[31] The applicant confirmed to me that the new birth certificate is not a document that was submitted to the Tribunal. For that reason alone, it is irrelevant to whether the Tribunal made any jurisdictional error.

   [31] The new birth certificate is annexed to the applicant’s written submissions. I admitted the document as exhibit “A”, subject to relevance.

3. Although not relevant to what I am required to decide, I note that before the Tribunal the applicant’s representative gave an explanation about how he obtained the birth certificate. The representative said the applicant acquired a birth certificate in late 2011 because it would be required for the issuing of a passport. The representative further said that the “reissued certificate was corrected without the boat identity number”. The representative then “clarified she was referring to a corrected citizenship certificate, dated 12 January 2016, which was then submitted”.[32] This appears to be a reference to documents that purported to be citizenship certificates in relation to the applicant. One is dated 27 May 2013 and contains a number identifying the boat on which the applicant arrived in Australia[33] The other is dated 12 January 2016, and does not contain the number of the boat.[34]

   [32] CB227, [63]

   [33] CB61

   [34] CB194

4. Nothing the applicant submitted, therefore, discloses any jurisdictional error by the Tribunal.

Disposition

1. Given the applicant has not succeeded on any of the grounds set out in the amended application, I propose to order that the application be dismissed.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Date: 22 September 2017