BOO17 v Minister for Immigration

[2018] FCCA 99

FEDERAL CIRCUIT COURT OF AUSTRALIA

BOO17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 99

Catchwords:
MIGRATION – Protection Visa – whether Immigration Assessment authority’s decision affected by jurisdictional error – where no error established in Immigration Assessment authority’s decision – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Applicant: BOO17

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: BRG 328 of 2017

Judgment of: Judge Vasta

Hearing date: 16 January 2018

Date of Last Submission: 16 January 2018

Delivered at: Brisbane

Delivered on: 16 January 2018

REPRESENTATION

Counsel for the Applicant: Mr Burrows

Solicitors for the Applicant: Gopal Lawyers

Counsel for the Respondents: Mr Graycar

Solicitors for the Respondents: Minter Ellison

ORDERS

1. The Application filed on 7 April 2017 as amended on 7 November 2017 and 20 November 2017 be dismissed.

2. The Applicant pay the First Respondent’s costs of and incidental to the application fixed in the sum of $7,206.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 328 of 2017

BOO17

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore)

1. By application filed on 7 April 2017 and then amended on 7 November 2017, the Applicant, B0017, has asked this Court to review a decision made by the Immigration Assessment Authority (“the IAA”) on 8 March 2017.  That decision of the IAA itself affirmed a decision by the delegate for the Minister not to grant the Applicant a Safe Haven Enterprise visa. 

2. In short, the facts are that the Applicant is a citizen of Bangladesh.  He claimed that he lived in a village in Chandpur near Chittagong in Bangladesh and that he is a Muslim. 

3. He told the authorities that he was a member of the Bangladesh Nationalist Party (“the BNP”) and he was following in the footsteps of his father who was a member of the BNP.  He told the authorities that he was a person with a responsible position in the BNP. 

4. After the Awami League (“the AL”) came to power in December 2008, there was persecution of BNP members. There was a protest with about 50,000 people participating where there was violence.  The Applicant said that he was in the front lines of that protest and was injured and hospitalised.  He claimed that the police and the other persons aligned with the Awami League wanted to still harm him and they surrounded the hospital and, in effect, put him under siege, but the hospital staff were able to help the Applicant escape in the dead of night. 

5. The Applicant said that, in a later incident, he was approached by about six persons, all armed with knives, who wanted to kill him. This had followed a number of threats telling him that he needed to resign from the BNP and join the AL. 

6. After the incident with the persons with knives, for which he received an injury, being a cut to the finger, persons at the forefront of the BNP were able to organise bribes to be paid for him to get a passport. He left Bangladesh and went to Malaysia. 

7. He worked in Malaysia for two years before jumping on a boat and coming to this country, arriving in 2013 as an unauthorised maritime arrival.

8. He claims that if he is returned to Bangladesh he will suffer serious harm and/or be killed because of his affiliation with the BNP. 

9. The IAA looked through all of these claims quite thoroughly.  The problem that the Applicant had was that his story was inconsistent in many respects and inherently incredible in others.  This lead to the IAA assessing him as an unreliable and an untrustworthy witness whom they did not accept. Therefore, the IAA did not accept that there was any risk to him such that would fulfil either the refugee criteria or the complimentary protection criteria. 

10. These inconsistencies or inherent improbabilities include the description of his role of his father in the BNP. 

11. At his entry interview he described his father as being a member of the BNP for many years with no responsibility, but in his protection visa interview he spoke about his father’s activities and the role changed over the course of time from the father being a member to secretary and then to president. 

12. The Applicant’s own description of his position within the BNP also changed from being the treasurer or assistant treasurer to the person who had a role in looking after 10 villagers to a member of a police station which would be divided up into four areas and he had one of those four roles within that police station. 

13. The Applicant was asked to describe the flag of the BNP and, whilst not being able to describe it, he told the IAA that it was a beautiful flag. He was not able to draw the flag and not able to describe it any further other than it was a beautiful flag. This lead the IAA to question his true devotion because if this was the flag or the representation of the BNP that was, as he described it, so much a part of him, he should have been able to remember it. The excuse that he had been out of the country for six years and could only remember a couple of colours on the flag was not accepted, mainly because whilst he said he could remember a couple of colours, he didn’t say what colours they were. 

14. The protest, in which he said he was injured, he said, had occurred in mid-2009 during his entry interview.  By the time he had his protection visa interview he had changed that to, in effect, say that the protest happened a couple of months before he left Bangladesh.  That would put the protest in late 2010 or very early 2011 given he left Bangladesh in March of 2011.  That is significant as far as the timeline is concerned and creates a large discrepancy. 

15. He said again that after being injured, that his head was split open and he had to be stitched up.  He was taken to hospital by ambulance and that the police and AL supporters were surrounding the hospital intending to put protesters being treated there in jail, but that the hospital security helped them to escape. 

16. The IAA found that inherently improbable because if the police and AL supporters were acting with the authority that the Applicant claims they were acting, there was no need for them to surround the hospital; they would just simply walk in and arrest the persons who had been part of the demonstration. 

