BVV16 v Minister for Immigration

[2018] FCCA 2328

FEDERAL CIRCUIT COURT OF AUSTRALIA

BVV16 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2328

Catchwords:
MIGRATION – Application to review decision of Administrative Appeals Tribunal – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.424AA, 424A, 425

Cases cited:

CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146;

(2016) 253 FCR 496

Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41; (2010)

183 FCR 575

Minister for Immigration and Multicultural and Indigenous Affairs v SCAR

[2003] FCAFC 126; (2003) 128 FCR 553

SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235

ALR 609  

Yilmaz v Minister for Immigration and Multicultural Affairs [2000] FCA 906;

(2000) 100 FCR 495

Applicant: BVV16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1886 of 2016

Judgment of: Judge Barnes

Hearing date: 13 August 2018

Delivered at: Sydney

Delivered on: 13 August 2018

REPRESENTATION

Applicant: In person

Solicitors for the Respondents: Minter Ellison

ORDERS

1. The application be dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the sum of $5,600.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1886 of 2016

BVV16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application for review of a decision of the Administrative Appeals Tribunal (the Tribunal) dated 25 June 2016.  The Tribunal affirmed a decision not to grant the Applicant a protection visa.

2. The Applicant, a citizen of Bangladesh, arrived in Australia in March 2013.  He applied for a protection visa in July 2013.  In support of his application, he provided a statutory declaration of 28 June 2013.  He made claims to fear harm based on a past relationship with a girl (Aki) whose brothers were members of the Awami League (AL) and because of his support for Jamaat-e-Islami (JI).  He claimed he had been attacked by AL members. He attended an interview with the delegate.  He provided medical evidence in relation to medical treatment he had undergone in Australia.  The application was refused by the delegate and the Applicant sought review by the Tribunal. 

3. The Applicant was invited to attend a Tribunal hearing.  He provided the Tribunal with a further statement in January 2016, said to clarify his claims.  His migration agent also provided a pre-hearing submission in which it was claimed that the Applicant feared harm on account of his imputed or actual political opinion as being pro-JI and/or pro-Bangladesh Nationalist Party and/or an imputed or actual political opinion of being opposed to the AL on account of his support and membership of JI.  In addition, it was claimed he feared harm for reason of an imputed and/or actual political opinion of being opposed to the AL on account of his relationship with Aki, whose brothers were said to have used their political influence and power as members of the AL to target him because of his previous relationship with their sister. 

4. The Applicant attended the Tribunal hearing.  The only evidence before the court of what occurred in the Tribunal hearing is the material in the courtbook, which indicates that the hearing went for something in the order of three and a half hours and that the Applicant had the assistance of an interpreter, and the Tribunal’s reasons. 

5. After the hearing, the Applicant’s agent asked the Tribunal to provide a copy of what was said to be a picture of the flag of JI the Applicant had drawn during the hearing.  Subsequently, the Applicant provided a statement addressing issues raised during the hearing and a post-hearing submission addressing credibility concerns and issues in relation to the drawing of the JI flag. 

6. In its reasons for decision, the Tribunal summarised the Applicant’s claims as made at various times.  It referred to the post-hearing submissions and the statement.

7. The Tribunal found that aspects of the Applicant’s evidence were vague, evasive, implausible, contradictory and unconvincing.  It also found that he had made new claims throughout the process, that there were a number of inconsistencies in his evidence and that his conduct was not consistent with his claims.  It detailed, at some length, its concerns in relation to the Applicant’s credibility and veracity of his claims before concluding that he was not a witness of truth and that he had fabricated his material claims for the purpose of obtaining a protection visa. 

8. In particular, the Tribunal identified a number of concerns in relation to the Applicant’s claimed support for and membership of JI.  It recorded that at the hearing the Applicant claimed he first became involved with JI in year 8, when he was attending a madrassa, that he took part in demonstrations when he was in year 10, but that he was not aware of whether his father, brothers or other family members were involved with JI.  The Tribunal found this implausible and to be at odds with the Applicant’s claim that members of the AL were aware that he was a member of JI.

9. It considered his evidence and claims about his involvement with JI activities, including the claim that he was a member and was asked by the President of JI to speak to the media about JI when he was 18 years old.

10. It recorded that when asked how JI differed from the BNP and AL, the Applicant’s evidence was that there were fundamental differences, but when asked further, he stated that the differences between the policies of JI and AL were high profile and that the committee discussed the policies but that he could not explain it.

11. The Tribunal asked the Applicant whether, and if so, how he continued to support JI when he went to Malaysia (from 2006 to 2012) and what he had done in Australia.  It recorded his initial response that he had kept in touch by telephone, but his subsequent clarification that it was not possible to support them from Australia, as he could not telephone them.

