BNX16 v Minister for Immigration

[2017] FCCA 614

FEDERAL CIRCUIT COURT OF AUSTRALIA

BNX16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 614

Catchwords:
MIGRATION – Administrative review – Protection Visa refused – application dismissed – applicant pay respondent’s costs.

Legislation:

Migration Act 1958 (Cth)
Federal Circuit Court Rules 2001, r.13.03C(1)(e)

Applicant: BNX16

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 571 of 2016

Judgment of: Judge Vasta

Hearing date: 31 January 2017

Date of Last Submission: 31 January 2017

Delivered at: Brisbane

Delivered on: 31 January 2017

REPRESENTATION

The Applicant appearing on his own behalf before failing to return

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. That pursuant to r.13.03C(1)(e) of the Federal Circuit Court Rules 2001, the Application filed 23 June 2016 be dismissed.

2. That the Applicant pay the First Respondent’s costs fixed in the sum of $5,800.00.

NOTATION:

A.That the Applicant appeared at Court at 11.00am at which time he advised that he sent an email to the Registry attaching submissions to be filed and relied upon on this date, but had left printed copies of such in his car and could not retrieve them from his email. Arrangements were made for the matter to proceed at 12.30pm upon the Applicant advising that it would take him an hour round trip to return. The matter proceeded by way of default hearing at 12.40pm as the Applicant failed to return.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

No. BRG 571 of 2016

BNX16

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore)

1. By application dated 23 June 2016, the Applicant BNX16 seeks a review of the decision of the Administrative Appeals Tribunal that refused him a protection visa. 

2. The chronology is that the Applicant arrived in Australia on 6 May 2013 as an illegal maritime arrival and, on 7 August 2013, he lodged an application for a protection visa.  In that claim, he said that he and his father had been supporters of the Bangladesh Nationalist Party (“BNP”) for about 10 years, whereas his elder brother supported the Awami League (“AL”).  Now, it seems that this difference created a rift between the brothers and the elder brother was not happy that the Applicant refused to follow the Awami League.

3. The BNP were voted out of power and the Awami League came to power (and is currently in power), and they were in power at the time that the Applicant left Bangladesh. 

4. In a rather convoluted way, the Applicant claims that there was some land that was owned, partly by him, partly by his father, partly by the brother.  He and the brother built a house on the land that was, in effect, on the brother’s land, but also on part of the father’s land.  But, nevertheless, it was the parents who lived there.  The brother lived in another house about 100 metres away, and the Applicant himself lived in the capital, Dhaka, which is “some distance away”.

5. Nevertheless, the Applicant said that in 2011, he and his brother had quite a disagreement about the ownership of the house, and he said that the brother, together with five to seven AL members attempted to force him to leave the village.  In the fracas that resulted, the Applicant says that he was stabbed on his forehead and he fled and had to wait for five to six hours before coming back to the village to find that his brother and the AL supporters had left.  Notwithstanding that, he continued to live in the house for a further year and did not hear from his brother. 

6. In December 2012, the Applicant says that his brother, together with three or four AL members attended the house, armed with large knives and threatened to kill him and his family if they did not leave the village. 

7. The brother gave him two months to leave the village and the Applicant left Bangladesh, fearing for his wife, but his wife and child moved into part of the house that was owned by the Applicant’s father, which was not in dispute. The Applicant said that his wife and child were subsequently threatened with death if they did not leave the village, and they went to live with his wife’s parents, who apparently resided in the same village, in any respect.

8. With that sort of evidence, it is not really surprising that the Tribunal ended up finding that the Applicant did not meet the Convention criteria, nor the complementary protection criteria. 

9. The Tribunal had grave concerns as to the credibility of the Applicant, and that is why the visa was refused. The Tribunal did not accept any of the claims and did not find that Australia owed protection to the Applicant because of the Convention, nor should the complementary provisions be utilised.

10. The Applicant has listed five grounds of appeal.  I will read them into the record.

    “(1)   The Administrative Appeals Tribunal officer erred in law to come to a decision dismissing my application, not finding that the Department of Immigration and Border Protection did not consider that I was a victim of persecution for my political belief as an activist of the Bangladesh Nationalist Party prior to my departure from Bangladesh.

