BNV16 v Minister for Immigration

[2020] FCCA 403

FEDERAL CIRCUIT COURT OF AUSTRALIA

BNV16 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 403

Catchwords:
MIGRATION – Application for Protection Visa – Bangladeshi applicant – Awami League – credibility concerns – omission of the basis of protection claims from entry interview – application dismissed.

Legislation:

Federal Court Rules 2011 (Cth), r.36.03
Migration Act 1958 (Cth), ss.36(2)(aa), 424A, 476(1)

Applicant: BNV16

Fist Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1333 of 2016

Judgment of: Judge McNab

Hearing date: 12 February 2020

Date of Last Submission: 12 February 2020

Delivered at: Melbourne

Delivered on: 12 February 2020

REPRESENTATION

The Applicant in Person

Counsel for the Respondent: Ms Ward

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. The Application filed 23 June 2016 be dismissed.

2. The Applicant pay the costs of the First Respondent in the sum of $5,000.00.

3. The name of the First Respondent be changed to the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.

4. The time for filing any Notice of Appeal under Rule 36.03 of the Federal Court Rules 2011 (Cth) be extended to the date 28 days after publication of the settled written Reasons for Judgment, which were delivered orally.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1333 of 2016

BNV16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(REVISED FROM EX-TEMPORE REASONS)

1. By an Application filed on 23 June 2016, the Applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 30 May 2016.

2. The Tribunal, by that decision, affirmed a decision of the delegate (‘Delegate’) of the First Respondent (‘the Minister’) to refuse to grant the Applicant a Protection (class XA) Visa (‘Protection Visa’). This Application is brought pursuant to section 476(1) of the Migration Act 1958 (Cth) (‘the Act’).

3. The Applicant’s grounds of review are as follows:

   1. The decision of the Tribunal:

   (a) is affected by an error of law; and

   (b) denied the applicant procedural fairness.

   2. I have made an application for assistance through Victorian Legal Aid and am waiting for a decision.

4. The second ground is not a proper ground. Whilst the Applicant has not given any particulars of what he says the error of law is in ground 1(a), I have read the decision in question for the purposes of discerning whether there is any obvious jurisdictional error.

5. The Applicant appeared before the Court with the assistance of an interpreter from English to the Bengali language.

6. I asked the Applicant to put into his own words what he perceived the errors were in the Tribunal’s decision. He claimed that there was a problem with interpretation and that the interpreter failed to properly explain or interpret his evidence. He gave an example which he said amounted to a misinterpretation of a question as to whether or not he went to some particular place. The Court notes that this Application has been on foot since 2016. The Applicant has not sought to amend his Application or file any evidence in support of the claims regarding problems with interpretation before the Tribunal.

7. The Applicant made submissions before the Tribunal concerning interpretation before the Delegate and the final hearing of the Tribunal: [30] of the decision record.

Background

1. The background to this matter is accurately set out in the submissions filed on 12 February 2019 on behalf of the First Respondent:

   3. The applicant, a citizen of Bangladesh, arrived in Australia on 6 May 2013 as an irregular maritime arrival. On 28 August 2013, the applicant applied for the Protection visa.

   4. The applicant’s claims were set out in a statutory declaration accompanying the Protection visa application. He claimed to fear harm from the Awami League on the basis of his political opinion as a member of the Bangladesh National Party (BNP) (the opposition party). The applicant also claimed to fear harm from gang members who thought he had assisted the police in the arrest of one of their members.

   5. On 7 October 2014, the applicant attended an interview before the Department.

   6. On 12 December 2014, the delegate refused to grant the applicant the Protection visa

   7. On 22 December 2014, the Applicant applied to the Tribunal for review of the Delegate’s decision. […]

   8. On 29 April 2016, the applicant, via his representative, provided written submissions to the Tribunal.

   9. On 4 May 2016, the applicant appeared before the Tribunal to give evidence and present arguments with the assistance of a Bengali interpreter and his representative.

