BUH16 v Minister for Immigration
[2017] FCCA 3212
•20 July 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BUH16 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 3212 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – protection (Class XA) visa – protection (Class XD) visa – political opinion – Bangladesh – Tribunal accepting the applicant faced risk in home region – finding it would be reasonable and practicable for the applicant to relocate within Bangladesh – no jurisdictional error discerned. |
| Applicant: | BUH16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File number: | MLG 1502 of 2016 |
| Judgment of: | Judge Riley |
| Hearing date: | 20 July 2017 |
| Date of last submission: | 20 July 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 20 July 2017 |
REPRESENTATION
| Advocate for the applicant: | In person |
| Solicitors for the applicant: | None |
| Advocate for the first respondent: | Michelle Stone |
| Solicitors for the first respondent: | DLA Piper Australia |
| Advocate for the second respondent: | No appearance |
| Solicitors for the second respondent: | DLA Piper Australia |
ORDERS
The application filed on 15 July 2016 be dismissed.
The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $4,600.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1502 of 2016
| BUH16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second respondent
REASONS FOR JUDGMENT
(revised from the transcript)
This is an application for review of a decision of the Administrative Appeals Tribunal (“the Tribunal”). The applicant is a citizen of Bangladesh. He arrived in Australia on 26 April 2013.
The applicant claimed that:
a)he feared harm on the basis of:
i)an actual or imputed political opinion; and
ii)being a member of a particular social group, consisting of relatively wealthy families in Bangladesh;
b)more particularly, he was a supporter of Jamaat-e-Islami and his father was a well-known supporter of Jamaat-e-Islami;
c)he was at risk of harm from members of the Awami League because neither he nor his father agreed to join the Awami League;
d)he feared harm from outlaws in a neighbouring village;
e)in 2012, he was beaten by armed outlaws and subsequently had to hide at his sister’s home in a neighbouring village; and
f)these attacks occurred because he was from a relatively wealthy family.
The delegate of the Minister did not accept the applicant’s claims and refused the applicant’s application for a protection (Class XA) visa. The applicant then sought review by the Refugee Review Tribunal.
Prior to the hearing, the Refugee Review Tribunal became the Administrative Appeals Tribunal. In addition, there were changes to the Migration Act 1958 and the Migration Regulations 1994, which meant that the applicant’s previous protection (Class XA) visa application was to be treated as an application for a temporary protection (Class XD) visa.
The applicant attended a hearing before the Tribunal, with the assistance of a migration agent. The Tribunal discussed the applicant’s case with him in considerable detail. In particular, it appears from paragraph 65 of the Tribunal’s reasons that the Tribunal put to the applicant whether he could relocate within Bangladesh. The applicant’s response to that was that there were members of the Awami League all over the country. He also told the Tribunal that people were looking for him and they would be able to find him wherever he lived within Bangladesh.
The Tribunal accepted that the applicant had been assaulted in 2012. The Tribunal also accepted that the applicant’s father was known as a supporter of Jamaat-e-Islami. The Tribunal accepted that the applicant and his father had both been pressured to join the Awami League. The Tribunal accepted that the applicant and his father had received demands for money.
However, the Tribunal considered that the applicant had exaggerated his claims. The Tribunal accepted that the applicant had had an involvement with Jamaat-e-Islami at a very low level. The Tribunal did not accept that the applicant had a continuing commitment to or interest in Jamaat-e-Islami. The Tribunal did not accept that the applicant would have an active involvement with Jamaat-e-Islami if he returned to Bangladesh.
The Tribunal noted that the applicant’s father still lived in his home village. Based on this circumstance, the Tribunal considered that the applicant had exaggerated his claims of the difficulties he would face.
The Tribunal considered that the attack on the applicant in 2012 was perpetrated by criminals and was opportunistic. The Tribunal did not accept that the applicant had been targeted in that attack.
The Tribunal did not accept that the applicant’s photograph had been circulated amongst Awami League supporters or that members of the Awami League or any criminals were looking for him.
The Tribunal had considerable doubt about the applicant’s claims. However, the Tribunal did not find that the applicant would not face a real risk of serious or significant harm in his home village. The Tribunal noted that, even if it did accept that the applicant faced a risk of serious or significant harm in his home village, he could relocate elsewhere within Bangladesh.
The Tribunal considered the issue of relocation at some length. The Tribunal did not accept that the alleged opponents of the applicant would find him in other parts of Bangladesh, such as Dhaka. The Tribunal did not accept that the applicant was known to, or of any interest to, Awami League supporters outside his local area. The Tribunal did not accept that the applicant would need to live discreetly in Dhaka because the Tribunal did not accept that the applicant had any genuine desire or commitment to support Jamaat-e-Islami. The Tribunal did not accept that the applicant would face serious harm at the hands of extortionists. The Tribunal considered that the applicant could safely relocate to another part of Bangladesh.
The Tribunal went on to consider whether it would be reasonable, in the sense of practicable, for the applicant to relocate. The Tribunal accepted that he may not have familial support if he were to relocate. However, in view of the applicant being a young man who has worked in a variety of capacities in Bangladesh and, despite having a leg injury, has travelled to Australia and found work here as a cleaner, the Tribunal considered that it would be reasonable and safe for the applicant to relocate within Bangladesh.
The Tribunal accepted that there is political and criminal violence in Bangladesh. However, on the basis of country information, the Tribunal considered that the risk that the applicant would be harmed in such violence was very slight.
The Tribunal also considered the complementary protection provisions. The Tribunal considered that the applicant’s fear of harm was localised and that if he were to relocate, he would not face significant harm, largely for the same reasons that the Tribunal had found that he would not face serious harm.
The Tribunal went on to set aside the delegate’s decision in relation to the (Class XA) protection visa and substituted a decision to refuse the applicant a (Class XD) visa.
The application to this court appears to have been prepared without the benefit of legal assistance. The applicant appeared in court today without a lawyer. The grounds set out in the application are that:
1.The decision of the Tribunal:
(a)is affected by an error of law; and
(b)denied the applicant procedural fairness.
2.I have made an application for assistance through Victorian Legal Aid and am waiting for a decision.
Those grounds were not particularised in the application or in the applicant’s affidavit in support of that application. Nor did the applicant file written submissions elaborating on those grounds.
The second ground is not a ground of review as such. The application was filed on 15 July 2016. It seems likely that Victoria Legal Aid would have made its decision by now, being 20 July 2017. The applicant did not suggest to the court that he was still waiting for a decision from Victoria Legal Aid.
The applicant’s submissions to the court consisted of, firstly, a request for a visa to be permitted to stay in Australia, and, secondly, a statement that, six months ago in Bangladesh, someone was looking for him. These are matters that go to the merits of the case, which this court is not permitted to consider. When asked what he wished to say about what the Tribunal had done that was wrong in some way, the applicant said he had nothing to say.
I have been unable to discern any jurisdictional error in the Tribunal’s decision or decision-making process. The Tribunal appears to me to have correctly applied the law and to have afforded the applicant procedural fairness. The Tribunal invited the applicant to a hearing which he attended with the assistance of a migration agent. The Tribunal discussed relevant issues with the applicant during the course of the hearing. In particular, the Tribunal raised with the applicant the question of relocation and noted the applicant’s response. It seems to me that the Tribunal considered all of the relevant considerations and did not take into account any irrelevant considerations. It seems to me that the Tribunal’s decision was reasonably open to it. For these reasons, the application must be dismissed.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Riley
Associate:
Date: 18 December 2017
1
0
0