12. It also referred to the Applicant’s evidence about the policies of JI and the JI flag, and found that the Applicant was unable to correctly identify the colours of the flag and was unable to correctly draw the flag. 

13. The Tribunal expressed concerns about the credibility of these claims.  It found that the Applicant’s evidence in relation to when he joined JI kept changing; that his evidence he was not aware of whether his family members were involved with JI was implausible; that it was also implausible that the President of JI would have asked him to speak to the media about the party when he was 18;  and that he had been unable to answer any questions in relation to the policies of JI, although the Tribunal would have expected that if he had attended meetings on a regular basis he would have some knowledge of its policies.  It also recorded that the Applicant was not aware of the differences between AL and JI.  It found his evidence about how he supported JI while living in Australia was evasive.  While the Tribunal accepted that the Applicant demonstrated some knowledge of what was currently happening with JI in Bangladesh, it was of the view that this was general knowledge that had had a lot of media coverage, both in Bangladesh and internationally.  It also noted that, when asked whether his family had any problems because of his membership of JI, the Applicant was evasive.  He then claimed that they were attacked.  The Tribunal noted that he had never previously claimed his family was attacked because of him and that his subsequent evidence at the hearing was that his family was not attacked, but that family members were questioned about his whereabouts and warned that if he was still in the village there would be a problem. 

14. The Tribunal stated that it had raised at the hearing its concerns in relation to whether the Applicant was either a supporter or a member of JI and that he had asked, in effect, if he could reply at a later time.  The Tribunal gave the Applicant further time to file additional evidence.  It referred to the fact that he subsequently provided an unsigned statement and post-hearing submissions.  He explained that he joined JI between the ages of 16 and 18, and that he misunderstood the question when asked to draw the flag and drew the logo instead.  The Tribunal acknowledged that the drawing looked similar to the logo, although it was not a correct depiction.  However it was prepared to give the Applicant the benefit of the doubt in relation to this issue. 

15. The Tribunal then addressed in considerable detail its concerns about the Applicant’s claims that in 2005 he had fallen in love with a girl named Aki from his village; that her family were opposed to the relationship because they were rich and he was poor and a supporter of JI; that her brothers threatened him to stop the relationship and arranged for her to marry someone else and that they filed a case against him with the police.  He claimed he went to Malaysia in 2006 because he did not feel safe in his village, but returned in May 2012.  He claimed he was then threatened on a number of occasions by a group of men who said they were from AL, knew he was JI and demanded money from him.  He claimed that on the last occasion he was attacked, threatened with a knife and injured, but that he was able to escape and go into hiding before leaving Bangladesh. 

16. The Tribunal recorded in detail issues it raised with the Applicant at the hearing about these claims, including the fact that while he said he knew that Aki was from his village, he did not know her surname.  It recorded that he talked of meeting her at a friend’s house for about a year or in a park.  It recorded that when asked whether his family was aware of the relationship, the Applicant suggested they found out at the end of 2005 when everyone else found out.  He also made claims about threats from Aki’s brothers (one of whom was said to be high profile in the AL) and that arrangements were made for her to marry another person, whom she later divorced.  He claimed he then received a death threat.

17. He also claimed that he followed the “Afadani” religion.  The Tribunal observed that he had not made claims in relation to religion in his visa application, in his departmental interview, earlier during the hearing, or in the subsequent unsigned statement or post-hearing submission.  The Tribunal was satisfied the Applicant was not making any claims in relation to religion and that he raised this issue in the context of it being another reason why Aki’s family was opposed to their relationship. 

18. The Tribunal also recorded that the Applicant claimed that a case was filed against him with the police asserting that he had raped Aki and ransacked and looted her family’s assets.  He then went to Malaysia.  He claimed he was threatened on return and his little finger was cut with a knife.  He feared that he would be killed by Aki’s brothers and other AL supporters.

19. The Tribunal stated that it had a number of concerns with this evidence.  It found that the Applicant’s account of his one year relationship with Aki was implausible.  It had regard to the fact he claimed that they would meet in a public place (like a park in a village) yet also claimed that they were trying to keep their relationship secret.  It was of the view that it was unlikely that they would have been able to do this for 12 months before they were discovered.  It found it implausible that the Applicant and Aki met at a friend’s home for 12 months without the friend’s family finding out or, alternatively, implausible that his friend’s parents were aware of such meetings, condoned the relationship and kept it a secret, having regard to the nature of conservative Bangladeshi society.  The Tribunal also found it highly unlikely that a young single woman from a Bangladeshi village would have put herself in such a compromising situation and risked the loss of her reputation, the wrath of her family and community condemnation. 

