BPS16 v Minister for Immigration and Border Protection
[2019] FCA 1279
•15 August 2019
FEDERAL COURT OF AUSTRALIA
BPS16 v Minister for Immigration and Border Protection [2019] FCA 1279
Appeal from: BPS16 v Minister for Immigration [2019] FCCA 411 File number: VID 250 of 2019 Judge: BEACH J Date of judgment: 15 August 2019 Catchwords: MIGRATION – appeal from Federal Circuit Court – application for protection visa – jurisdictional error – illogicality – unreasonableness – failure to consider integer of claim – lack of procedural fairness – appeal dismissed Legislation: Migration Act 1958 (Cth) ss 36, 65 Date of hearing: 13 August 2019 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 46 Counsel for the Appellant: The Appellant appeared in person with the assistance of an interpreter Counsel for the First Respondent: Mr T B Goodwin Solicitor for the First Respondent: Sparke Helmore Counsel for the Second Respondent: The Second Respondent filed a submitting notice save as to costs ORDERS
VID 250 of 2019 BETWEEN: BPS16
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
BEACH J
DATE OF ORDER:
15 AUGUST 2019
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The appellant pay the first respondent’s costs of and incidental to the appeal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
BEACH J:
On 26 February 2019, a judge of the Federal Circuit Court dismissed an application for judicial review seeking to quash a decision of the Administrative Appeals Tribunal made on 2 June 2016 in which the Tribunal had affirmed a decision of the Minister through his delegate not to grant a protection visa to the appellant.
By notice of appeal filed on 18 March 2019, the appellant appealed that dismissal on six grounds, although according to the Minister these grounds of appeal were not raised below. The Minister objected to the appellant raising these new grounds. In any event, the Minister said that the appellant had not demonstrated that the Tribunal had committed any jurisdictional error or that the primary judge was in error for failing to so find.
Let me begin with some background.
The appellant was born on 7 July 1988 and is a citizen of Bangladesh. He claimed to fear harm as a supporter of the Bangladesh National Party (BNP). He set out the primary bases for that claim in a statutory declaration that accompanied his visa application. He stated that he had a number of prominent family members involved in the party, and he had become more politically active over the years preceding his departure from Bangladesh. He stated that from 2010 to 2013, he had owned a shop and paid extortion money to the Awami League, the opposing party to the BNP. He said that he had arranged a protest against these extortion payments. He said that by way of retaliation, in March 2013 his shop and many other shops were burnt down by supporters of the Awami League. The appellant asserted that Awami League supporters tried to physically beat him but he managed to escape without injury. He subsequently fled to Dhaka. In Dhaka he heard that Awami League members were at his hotel asking for him. The appellant then left Bangladesh for Australia. He subsequently applied for a protection visa.
On 14 October 2014 a delegate of the Minister interviewed the appellant and on 27 October 2014 determined not to grant him a protection visa. The delegate’s reasons indicate that the delegate made adverse credibility findings against the appellant based on his vague evidence and a number of inconsistencies in and the implausibility of some of that evidence. Although the delegate accepted that the appellant was a supporter of the BNP based on his familial connections and had paid extortion money to persons associated with the Awami League, the delegate did not accept that the appellant organised a protest, that his shop was burnt down, that anyone was assaulted or that his family was subsequently extorted or threatened.
The appellant sought review by the Tribunal. A hearing took place on 17 May 2016. Following the hearing, the appellant provided the Tribunal with a letter from the President of the BNP in Upazila-Chowgacha in the Jessore District.
On 2 June 2016 the Tribunal affirmed the decision of the delegate.
The Tribunal referred to the appellant’s claims primarily drawn from his statutory declaration. In particular, the Tribunal noted that the appellant had raised a new claim at the hearing before it, namely that his younger brother and father were in hiding due to threats from the Awami League.
In considering the appellant’s claims to fear harm, the Tribunal determined that the appellant’s evidence on central aspects of his claims was variously vague, unsubstantiated, as well as often inconsistent with his earlier evidence and the Tribunal was not satisfied that his claims were credible. The reasons for such findings were as follows.
First, the Tribunal was concerned with inconsistencies in the appellant’s evidence about the shop he claimed to operate. The appellant gave conflicting evidence before the delegate and the Tribunal about the number of rooms in the shop and how many shops were on the street in Chowgacha. The Tribunal found that these inconsistencies undermined the credibility of the appellant.
Second, the Tribunal found that the appellant gave inconsistent evidence about the extortion money paid to the Awami League and his business turnover. The appellant gave inconsistent answers to the delegate and Tribunal regarding how long he had paid extortion money, the amount paid and how many people would attend his shop to demand the money. The Tribunal did not accept the explanations of the appellant for the inconsistencies and was not satisfied based on those inconsistencies that the extortion demands were made on him as claimed.
