BQZ16 v Minister for Immigration

[2017] FCCA 2160

FEDERAL CIRCUIT COURT OF AUSTRALIA

BQZ16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2160

Catchwords:
MIGRATION – Application for judicial review of decision of Administrative Appeals Tribunal (Tribunal) affirming decision of a delegate of the first respondent not to grant applicant protection visa – whether Tribunal considered applicant’s claims – whether Tribunal’s findings reasonably open to it on the material before it and for the reasons it gave – application is dismissed.

Applicant: BQZ16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1714 of 2016

Judgment of: Judge Manousaridis

Hearing date: 31 August 2017

Date of Last Submission: 31 August 2017

Delivered at: Sydney

Delivered on: 8 September 2017

REPRESENTATION

Applicant in person assisted by interpreter

Solicitors for the First Respondent: Sparke Helmore Lawyers

ORDERS

1. The application is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1714 of 2016

BQZ16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant, a citizen of Bangladesh, seeks judicial review of a decision of the second respondent (Tribunal) setting aside the decision of a delegate of the first respondent (Minister) not to grant the applicant a Protection (Class XA) visa (Protection visa).

Claims for protection

1. The applicant, who arrived in Australia on 28 March 2013, stated his claims for protection on four occasions: at an Irregular Maritime Arrival Entry Interview conducted by an officer of the Department of Immigration and Border Protection (Department) on 10 April 2013 (Entry Interview); in a statutory declaration that formed part of his application for a Protection visa dated 11 June 2013 (Statutory Declaration); in written submissions to the delegate made by the applicant’s then representative dated 9 September 2014 (Submissions); and at the hearing before the Tribunal which took place on 3 June 2016.

2. At the Entry Interview the applicant stated his claims for protection as follows:[1]

   a)In 2002 the applicant was a businessman in Bangladesh and, when he was running his business, he was approached by the “Shorbohara” and asked to give a “forced donation” of 5,000 Taka each month. After five to six months, this was increased to 10,000 Taka. Due to troubles with his family, the applicant could only afford to make one donation of 10,000 Taka. The applicant was then told by the “Shorbohara” that he could no longer continue with his business.

   b)One evening the applicant was stopped by the “Shorbohara”, who took 8,500 Taka from the applicant and repeatedly told the applicant “we will kill you”. The applicant managed to escape and did not discuss this incident with his family. The applicant, however, recommenced his business.

   c)Seven to ten days later the applicant was approached by the “Shorbohara”, who told the applicant that he had to give them money, otherwise “they would have to kill him”. The applicant went into hiding at his aunt’s house for two years and when the applicant tried to restart his business, he was threatened again. In 2010 the applicant restarted his business and, in 2012, the “Shorbohara” forced the applicant to give them money again.

   [1] CB1-17

3. In the Statutory Declaration the applicant stated as follows:[2]

   a)From 2004 to 2012 the applicant ran his own fruit business. In 2004 members of the “Shorbahara, an armed group” would regularly approach the applicant and demand money from him. The applicant’s statement in the Entry Interview that he was forced to give the “Shorbohara” a donation in 2001 or 2002 was incorrect.

   b)After the applicant refused to pay 10,000 Taka to the “Shorbahara” the applicant was beaten and money was taken from him. From 2006 to 2008 the applicant was not able to run his business and was afraid he would be extorted and harmed by the “Shorbahara” so he went into hiding at his aunt’s house. During this time the “Shorbahara” came looking for the applicant asking after his whereabouts.

   c)In 2007 and 2008 the “Shobahara” sent letters to the applicant containing demands the applicant pay them money and threats to kill the applicant if he sought protection or told anyone. Between 2008 and 2012 the applicant resumed work as a fruit seller but he remained afraid the “Shobahara” would extort or harm him again. In 2011 the applicant received “a threatening letter” from the “Shobahara” that contained demands for money and threats the “Shobahara” would kill the applicant if he did not pay them. In 2012 the applicant was told by another shop owner that the “Shobahara” threatened to kill the applicant if he did not pay them the money.

   [2] CB65-67

4. In the Submissions the applicant’s representative stated there “are a number of spelling variations on the name Shobohara, including Sarbhara, Sharvahara or Sarbahara and Purba Bangla Sarbohara Party”, but the names all refer to “incarnations of a left wing political group and radical Maoist movement that was founded in the late 1960s or 70s”.[3] The representative claimed the applicant may have been targeted by this group on the basis of his membership of a particular social group, namely “successful small businessmen in Bangladesh”, or on the basis of his imputed political opinion arising from his membership of this social group.

   [3] CB89

5. The representative further stated there was enclosed with the Submissions a copy “of a letter received by the Applicant in 2011 from the group extorting him for money”. The letter is not reproduced in the Court book because it appears to have been in Bangla. The representative stated “[w]e are further instructed (through an interpreter) that the letter contains words to the following effect (this is not a word for word translation)”. The Submissions set out in English what purports to be a part of the letter to the effect that the applicant would be killed if he did not provide the “charity money”. The representative also said she was instructed the applicant asked his aunt in Bangladesh to send him a scanned copy of the letter sent to him in 2011 and that his aunt could not locate the letters that were sent to him in 2007 and 2008.

