BPG16 v Minister for Immigration
[2018] FCCA 3334
•21 November 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BPG16 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 3334 |
| Catchwords: MIGRATION – Migration Act 1958 (Cth) – application for judicial review of a decision of the Administrative Appeals Tribunal affirming a decision of the Delegate of the Minister for Immigration and Border Protection not to grant a Protection visa to the applicant – none of the grounds asserted by the Applicant established – no jurisdictional error or procedural unfairness by Administrative Appeals Tribunal – application for judicial review dismissed. |
| Legislation: Migration Act 1958 (Cth), s.499 |
| Cases cited: AWA15 v Minister for Immigration [2018] FCA 604 AZU15 v Minister for Immigration & Border Protection (2016) 240 FCR 143 CPW16 v Minister for Immigration & Border Protection [2017] FCA 1210 MZZZW v Minister for Immigration and Border Protection (2015) 234 FCR 154 SZLYT v Minister for Immigration and Citizenship [2009] FCA 76 WZAVX v Minister for Immigration and Border Protection [2016] FCA 411 |
| Applicant: | BPG16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1655 of 2016 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 8 November 2017 |
| Date of Last Submission: | 29 November 2017 |
| Date Reserved: | 13 December 2017 |
| Delivered at: | Sydney |
| Delivered on: | 21 November 2018 |
REPRESENTATION
| The Applicant appeared in person. |
| Counsel for the First Respondent: | Ms E. Cheesman |
| Solicitors for the First Respondent: | Clayton Utz |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
The Application filed in this Court on 28 June 2016 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1655 of 2016
| BPG16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant in this proceeding is a male citizen of Bangladesh aged 32 years, having been born on 4 May 1986.
By Application filed in this Court on 28 June 2016 he seeks to quash and have re-determined the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 31 May 2016 which affirmed the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 6 January 2015 refusing to grant to him a Protection (Class XA) (Subclass 866) visa (Protection visa).
Background
The Applicant arrived in Australia on 30 July 2013 as the holder of a Work and Holiday (Temporary) (Subclass 462) visa (Subclass 462 visa) valid until 29 July 2014, and lodged his application for the Protection visa on 22 July 2014 via his registered migration agent.
It would appear from the evidence before me, including the affidavit of Justin Matthew McGovern sworn 29 November 2017 which I directed to be filed and served explaining the position, that subsequent to the hearing before the Tribunal referred to below the Protection visa application and one letter which had been submitted by the Applicant to the Department had been lost. Most of the Protection visa application was obtained for the purposes of this proceeding from the Applicant’s registered migration agent, but not the Statement of the Applicant which set out his claims to protection and which formed part of his Protection visa application, and one letter in support of his claims.
Nevertheless, there is no reason to believe in the circumstances that any jurisdictional error could be established in favour of the Applicant arising out of the loss of any documents in this case, when they were all clearly before the Tribunal for the purposes of the decision under review in this Court and the substance of them recorded in its Decision Record.
Applicant’s Claims for Protection
The Applicant’s claims for protection were are follows:
a)He is a single Muslim male from Demra, in Dhaka, Bangladesh.
b)He became involved in student politics and supported the Demra branch of the Bangladesh Nationalist Party (BNP) student wing, Jatiyatabadi Chhatra Dal (JCD), when he was a student at the Asian University of Bangladesh. He participated in meetings and programs organised by the party.
c)He became the Assistant Cultural Secretary of the Demra Thana Chhatra Dal in 2005. In this role he organised programs celebrating significant Bangladesh cultural holidays. Later, he was elected as the joint Cultural Secretary of the Demra Thana Chhatra Dal.
d)During the care taker government period in 2007, he was detained and questioned about his personal circumstances and BNP political activities by people dressed in white clothes. He was later released.
e)During the 2008 elections he organised students to participate in election campaigning to support his local BNP candidate Sala Uddin Ahmed. He was threatened by opposition members from the Bangladesh Chhatra League (BCL) - (Awami League (AL) student wing).
f)He became the Vice President of the Demra Thana Chhatra Dal committee in 2011.
g)After completing his education in 2011, he join the BNP youth wing Jatiyatabadi Jubo Dal (JJD). In 2012, he was elected to be an executive member of the JJD Demra Thana committee.
h)On 29 - 30 April 2012, he led a procession at Jatrabari protesting the arrest of central BNP leaders including BNP Joint Secretary General Ruhul Kabir Rizvi. He was injured by the police using their batons, and admitted to a clinic for treatment for two days.
i)On 13 December 2012, the applicant participated in a protest as a leading activist with the local JJD. The police and AL opposition supports tried to shoot them but they escaped. Later, the police raided his home to arrest him, and his sister informed him that a case had been filed against him.
j)After this incident he decided to leave Bangladesh and travelled to Australia. His father paid bribes to the police and the airport so he could depart the country; and
k)He believes that the Bangladesh government condones extra-judicial killings and continues to gaol or lodge false cases against BNP supporters. He fears that if he returns to Bangladesh he will be persecuted.