Third, the Tribunal noted inconsistencies in the appellant’s evidence regarding his reports to police and claims of harm prior to March 2013. The appellant claimed at the Tribunal hearing that three months before the protest and shop-burning in March 2013, which I have referred to earlier, he had been physically assaulted by supporters of the Awami League. But the Tribunal noted that these claims had not previously been raised in his visa application or before the delegate. The Tribunal did not accept that the appellant would not raise such serious claims simply because he was not asked. The Tribunal also said that the appellant’s evidence as to his reports to police regarding his fear of harm was also vague. On those bases the Tribunal did not accept that the appellant was ever harmed prior to March 2013 or that he reported any such harm to police.
Fourth, the Tribunal found that the appellant’s evidence about the protest he organised was vague, lacked detail and was inconsistent with previous evidence. There were discrepancies regarding how many shopkeepers were involved, how many Awami League supporters attacked them and the injuries sustained by other shopkeepers. The Tribunal also considered the letter from the BNP provided in support of the appellant’s claims but noted the discrepancy in the dates provided for the protest. In those circumstances, the Tribunal did not accept that the appellant was involved in organising or attended a protest or that his shop was burnt down in March 2013.
Fifth, the Tribunal found that the appellant gave conflicting details about what happened in the immediate aftermath of the protest regarding the location of the hotel he stayed at in Dhaka and the circumstances in which supporters of the Awami League came looking for him. Accordingly, the Tribunal did not accept that the appellant was required to flee to Dhaka or was pursued by the Awami League.
Sixth, the Tribunal did not consider that the appellant’s claims of association with the BNP were credible. The appellant told the Tribunal that he was a member of the BNP, even though he stated in his statutory declaration that he was only a supporter. According to the Tribunal, the appellant did not give satisfactory evidence about the general process of how to become a member of the BNP or the fact of his membership. Further, the appellant was unable to recall the main principles of the BNP or describe in detail the BNP flag. And although the Tribunal accepted that the appellant could not be expected to have complete knowledge of the BNP constitution or structure, the Tribunal stated that it “would expect someone in the applicant’s claimed circumstances, who has been interested in the BNP since he was young and whose father was a member, and whose uncles and friends were members, and who attended meetings often, would have more detailed knowledge of the BNP than the applicant displayed during the hearing” (at [22]). Accordingly, the Tribunal did not accept that the appellant was a supporter of the BNP or involved in meetings, political discussions, rallies or electioneering for the BNP.
Seventh, the Tribunal found that the appellant had manufactured claims of threats of harm to his family since he had left Bangladesh.
In the light of these credibility findings and specific findings of fact, the Tribunal found that the appellant was not of adverse interest to the Awami League, and that he had not paid extortion money or organised a protest of shop owners. Accordingly, he was not of adverse interest to anyone in Bangladesh.
Further, whilst the Tribunal did accept that the appellant may have family members involved in the BNP, based on its consideration of country information it found that supporters or members of political parties were not generally at risk of harm. Moreover, considering the appellant’s low-level support of the BNP, there was no real chance he would suffer serious harm.
Further, the Tribunal went on to consider the question of complementary protection. But as a number of significant aspects of the appellant’s claims were rejected, including that the appellant was of adverse interest to the Awami League, the Tribunal rejected the suggestion that he faced a real risk of suffering significant harm. Accordingly, the Tribunal affirmed the decision of the delegate not to grant the appellant a protection visa.
On 26 June 2016, the appellant applied for judicial review and raised the following four grounds, namely that:
(a)the Tribunal acted without jurisdiction or in excess of jurisdiction when it failed to take into account relevant considerations;
(b)the Tribunal made a jurisdictional error by not applying the real chance test;
(c)the Tribunal made a jurisdictional error when it did not consider the appellant’s claims against the complementary protection criterion; and
(d)the Tribunal made a jurisdictional error in doubting the appellant’s claim without substantive evidence and reached a mistaken conclusion.
All grounds were rejected by the primary judge. It is not necessary to dwell on her reasoning for the moment. New and expanded grounds of appeal asserting jurisdictional error and her Honour’s failure so to find have been raised before me.
GROUNDS OF APPEAL
As I have said at the outset, the Minister has objected to the appellant raising these new grounds of challenge before me. But given that the appellant is self-represented and no prejudice or other difficulty to the Minister is readily apparent to me, I propose to grant leave to the appellant to raise these points. For present purposes it is not productive to linger on their merits or otherwise in determining whether to grant leave. It is convenient to address the merits of each ground on the basis that leave has been given.
(a) Ground 1
The appellant asserts that the Tribunal failed to consider an integer of the appellant’s claims, namely the seriousness of his family situation and his evidence that his father and brother had arrest warrants out for them and were currently in hiding, and presumably that the primary judge was in error in failing to find a jurisdictional error in this respect.
This ground must be rejected.
The Tribunal directly considered the appellant’s claims raised at the hearing that his father and brother had been the targets of false claims and had gone into hiding. In the decision, the Tribunal (at [12]) noted the appellant’s evidence on those matters. The Tribunal rejected the claims due to the lateness of the claims, the fact that the claims about his brother were inconsistent with evidence provided to the delegate, the lack of documents to support the claims, even though an opportunity to provide further material was given, and also taking into account the overall concerns with the appellant’s credibility (at [23]). In my view the claims were considered. Further, these factors formed a reasonable basis for the Tribunal’s rejection of the appellant’s evidence regarding his father and brother.