6. Before the Tribunal, the applicant said as follows:

   a)Immediately before he left Bangladesh the applicant had been living with his aunt for approximately three to four years. He moved to his aunt’s house to be closer to “where he was working in the garment industry in 2001”.[4]

   b)In 2004 the applicant commenced a business of the wholesale distribution of fresh fruit. In 2007 the applicant stopped his business “when people asked him to pay an amount he could not afford” with the applicant gradually stopping his business in 2011.[5]

   c)The applicant had no knowledge of “Shorbahara”. He paid the extortion money to people wearing caps who came in person to collect the money. [6]

   d)The applicant was unable to say whether other businesses were similarly affected because he did not disclose the situation to other people.[7]

   e)The applicant was living with his aunt when the threats commenced. The first letter arrived in 2007, the second in 2009, and the third in 2011. He said the first two letters were handed to a shopkeeper to pass on to the applicant, and the third letter was delivered to the applicant’s aunt’s house.[8]

   f)When the applicant was asked whether anything else happened after the applicant received threatening letters, the applicant said nothing else happened.[9]

   g)In response to the Tribunal’s question why the applicant would not have thought to move out of his local area to avoid harm that might come to him as a result of the threats he received, the applicant said he thought he might be more vulnerable in a different area. The applicant said he believed there was no safe place for him in the country.[10]

   h)The applicant said he did not in the six months he stayed in Malaysia before he arrived to Australia apply for protection there because he was afraid he would be arrested by police and returned to Bangladesh.[11]

   [4] CB135, [33]

   [5] CB135, [35]

   [6] CB135, [37]

   [7] CB136, [39]

   [8] CB136, [40]

   [9] CB137, [44]

   [10] CB137, [45]

   [11] CB137, [48]

Tribunal’s reasons

1. The Tribunal was satisfied the words “Shorbahara”, “Sharbahara”, and “Sarbahara” denote a faction of the Purba Banglar Communist Party (PBCP).[12] It accepted that the PBCP and its factions have reportedly been involved in acts of murder, robbery, extortion, land grabbing, and abduction for ransom; and that it has been reported that PBCP cadres harass businessmen “for finances” and torture people in remote villages. On the basis of that information, the Tribunal was prepared to accept the applicant may have been a victim of extortion by members of the “Shorbohara” which led him to wind down his business and seek to relocate to Malaysia.[13]

   [12] CB135, [37]

   [13] CB137, [49]

2. The Tribunal did not, however, accept the applicant had been physically attacked and robbed by “Shorbohara”, or that his being attacked or “other factors” caused him to live in hiding for several years at his aunt’s house, or that he received a series of letters in which he was threatened he would be killed, or that members of the “Shorbohara” are continuing to search for him even after his departure from Bangladesh. The Tribunal relied on the following matters:

   a)When the applicant was asked whether anything else happened after the applicant received threatening letters, the applicant said nothing else happened.[14]

   b)The applicant has not received any threatening letters since 2011.[15]

   c)The applicant made no attempt to determine who the extortionists were, or whether other people were affected similarly to the applicant. The Tribunal found it reasonable to assume a person in the applicant’s situation would have made some attempt to determine who the extortionists were; and, for that reason, the Tribunal found that the applicant’s silently accepting his fate from the outset caused the Tribunal “to doubt whether the claimed events occurred”.[16]

   d)The Tribunal did not accept the applicant’s claim that he moved to his aunt’s house to avoid detection because the applicant had previously informed the Tribunal that the reason he moved to his aunt’s house was to be closer to his place of employment when he worked in the garment industry.[17]

   e)The threatening letters the applicant claimed to have received were only intermittently received. That did not suggest “the Shorbahara people were very motivated to collect money or to harm him”.[18]

   f)No harm fell on the applicant during the four years over which he claimed to have received the threatening letters;[19] and that the applicant remained in the area during the period he claimed he received threats could suggests he was not afraid for his life as he claimed.[20] The Tribunal found it “significant the applicant willingly remained in his home area, residing with his aunty for several years while the claimed events occurred”; and that the applicant had not demonstrated he was genuinely scared of the “Shorbahara”.[21]

   [14] CB137, [44]

   [15] CB137, [46]

   [16] CB136, [39]

   [17] CB136, [41]

   [18] CB136, [42]

   [19] CB136, [42]

   [20] CB137, [45]

   [21] CB138, [51]

3. The Tribunal considered more likely that the “Shorbahara” gave up its attempts to extort money from the applicant when he ceased trading.[22] The Tribunal concluded, therefore, that the applicant will not be physically harmed or killed by the “Shorbahara” if he returns to Bangladesh “in connection with past events”.[23]

   [22] CB138, [49]

   [23] CB138, [49]