   10. On 6 May 2016, the Tribunal sent a letter to the applicant pursuant to s 424A of the Act inviting him to comment on certain information that it considered would be the reason or part of the reason for affirming the decision under review.

   11. On 20 May 2016, the applicant’s representative provided a response to the s 424A letter [from the Tribunal].

   (citations omitted)

2. On 31 May 2016, the Tribunal affirmed the Delegate’s decision not to grant the Applicant a Protection Visa. The Tribunal did so largely on credibility grounds, finding that the Applicant’s evidence to the Delegate as to why he left Bangladesh was inconsistent with the evidence that he had given to the Tribunal.

3. In its decision, the Tribunal made repeated reference to the Applicant’s response to the section 424A letter, in particular at [29], [30], [36], [42] and [47]. The Tribunal did not accept that any issue with interpretation before the Delegate (or before the Tribunal) could properly explain the Applicant’s failures to advance before the Delegate the grounds that he relied upon before the Tribunal as to why he could not return to Bangladesh.

4. At [16] of its decision record, the Tribunal refers to the evidence that Applicant gave at his interview on 7 October 2014 that he:

   […] had no involvement with the BNP; and while he claims to have been assaulted in front of rallies, he left Bangladesh because the violence at those rallies prevented him from driving his rickshaw.

5. Also at [16], the Tribunal found:

   That evidence is inconsistent with the applicant’s claims to the Tribunal to have been involved with the BNP, including attending party rallies, to have been harmed by the Awami League for that reason and to have subsequently fled from Bangladesh in fear of harm from a criminal group after the applicant transported an undercover police officer in his rickshaw to a location where an operation against the group was conducted.

6. The Tribunal’s analysis of this aspect of the Applicant’s claims is detailed and, in the Court’s view, not attended with any obvious error or illogicality.

7. The Tribunal also rejected on credibility grounds claims made by the Applicant concerning his involvement with undercover policemen and a criminal gang at [28]-[30] of the decision.

8. Similarly, the Tribunal found it inconceivable that after a criminal gang had gone looking for him at his home, the Applicant thought the situation was not serious and had remained at home and resumed driving his rickshaw. This aspect of the Applicant’s claims was the subject of the section 424A letter. The Tribunal rejected the Applicant’s claims raised in response to the section 424A letter concerning this aspect of his claim.

9. In its decision, the Tribunal rejected other aspects of the Applicant’s claims regarding involvement with undercover policemen ([37]-[41]) and also rejected claims that the Applicant became involved in, or was subject to the attention of, the Awami League. In considering all the matters going to credibility, the Tribunal concluded that the Applicant was not a witness of truth and the account of events on which his protection claims were based were false: [49]-[50].

10. The Tribunal considered country information which was raised by submissions filed on behalf of the Applicant. The Tribunal found at [54] of the decision record that there was no credible evidence that the Applicant (or any member of his family) suffered harm in Bangladesh, and there was no credible evidence that anyone in Bangladesh seeks to harm them. The Tribunal found that there was not a real risk that the Applicant would suffer significant harm on return to Bangladesh and concluded that he did not satisfy section 36(2)(aa) of the Act.

Consideration

1. There is no error demonstrated in the Tribunal’s reasoning that it applied to the Applicant’s claims. The Tribunal’s decision outlines his claims in a comprehensive way and deals with each of them. It does so after having given the Applicant the opportunity to respond to concerns that the Tribunal had raised in the section 424A correspondence. It is also apparent that the Tribunal considered the Applicant’s response to the matters raised therein.

2. I can see no basis for a ground of review on the basis that the Applicant has not been accorded procedural fairness. He was invited to appear before the Tribunal. He appeared with a Bengali interpreter and his representative to assist him. He was put on notice of the matters that were exercising the Tribunal’s mind about credibility.

3. For those reasons, this Court will dismiss the Application filed on 23 June 2016 and these Orders will become operative upon the publication of reasons.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge McNab

Associate:  

Date:  26 February 2020