Further, as to the appellant’s assertion that the Tribunal could have made further inquiries, the Tribunal was under no duty to further inquire. Moreover, there was no obvious inquiry about a critical fact, the existence of which was easily ascertained. Ultimately it was for the appellant to provide material to the Tribunal to support his claims and the Tribunal was under no obligation to make his case for him.
Further, and on a separate matter, albeit raised under ground 1, I agree with the Minister that to the extent that the appellant repeats his claim, asserted below, that the Tribunal failed to recognise his problematic mental state, the appellant has not established the fact of any condition or that that condition denied him the capacity to give evidence, make arguments or understand and respond to the questions put to him before the Tribunal.
Further, a reference has also been made by the appellant as to difficulties with the interpreter and interpretation in the Tribunal. But this does not appear to have been raised with the Tribunal. Moreover, there is no material supporting this. Further, the matter does not appear to have been agitated before the primary judge.
(b) Ground 2
The appellant asserts that the Tribunal failed to understand and properly consider the appellant’s claim that he was a credible witness and was an active member of the BNP and presumably that the primary judge was in error in failing to find a jurisdictional error in this respect. But in my view, the appellant is under cover of this ground seeking to engage in impermissible merits review. The Tribunal set out in detail its basis for making adverse credibility findings and it concluded on a cogent basis that the appellant was of no adverse interest to the Awami League.
Further, there is no basis for the complaint of the appellant that the Tribunal should not have had regard to the website of the BNP in making its findings. The process is inquisitorial and the weight to be given to such information is a matter for the Tribunal itself. Further, as a matter of procedural fairness, the information from the website was put to the appellant for comment.
Further, it was open to the Tribunal to make its own findings on the evidence even though the delegate had made different findings regarding the appellant being a supporter of the BNP and paying extortion money. In this regard the Tribunal put its concerns to the appellant and provided him with an opportunity to comment.
Further, the Tribunal did not misconstrue the appellant’s claims. Moreover, the Tribunal’s adverse credibility findings were legally reasonable and had a logical and probative basis.
Finally, perhaps if I had been the trier of fact I would not on the material before the Tribunal have made such bright line distinctions between being a supporter of the BNP on the one hand, or a member on the other. But it must be said that the appellant made that distinction in his statutory declaration. Further, even if it be accepted that the appellant was an active supporter or even a member of the BNP, I do not see any realistic possibility of a different result before the Tribunal. In any event I am not engaging in merits review.
Ground 2 is not made out.
(c) Ground 3
Ground 3 seems to raise a miscellany of disjointed complaints concerning the appellant having difficulty speaking with his solicitors, uncertainty about who was working on his behalf and asserted unfamiliarity with what was going on before the Tribunal (and possible the Court below) in terms of his rights.
Now the appellant was not represented before the Tribunal. But his application for review before the Tribunal indicated that he did not want to appoint a representative and no representative was subsequently appointed. Further, there is no evidence concerning the Tribunal that the appellant raised any problems with the Tribunal because he was unrepresented. In any event, it is unclear how not being represented meant that the appellant was “never aware of what’s happening and failed to exercise his rights in front of the court [sic] and hence the Tribunal made reckless adverse credibility findings”.
Generally, all of these complaints seem to relate to a denial of procedural fairness, but there is little material to support them.
Ground 3 is rejected.
(d) Ground 4
This ground in substance asserts that the Tribunal failed to afford the appellant procedural fairness by failing to notify him that his claim in relation to the extent of his involvement with the BNP was open to doubt, and that the Tribunal failed to take into account relevant considerations and presumably that the primary judge was in error for failing to so find.
I would reject this ground as well.
The Tribunal was entitled to draw different conclusions from the delegate. Further, the Tribunal put its concerns to the appellant during the hearing. Further, it was not unreasonable for the Tribunal to raise doubts about the appellant’s involvement with the BNP and it did not misunderstand or misconstrue the facts on that matter. Moreover, the Tribunal had an evident and intelligible justification for its findings.
(e) Grounds 5 and 6
Ground 5 is expressed in the following terms:
The learned primary judge should have found that the Authority failed to give realistic consideration to the claim regarding / and or reached the conclusion evidence regarding future political activities and / or is illogical or irrational. The Authority has thereby committed jurisdictional error.
Ground 6 is expressed in the following terms:
The learned trial judge erred in finding, to the extent that His Honour did, that the decision of the AAT was not unreasonable or illogical.
Some particulars have been given of each of these grounds, but they indicate clearly that the appellant is in substance seeking impermissible merits review. In any event, the particulars contain various errors.
There is nothing illogical or legally unreasonable about any of the Tribunal’s factual or credibility findings, which were supported by cogent reasons including evidence. These grounds are not made out.
(f) Generally
The appellant’s appeal must be dismissed with costs.
I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Beach. Associate:
Dated: 15 August 2019
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