BRG16 v Minister for Immigration

[2017] FCCA 2164

FEDERAL CIRCUIT COURT OF AUSTRALIA

BRG16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2164

Catchwords:
MIGRATION – Application under r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) to dismiss an application for judicial review of a decision of the Administrative Appeals Tribunal – whether applicants has have raised an arguable case for relief – no arguable case for relief raised – application dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r. 44.12(1)(a)

Applicant: BRG16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1734 of 2016

Judgment of: Judge Manousaridis

Hearing date: 1 September 2017

Date of Last Submission: 1 September 2017

Delivered at: Sydney

Delivered on: 8 September 2017

REPRESENTATION

Applicant in person assisted by an interpreter

Solicitors for the First Respondent: MinterEllison

ORDERS

1. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) the application is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1734 of 2016

BRG16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The first respondent (Minister) seeks an order under r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) that the application be dismissed because it does not raise an arguable case for the relief it seeks. By that application the applicant applies for judicial review of a decision of the second respondent (Tribunal) affirming the decision of a delegate of the Minister not to grant the applicant a Protection (Class XA) visa (Protection visa).

Claims for Protection

1. The applicant is a citizen of Bangladesh. He arrived in Australia on 28 March 2013 as an unauthorised maritime arrival and, on 2 July 2013, he applied for a Protection visa.

2. In a statement dated 3 June 2013 that formed part of his application for a Protection visa (Statement) the applicant claimed as follows:[1]

   [1] CB69-72

   a)In 2007 the applicant travelled to the Maldives on a tourist visa that was arranged for by Mr X, the husband of the applicant’s second cousin. The applicant paid Mr X money to arrange for the tourist visa. The applicant remained at the Maldives for two months but he was unable to work.

   b)When he returned to Bangladesh, the applicant approached his second cousin and demanded Mr X refund the money the applicant paid to Mr X. The applicant’s second cousin was furious and she threatened the applicant.

   c)Mr X called the applicant’s mother and said he would refund the applicant half of the amount of money he had paid. When the applicant returned to his cousin’s house to reclaim the money the following week, he was beaten by people his second cousin had hired. The applicant later found out that the people that had beaten him were affiliated with the Awami League.

   d)Approximately six weeks after he returned from the Maldives, the applicant detained the son of his second cousin overnight at the applicant’s parents’ house. The applicant’s second cousin reported the matter to the police. Although the police came to the applicant’s parents’ house, no charges were laid against the applicant.

   e)The applicant was involved from a young age with an Islamic political party called Jamat Shivir. The applicant did not think, however, that Jamat Shivir would be able to help him get his money back from Mr X. The applicant instead approached the Bangladesh National Party (BNP) for assistance. After “being with them for one year” the BNP was unable to help the applicant, and the applicant “had to move to another district to escape the threats from the people who beat” him.[2]

   f)The applicant moved to another district where he worked for one year, after which he returned to his home. The applicant commenced work there but after two to three months the applicant began to receive threats on his telephone from the people who had beaten him. The people threatened to kill the applicant if he got involved with the BNP.

   g)Approximately one week after he received the threats, the applicant saw some of the BNP leaders and told them what had happened and that he was afraid. On a day the applicant was at work, some Awami League members came to his house looking for the applicant. The applicant’s family who were present at the time informed the applicant that the people were threatening to kill the applicant. The applicant’s family told him he had to get out of Bangladesh.

   h)The applicant left straight away and went to Chittagong where he stayed for two to three months until he could arrange to leave.

   i)The applicant fears that if he returns to Bangladesh Mr X and the Awami League will harm him.

   [2] CB70, [17]

Tribunal’s reasons

1. The Tribunal was satisfied that:

   a)the applicant had travelled to the Maldives, and Mr X had misled the applicant about his ability to work there as a result of which the applicant was deported from the Maldives and suffered financial hardship;[3]

   b)on his return to Bangladesh the applicant spoke to the police about Mr X having misled the applicant, and the applicant’s father paid money to the police;[4]

   c)the applicant detained Mr X’s son against the son’s will, that the matter had been reported to the police and no charges were laid against the applicant;[5] and

   d)the applicant was attacked in the manner outlined before the Tribunal, even though his account before the Tribunal was inconsistent with the account stated in the Statement .[6]

   [3] CB183-184, [28]

   [4] CB184, [29]-[30]. This claim was not included in the statutory declaration that formed part of the application for Protection visa, but was raised before the delegate and repeated before the Tribunal.