Further, in support of his Protection visa application he submitted three documents, being:
a)A letter of support from the President of the BNP Australia, Dr Abdul Wahab, dated 6 January 2015, which is no longer available.
b)A letter of support from the Assistant Office Secretary of the Bangladesh JJD Central Executive Committee Mr Hossain, dated 7 September 2014; and
c)A letter of support from the President of the Bangladesh JCD, signed by Mr Sarker and dated 5 September 2014.
Relevant Statutory Criteria for the Grant of a Protection Visa
A convenient summary of the relevant grounds and criteria for the grant of the Protection visa in this proceeding can be found in the judgment of Charlesworth J in AWA15 v Minister for Immigration [2018] FCA 604 at [5] – [7] as follows:
[5] The Minister is to grant a visa if satisfied that the visa applicant satisfies the relevant criteria. If the Minister is not so satisfied, he must refuse to grant the visa: s 65(1) of the Act. For the appellant to qualify for the grant of a protection visa it was necessary for the Minister to be satisfied that (among other things) the appellant fulfilled either the criterion in s 36(2)(a) of the Act (Refugee Criterion) or the criterion in s 36(2)(aa) of the Act (Complementary Protection Criterion).
[6]The Refugee Criterion requires that the Minister be satisfied that the visa applicant is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention, as amended by the Refugees Protocol, namely a person who:
... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.
[7]Relevantly, the Complementary Protection Criterion requires that the visa applicant be a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because:
... the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; ....
Decision of Delegate
The Applicant attended an interview with the Delegate on 6 January 2015.
In her Decision Record, the Delegate set out the Applicant’s written claims as previously made and the claims made at the interview, which included a claim that the Applicant would be gaoled and possibly tortured if he returned to Bangladesh because he had participated in political activities in support of the BNP.
In the result the Delegate was not satisfied that the Applicant’s knowledge of the structure, goals and aims of the BNP was commensurate with his claimed roles of political leadership and activism for the BNP and JJD, and considered that the Applicant had embellished his political profile to enhance his claims for protection.
The Delegate accepted that the Applicant was a general supporter of the BNP. However, the Delegate found that the Applicant’s claim that he was of adverse interest to the Bangladesh authorities was fabricated and not credible and did not accept that the Applicant was the subject of politically motivated charges filed by the police in Bangladesh.
The Delegate found that the Applicant did not satisfy the Refugees Convention criterion and that he did not face a real chance of significant harm should he return to Bangladesh for the purposes of the complementary protection criterion and she refused to grant a Protection visa to him.
Decision of Tribunal
The Applicant applied to the Tribunal on 7 February 2015 for merits review of the Delegate’s decision and at that time gave a copy of the Decision Record of the Delegate to the Tribunal.
On 26 April 2016 the Applicant appeared before the Tribunal to give evidence and present arguments. In short, the Tribunal effectively rejected all of the Applicant’s claims for protection. The general conclusions of the Tribunal on these claims were set out at [23] – [25] of its Decision Record as follows:
Summary – refugee claims
[23] Taking these considerations together I am not satisfied that the Applicant has provided a credible account of his experiences in Bangladesh. I am not satisfied that he had any leadership or activist involvement with the BNP, its youth wing or its student wing in his Thana. I am not satisfied that he was harmed by the Awami League by being detained and interrogated, that he was injured in a rally in April 2012, that he was shot at in a hartal in December 2012, that a false case was lodged against him, that police came to his home to arrest him or that he was in any other way harmed as a consequence of political activism. Nor am I satisfied that since arriving in Australia he has had any continuing or significant involvement with branches of the BNP or the Jubodal.
[24]As I am not satisfied that the Applicant ever suffered harm in the past in Bangladesh because of a political opinion, and in the absence of any indication that his personal circumstances have changed since his departure so that a risk of harm could now be said to exist, I am not satisfied there is a real chance that he would suffer serious harm for such a reason it he were to return to Bangladesh. He does not claim to fear harm in Bangladesh for any other reason and no other reason is apparent on the face of the information before the Tribunal.