    (2)     The honourable Administrative Appeals Tribunal officer did not find there was a lack of procedural fairness of the Department of Immigration and Border Protection to consider that I was physically abused for my political belief and my life was at risk which forced me to leave Bangladesh for safety of my life.  I was not accepted by the Tribunal as a credible witness and refused my application.

    (3)     The Administrative Appeals Tribunal officer made error to find that the Department of Immigration and Border Protection failed to accept that the persecutions I experienced in Bangladesh and I shall be imprisoned and tortured if returned to Bangladesh.  The Tribunal refused my claim on the ground that I am not a credible witness for my claims, though I presented all relevant documents and evidences in support of my claims before the Tribunal prior to hearing.

    (4)     The Administrative Appeals Tribunal officer erred in not finding that the Department of Immigration and Border Protection erred in law, amounting to jurisdictional error in finding that I do not have a genuine fear of persecution for a Convention reason and I do not meet the criteria set out in section 36(2) of protection visa.

    (5)     The Administrative Appeals Tribunal officer erred in not finding that the Department of Immigration and Border Protection refused my application the ground that I would face punishment would be completely politically motivated.” 

11. Whilst those grounds are somewhat inelegantly expressed, it does seem to me that what the Applicant is really cavilling with is the conclusions made by the Tribunal.  The Tribunal found that that he was not a victim of persecution for his political beliefs.  The Tribunal found that he was not physically abused for his political beliefs and that his life was not at risk and that this was not a reason that forced him to leave Bangladesh. The Administrative Appeals Tribunal did not accept that the Applicant experienced persecutions and did not accept that he would be imprisoned and tortured if returned to Bangladesh. 

12. The Administrative Appeals Tribunal found that he did not have a genuine fear of persecution for a Convention reason and did not meet the criteria.  The Administrative Appeals Tribunal found that any punishment he receives would not be completely politically motivated. 

13. For any of those findings to amount to a jurisdictional error, it would have to be shown to this Court that the findings made by the Administrative Appeals Tribunal were simply not open on the evidence. 

14. It is not good enough to say that the Tribunal should not have made the findings that it made; it must be shown that the Tribunal could not have made the findings that it made. 

15. In this case, having gone through the matters, I am of the view that there is no jurisdictional error. 

16. I should add that this matter was listed to commence at 11 o’clock today.  There was an interpreter booked from 11 o’clock till 1 o’clock.  In the orders that I had made on 8 August 2016, I ordered that any written submissions made by the Applicant be filed in this court by 3 January 2017. 

17. At the outset of the hearing, I asked the Applicant whether there were any written submissions and why he had not given them to me.  He explained that he had composed the written submissions and he had emailed them to the Court.

18. I told him that there was no record of such and I asked him whether he had a copy to show me.  He then told me that he left the copy in his car.  I found that to be quite an inexplicable thing to do for a person who was genuinely coming to this Court with a genuine grievance that he wants to litigate for him to leave any material that he has in his car. 

19. It is not a matter where he came here and realised he had no material.  It was only when I asked him why he had not complied with that particular part of the order that he gave that excuse.  I stood the matter down. 

20. As Mr Kyranis has explained to the Court, the Applicant, through his interpreter, said that he left the papers in his car at a Woolworths and he would have to catch a train from the city back to another train station and get from that train station to the Woolworths to get the papers out of his car and then return back on the train.  He said that this would take about an hour. 

21. That was conveyed to me at just short of 11.30 and my associate had told the Applicant that the matter would be adjourned until 12.30.  I waited until 12.40.  The Applicant had not reappeared. 

22. For the reasons that this matter has been set down for today, I have some grave misgivings about whether any other material actually exists and, looking at the history of the matter, I am of the view that I should just proceed with the matter and proceed pursuant to r.13.03C(1)(e) of the Federal Circuit Court Rules 2001 and hear the matter on the merits. This is notwithstanding that the Applicant had been here earlier and has not returned.

23. As I have said earlier, I do not see that there is any jurisdictional error that has been established in this matter.  I therefore dismiss the application.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Vasta.

Date: 3 April 2017