17. Again, the date of this is significant because if, as the Applicant said in his entry interview, this occurred in 2009 then according to his entry interview, nothing else happened after that to really put him in fear of his life other than just general threats or general unrest revolving around the BNP. This would mean that the aftermath of the protest wasn’t a significant risk to his life.  However, when the statement of his claims was submitted for his protection interview this date had moved to, as I say, late December, late 2010, early 2011. 

18. He also then gave some evidence that he had been sent harassment letters as secretary and a BNP member and there were demands for money.  None of that was said in his interview upon entry and it seems strange that this would happen in between the protest, in which he was injured, and before he left.  This is because, if he is to be believed about the protest, he was, in effect, wanted by these people and the claim that they would just send him letters or make a phone call does not make sense. 

19. He then said that shortly before he fled to Malaysia, while walking home from the market, he was attacked by five or six Awami League members holding knives and threatening that he must join the Awami League or he could be killed.  He said that these people were intent on killing him and when he tried to break away a knife sliced his finger and his screams attracted villagers and the attackers fled. 

20. Again, if these people were acting with the imprimatur of the Awami League and the government, the fact that screams of villagers would cause them to flee is somewhat incredible. It is also unbelievable that when there are five or six thugs holding knives, intent on doing the Applicant quite some harm because he will not join the AL, that the Applicant was not injured anything more than a cut to the finger. 

21. The fact that the Applicant then went to Malaysia and seemed to work there for two years was also a matter that the IAA looked at, because Malaysia is one of the countries in the region that attracts Bangladeshi migration workers, because of its comparative wealth and economic dynamism. 

22. The country information indicated that in 2013, some 352,000 Bangladeshis were working in Malaysia.  2013 was the year that the Applicant got on a boat and came to Australia.  That, just in and of itself, was something that caused the IAA to say that they were not satisfied that his reason for leaving Malaysia was because he was afraid of AL members who became aware of him. 

23. The IAA said this:

    “I accept, as stated in his entry interview, it was difficult for him to live in Malaysia, because he had no visa and was afraid of the police.”

24. Having made those findings of fact, and adjudged the claims that the Applicant had made, it is of very little surprise that the IAA did not find that he had a well-founded fear of persecution, nor that he met the complementary protection criteria. 

25. The IAA said this about his membership of the BNP, at paragraph 29:

    “29. I accept that the applicant is at most an ordinary member of the BNP. I accept that the applicant may have been verbally harassed by AL members in the past on his way home from party meetings; however, he was not seriously harmed.  The applicant has provided no evidence of being politically active whilst in Australia, but given his past support for the BNP, I am willing to accept that on return to Bangladesh, he might again continue his support as an ordinary member.  DFAT assesses that under the current AL government, BNP leaders and JI members are subjected to a high level of official discrimination during periods of heightened political tension, particularly at national elections.  DFAT understands that JI members are generally subjected to greater levels of harassment and intimidation than members of the BNP.  BNP supporters or members in rural areas are subjected to a low level of violence associated with AL extortion.  DFAT assesses that AL, BNP and Jamaat members are subjected to a low level of inter-party violence, but notes that, despite the increase in inter-party violence since 2013, the number of casualties remains relatively low in proportion to the size of these parties.  The applicant is not a BNP leader, and as the country information indicates, BNP supporters or members in rural areas are subject to low-level violence associated with extortion.  The applicant, prior to his departure from Bangladesh, resided and worked in Dhaka for six years.  I find that the applicant would return to Dhaka.  The applicant, as a BNP supporter or member, would not be subject to low-level violence associated with extortion in an urban environment.  I find that, given the number of casualties resulting from inter-party violence remains relatively low in proportion to the size of the political parties, there is no real chance that the applicant will be persecuted because of his membership to the BNP on his return to Bangladesh to either Dhaka or his village. 

    30. Furthermore, even if he returned to his village, I am not satisfied there is a real chance that the applicant would suffer serious harm.  The applicant has made no claims that he was extorted in the past, apart from his claims that AL members made demands for money, which I have not accepted…”

26. The grounds upon which this application is brought have been narrowed to this: 

    “1. The decision maker engaged in jurisdictional error in making a decision that was unreasonable:

    a. By placing too much emphasis on the arrival interview in particular taking into account the problems with interpretation at the SHEV interview (CB68);

    b. In rejecting the involvement of the Applicant in the BNP, including participating in the protest, and his degree of risk due to his membership, high-level or otherwise, of the party.”

27. It is trite to say that the way in which the ground is worded, really, is asking the Court to come to a conclusion that it was not open on the evidence for the IAA to come to the conclusion that the Applicant’s involvement in the BNP did not come with a real risk that he would be seriously harmed if he returned to Bangladesh. 

28. Whilst reasonable minds may differ, upon looking at the evidence, it seems to me that the conclusion that the IAA came to was one that was open on the evidence.  Notwithstanding that another adjudicator may have come to a different conclusion is not to the point. The only way in which there will be a jurisdictional error is if the decision on this particular aspect by the IAA could not ever have been made by an arbiter of fact.

29. Looking at all the evidence that was before the IAA, I have come to the conclusion that such a finding was open on the evidence. Therefore there is no jurisdictional error, and the application must be dismissed.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date:  29 March 2018