[25]In the light of all the information before the Tribunal, considered individually and cumulatively, I am not satisfied that the Applicant has a well-founded fear of persecution for a Convention reason should he return to Bangladesh, now or in the reasonably foreseeable future, and I am not satisfied that he is a refugee.
At [17] of its Decision Record the Tribunal recorded the findings and reasons which led it to the rejection of the Applicant’s claims to protection, which were in short as follows:
a)The Applicant’s responses to questions about the BNP gave little impression that the Applicant was speaking from a background of knowledge which might reasonably be expected of someone with the clamed substantial history of activism as an executive office-holder in local branches of the student and youth wings of the BNP. The Tribunal recorded that the Applicant could offer little or no meaningful information about what it was that he allegedly did to support his party in Bangladesh, and his responses to a range of questions in relation to the BNP were highly generalised and lacking in circumstantial detail.
b)The Applicant’s accounts of the incidents of harm he claimed to have suffered as a result of his political activism were vague and uninformative. The Applicant’s claim that the police came to his house to arrest him on a false charge on 13 December 2012 appeared highly implausible given that he returned to the home two months later and remained there for another five months, before leaving for Australia without the police ever returning to seek him.
c)He had received his Subclass 462 visa on 23 June 2013 and thus was entitled to thereafter leave Bangladesh for Australia, but did not do so until 29 July 2013, over five weeks later, which was incompatible with his claim to fear that the police were looking for him in order to arrest and torture him.
d)The Applicant had delayed lodging his Protection visa application for almost a year after having arrived in Australia and did so within days of the ceasing of his Subclass 462 visa and this delay was difficult to reconcile with the Applicant’s claim to have fled Bangladesh in fear of serious harm at the hands of the authorities and the AL.
At [19] of its Decision Record the Tribunal acknowledged that independent country information, including the most recent DFAT report, indicated that political violence continued to occur in Bangladesh, particularly at election time, and that opposition leaders or activists currently face some risk of being targeted for arrest and detention because of their political activities.
However, as the Tribunal was not satisfied that the Applicant had ever been involved with the BNP or its student or youth wing at a level which would have singled him out or exposed him to be targeted for harm, it found that there would now not be more than a remote risk of harm if he returned to Bangladesh.
At [20] the Tribunal recorded its findings with respect to the two letters emanating from Bangladesh identified at [7(b)] and [7(c)] above and:
a)noted that the letter at [7(b)] included telephone numbers which had been altered by hand, an inoperative website address and an organisation emblem, featuring two stars above an industrial wheel, which did not appear to match that of the JJD or any other constituent body of the BNP available through searches of the internet;
b)noted that the letter identified at [7(c)] had a letterhead which incorporated an emblem which, on closer inspection, indicated clear differences between it and the real emblem of JCD and that it was not satisfied with the Applicant’s explanation of this inconsistency or difference as being the result of a printing company error;
c)recorded that country information indicated that false or fraudulent documents were readily available in Bangladesh and frequently used to support refugee and other visa applications; and
d)recorded that it accordingly concluded that no weight could be placed on these two letters as support for the Applicant’s claims of political involvement in Bangladesh.
At [21] and [22] the Tribunal recorded its findings in relation to the third letter identified at [7(a)] above, and for the reasons expressed in those paragraphs was not satisfied that that any weight could be placed on this letter as support for the Applicant’s claims.
Accordingly, the Tribunal affirmed the decision of the Delegate not to grant a Protection visa to the Applicant.
Grounds of Attack on Tribunal Decision in this Court
The Grounds of the Application are as follows:
1. The Second Respondent made jurisdictional error by misjudging the applicant in respect to the false and harm constituted by the Awami League prior of his leaving from Bangladesh.
2. The Second Respondent made jurisdictional error in making a decision, where the Second respondent was biased by the country information.
3. The Second Respondent made jurisdictional error by failing pay any weights to the corroborative evidence submitted by the applicant.
Consideration
At the hearing the Applicant relied on his Written Submissions served the day before and chose to not make any oral submissions.
Ground 1
This Ground appears to argue with the findings of the Tribunal and invite a merits review which is not available to the Applicant in this Court.
Further, it is quite clear that the Tribunal was aware of the Applicant’s claim to fear persecution and harm from the AL: see the fourth and sixth bullet points to [9] of its Decision Record and the second, third, ninth and twelfth bullet points to [14] and [16] and [17].