   [5] CB184, [32]

   [6] CB185, [34]

2. The Tribunal, however, was not satisfied that the applicant was threatened and later physically harmed by Awami League members or its supporters because of his bid to gain the support of the BNP in getting his money back from Mr X. That is so because, on the applicant’s own evidence, the BNP had not done anything for him to recover the money, and the applicant had a limited association with the BNP, its members and its political activities. The Tribunal however was satisfied that the applicant was threatened and attacked by persons due to their association with Mr X’s son and Ms X’s son’s opposition to the applicant’s attempts to recover money from his family.[7]

   [7] CB185, [39]

3. Although the Tribunal was satisfied the applicant suffered past harm, it was not satisfied there is a real chance the applicant will suffer serious harm, and thus, has a well-founded fear of persecution if he returns to Bangladesh now or in the reasonably foreseeable future. Nor was the Tribunal satisfied there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant’s being removed from Australia to Bangladesh that there is a real risk the applicant will suffer significant harm for any reason.[8] The Tribunal’s conclusions were based on the following:

   a)the applicant has no future plans or intentions to recover money from Mr X;[9]

   b)the applicant has no connection with Mr X, and he does not know where Mr X is living;

   c)the applicant spent more than six months in Chittagong living with relatives before he departed Bangladesh. This was at the height of his problems with Mr X, and the applicant was not traced or followed to Chittagong either by members of Mr X’s family, or from any other person even though the applicant was living with relatives; [10] and

   d)the Tribunal did not accept the applicant is a politically active member of the BNP or any other opposition party.[11]

   [8] CB187, [46]- [47]

   [9] CB186, [41]

   [10] CB186, [43], [44]

   [11] CB187, [45]

Grounds of application

1. The application for review contains one ground, which is as follows:

   The Administrative Appeals Tribunal made a jurisdictional error when it failed to consider each integer of his claim or failed to take into account the whole of the oral and written evidence in determining whether the applicant has a well-founded fear of being persecuted in one or more of the five reasons set out in the Refugee Convention in Bangladesh and if not whether there are substantial grounds for believing that, as a necessary and foreseeable consequences [sic] of his being removed from Australia to Bangladesh, there is a real risk that he will suffer significant harm.

2. This ground is supported by particulars in which the applicant states that whatever he had forwarded to the Department of Immigration and Border Protection was true and the Tribunal misunderstood or mistook the facts. The particulars repeat the substance of the claim the applicant put to the Tribunal.

3. The applicant, who is not legally represented, made oral submissions at the hearing before me. I asked the applicant whether he had any complaint about the manner in which the Tribunal conducted his review. The applicant said he had a real problem with returning to Bangladesh and he could not understand why the Tribunal did not believe him. The applicant also said that the Tribunal did not take into account the fact that he had undertaken a dangerous journey by boat to come to Australia. He asked rhetorically why he would do that if did not fear being in Bangladesh. He also said he had family in Bangladesh, and would return there if it were safe to do so.

4. The ground stated in the application is not arguable. The Tribunal accurately set out the claims the applicant made, questioned the applicant about those claims and, in fact, accepted the applicant to be credible. The Tribunal, however, was not satisfied that, on the applicant’s evidence, which it largely accepted, the applicant had a real risk of suffering serious or significant harm if he returned to Bangladesh. It is beyond argument these were findings that were reasonably open to the Tribunal for the reasons it gave.

5. As for the submissions the applicant made at the hearing before me, there are two matters to note. First, the Tribunal accepted most of the applicant’s evidence. Second, the Tribunal was well aware the applicant had travelled to Australia by boat. The matters to which the Tribunal was required to direct its attention, however, were the reasons the applicant gave for leaving Bangladesh and for stating why he feared to return to Bangladesh. That a person in the position of the applicant undertook a perilous journey to reach Australia is not capable by itself of compelling a finding that the person undertook the journey because he or she satisfies the criteria for the granting of a Protection visa.

Disposition

1. There is nothing in the Tribunal’s decision or in the material that was before me that is capable of giving rise to an arguable case that the Tribunal made any jurisdictional error. I propose, therefore, to order that the application be dismissed.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Date: 8 September 2017