4. The Tribunal also considered country information concerning the “Sharbahara” or the “Sarbahara” which indicated that the group is outlawed in Bangladesh and that police and security forces in Bangladesh are not sympathetic to the group, and have demonstrated a willingness to take action against the group.[24] The Tribunal found that the applicant had not complained to the police about the extortion money he paid because he could afford to pay it, and it was when the amounts sought to be extorted increased that the applicant objected to making payments and commenced to wind down his business. The Tribunal was satisfied that if the applicant were to return to Bangladesh and commence business again, the applicant would be willing to make a complaint to the police.[25]

   [24] CB138, [50]

   [25] CB138, [52]

Grounds of application

1. The applicant’s application for review contains four grounds of application. The applicant, who is not legally represented, did not make any submissions in support of the grounds contained in the application. The only submission the applicant made was in support of an application that the hearing be adjourned. The applicant said he wanted the adjournment to obtain copies of two extortion letters that were sent to him and to put these letters to the Court in support of his claim for protection. I refused the adjournment. I informed the applicant that I had no jurisdiction to determine whether the applicant was entitled to protection, and the documents he said he wished to obtain from Bangladesh, therefore, were not relevant. Further, the documents the applicant said he wanted to obtain from Bangladesh had not been submitted to the Tribunal.

Ground 1

1. The first ground stated in the application is as follows (emphasis in original):

   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 from the Sharbahara Terrorist group prior to my departure from Bangladesh.

2. This ground does not accurately characterise the Tribunal’s findings. The Tribunal accepted the applicant may have been the victim of extortion by the “Shorbahara”, and that, at least initially, the applicant submitted to the extortion by paying money to protect his business. The Tribunal further found the applicant wound down and closed his business after he objected to continuing to submit to the extortion when the amounts sought to be extorted increased.

3. It is true the Tribunal did not accept aspects of the applicant’s claims, and in particular, the claims that he suffered physical harm from the “Shorbahara”, or that he feared harm from the “Shorbahara”. The Tribunal, however, gave reasons for those conclusions and those reasons were reasonably capable of supporting the Tribunal’s conclusions.

4. Ground 1, therefore, fails.

Ground 2

1. The second ground of application is as follows (errors in original):

   The Honourable Administrative Appeals Tribunal officer did not find there was lack of procedural fairness in the Decision of the Department of Immigration and Border Protection to consider that I was physically abused for not to provide money to the Sharbahara Terrorist group and my life was at risk which forced me to leave Bangladesh for safety of my life. I was not accepted by Tribunal as credible and was refused my application.

2. This ground appears to make two complaints. The first is that the Tribunal failed to find that the delegate denied the applicant procedural fairness and failed to consider whether the applicant was physically abused. The second is that the Tribunal did not accept the applicant to be credible.

3. The first of these two claims discloses no jurisdictional error. It formed no part of the Tribunal’s functions to consider whether the delegate had accorded the applicant procedural fairness or whether the delegate had failed to consider any claim the applicant made. To the extent the ground is intended to claim the Tribunal failed to accord the applicant procedural fairness, there is nothing in the material that could reasonably be taken to support such claim. The Tribunal’s reasons indicate the Tribunal member put to the applicant each of the matters on which the Tribunal relied for not accepting the applicant’s claims that he had been physically harmed. The Tribunal’s reasons also show that it considered each of the applicant’s claims.

4. The second of the two claims made in ground 2 also discloses no jurisdictional error by the Tribunal. It was reasonably open to the Tribunal, for the reason it gave, not to accept the applicant was credible in relation to those parts of his claims which the Tribunal did not accept.

5. Ground 2, therefore, also fails.

Ground 3

1. Ground 3 is as follows (errors in original):

   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 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.

2. This ground overlaps substantially with ground 2. The ground discloses no jurisdictional error by the Tribunal to the extent it claims the Tribunal failed to find the delegate failed to accept that applicant’s claims that he was persecuted in Bangladesh because it was no part of the Tribunal to make any finding in relation to what the delegate did or did not do. To the extent the ground claims the Tribunal made an error in finding the applicant was not credible, that too discloses no jurisdictional error. As I have already noted, the Tribunal accepted some parts of the applicant’s claims, and in particular his claim that he had been the subject of extortion. It was only in relation to some parts of the applicant’s claims that the Tribunal found the applicant was not credible. For the reasons the Tribunal gave, it was reasonably open for the Tribunal not to accept the applicant was credible in relation to those aspects of the applicant’s claims the Tribunal did not accept.

3. Ground 3, therefore, also fails.

Ground 4

1. Ground 4 is as follows (errors in original):

   The Administrative Appeals Tribunal Officer erred in not finding that the DIBP erred in law amounting to jurisdictional error in finding that I do not have genuine fear of persecution for a convention reason and I do not meet the criteria set out in s 36(2) of Protection Visa.

2. This ground does not disclose any jurisdictional error. It formed no part of the Tribunal’s functions to determine whether the delegate had made any error of law. And it was reasonably open to the Tribunal to find, for the reasons on which it relied, for concluding the applicant did not have a genuine fear of harm.

Disposition

1. I propose to order that the application be dismissed.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Date: 8 September 2017