Then at [23] (see [15] above) the Tribunal expressed its view that it was not satisfied that the Applicant was harmed by the AL by being detained and interrogated and more generally at [24] (see [15] above) that he had never suffered harm in the past in Bangladesh because of a political opinion. These were findings in relation to the AL which were legally reasonably open to the Tribunal and it is not open to the Applicant to contend that the Tribunal misjudged in this respect.
In his Written Submissions in support of Ground 1 the Applicant suggests that it was open to the Tribunal member to make a telephone call to the President of the BNP in Australia, Dr Abdul Wahab, who was the author of the letter identified at [7(a)] above in order “to find the truth regarding the Applicant”. However, there is no evidence that the Applicant in fact asked the Tribunal member to phone Dr Wahab.
In any event, the Tribunal had rejected all of the claims of the Applicant on credibility grounds. Dr Wahab’s letter apparently contained the information summarized by the Tribunal in the first bullet point to [10] of its Decision Record, and it has not been explained how a telephone call to Dr Wahab with respect to his letter would have swayed the Tribunal in a different direction, or otherwise have overcome the Tribunal’s concerns about the Applicant’s credibility, based predominantly on his own evidence.
In my view Ground 1 fails to establish that the decision of the Tribunal is affected by jurisdictional error.
Ground 2
This Ground also fails to establish jurisdictional error. It asserts that the Tribunal “was biased by the country information” that it considered and referred to in its Decision Record.
It is clear law that the choice and selection of country information and the weight given to such information is a factual matter for the Tribunal and is not an issue for review in this Court: see SZLYT v Minister for Immigration and Citizenship [2009] FCA 76 at [20] per Collier J and WZAVX v Minister for Immigration and Border Protection [2016] FCA 411 at [32].
To similar effect in MZZZW v Minister for Immigration and Border Protection (2015) 234 FCR 154 at 159 [19] the Full Court of the Federal Court comprised of Tracey, Murphy and Mortimer JJ approved the statement of law of the primary Judge below as follows:
[19]It also noted (at [21]) it was a matter for the Tribunal what country information it obtained and what weight it gave that country information, referring to the reasons of the Full Court of this Court in NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11].
Further, pursuant to Clauses 2 and 3 of Ministerial Direction 56 (referred to at [7] of the Decision Record of the Tribunal) made under s.499(1) of the Migration Act 1958 (Cth), the Tribunal was obligated to take account of the specified PAM3 “Refugee and humanitarian – Complementary Protection Guidelines”, PAM3 “Refugee and humanitarian – Refugee Law Guidelines” and DFAT country information assessments where relevant to the making of the Tribunal’s decision. Clause 3 of Ministerial Direction 56 in relation to country information provided as follows:
3.Where the Department of Foreign Affairs and Trade has prepared a country information assessment expressly for protection status determination purposes, and that assessment is available to the decision maker, the decision maker must take into account that assessment, where relevant, in making their decision. The decision maker is not precluded from considering other relevant information about the country.
There is not a skerrick of evidence that the country information considered by the Tribunal “biased” it in relation to its decision.
Rather, the Tribunal seems to have rationally and reasonably considered the country information referred to in its Decision Record, and Ground 2 fails to establish jurisdictional error.
Ground 3
This Ground is expressed at a high level of generality and does not identify “the corroborative evidence submitted by the Applicant” of which it is asserted the Tribunal did not “pay any weight”.
I cannot discern any such evidence. The Tribunal expressly identified at [10] of its Decision Record the three letters which had been submitted by the Applicant and set out its findings with respect to them at [20] – [22].
Otherwise, the Tribunal paid regard to and meaningfully considered the Applicant’s claims, but in the result found against him based on both country information and credibility findings.
It is, of course, the case that credibility findings of the Tribunal are not beyond judicial scrutiny. Credibility findings remain “findings of fact the same as any other fact”: CPW16 v Minister for Immigration & Border Protection [2017] FCA 1210 at [15] per Flick J. However, in this case I do not consider that the findings of the Tribunal in relation to the Applicant’s credit, or otherwise, could be said to be unreasonable, without a logical, rational or probative basis or founded on objectively minor matters. Nor could they be regarded as “blanket, reflex or exaggerated adverse credit findings”: AZU15 v Minister for Immigration & Border Protection (2016) 240 FCR 143 per Allsop CJ, Kenny and Bromwich JJ at 145 [11]. Rather, they seem to me to be findings which were legally open to the Tribunal on the material before it.
Ground 3 fails to establish jurisdictional error.
Conclusion
In my view, the Applicant has failed to establish that the decision of the Tribunal is affected by jurisdictional error and the Application filed in this Court is to be dismissed.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Date: 21 November 2018
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