20. In addition, the Tribunal had regard to a number of inconsistencies in the Applicant’s evidence. It referred to the fact that it had raised some of these inconsistencies at the hearing and to his submissions and statement in response. It recorded it had put an inconsistency in his claim about whether Aki had lived in the same village or an adjacent village to the Applicant pursuant to s.424AA of the Migration Act 1958 (Cth) (the Act) and addressed his explanation and his migration agent’s explanation provided after the hearing. The Tribunal found these inconsistencies to be of concern.

21. The Tribunal also had regard to the fact that the Applicant had made no mention of some of the claims he made at the hearing in his initial statutory declaration (including, in particular, about Aki getting divorced, returning to her village, her brother confronting him and threatening to kill him and his family advising him to leave).  It found his failure to have raised these matters at the initial stage raised concerns about the credibility of these claims. 

22. The Tribunal considered the Applicant’s claim raised in his January 2016 statement (and at the departmental interview) that Aki’s brothers had filed a case against him with the local police and that he had been summoned to attend Court, having been charged with dishonouring and defiling Aki.  It recorded his evidence that he could not remember the date he was summoned to attend and that the letter from the police remained in Bangladesh.

23. The Tribunal had regard to the fact that the Applicant had made no mention of police charges against him or that he had been summoned to attend Court in his original June 2013 statutory declaration or in his entry interview. It put this information to the Applicant pursuant to s.424AA of the Act. It considered his explanation that perhaps he was afraid and that he was later advised by his migration agent to disclose everything, but it noted that in his statement of 11 February 2016 he did not address this issue. The Tribunal accepted that it was possible that the Applicant did not mention the charges or the summons earlier because he was afraid it would be detrimental to him, but had regard to the fact that after disclosing this information, he had not provided a copy of the “letter” or the summons which he stated was still in Bangladesh, as the Tribunal would have expected.  It found his delay in making these claims and his failure to provide available documentary evidence tended to indicate that these claims were fabricated.

24. The Tribunal also found it implausible that Aki’s brothers would have made an official complaint that the Applicant had dishonoured and defiled Aki, as this would have made the matter public knowledge, bringing shame and dishonour on her and their family.  It did not accept the Applicant’s post-hearing explanation that they had nothing to lose because the family honour was already lost and they needed someone to blame, being of the view that it was highly unlikely that Aki’s family would wish to make a bad situation worse in this way.

25. The Tribunal also found it implausible that the Applicant would have voluntarily returned to Bangladesh from Malaysia in 2012 knowing there were serious charges outstanding against him and that he had not responded to a summons to attend Court.  It found his explanation (that it was a long time ago and he thought that it would die down and that the case may have been withdrawn) implausible and did not accept it.  Nor did the Tribunal accept that a charge of rape would be considered a local, and not a federal, offence and found there was no reason why the Applicant would think the charges had been withdrawn.  It found the Applicant’s conduct in returning to Bangladesh was not consistent with his claims and raised credibility concerns.

26. The Tribunal also had regard to the fact that the Applicant (who travelled to Malaysia on someone else’s passport) had been able to obtain a travel document in his own name to return to Bangladesh and had no problems at the airport.  It found that this indicated he was not of adverse interest to the authorities. 

27. The Tribunal also took into account implausibilities in the Applicant’s evidence about what occurred after his return to Malaysia, in particular his claim that he was surrounded by seven or eight men, at least one of whom was armed with a knife, but that he was able to escape them. It had regard to inconsistencies in his claims about how he evaded these men and about his subsequent medical treatment, which was put to him under s.424AA insofar as it involved evidence given in his interview with the Department.

28. The Tribunal was of the view that inconsistencies in the Applicant’s evidence in this respect raised concerns in relation to the credibility of this claim.  It observed that the Applicant gave three different explanations as to who had treated him and whether this person was from his village.  It accepted there may not be a clear demarcation between villages in Bangladesh, but did not accept that this explained the inconsistencies in the Applicant’s evidence. 

29. The Tribunal addressed medical documents provided to the Department in relation to treatment of and surgery on a dislocated little finger in that respect in Australia.  It recorded that it had discussed these documents with the Applicant at the hearing.  It found that treatment for a dislocated finger was not consistent with his claim that he was assaulted and cut on his finger and that this tended to indicate the treatment in Australia had nothing to do with the claimed attack and knife wound.  It addressed the Applicant’s response and the post-hearing submission, that he was cut and received a dislocated finger after being attacked with a knife.  The Tribunal did not accept this submission, having regard to the Applicant’s evidence that his little finger was cut and that he had not previously claimed his little finger was dislocated.  It found that the medical evidence did not indicate that dislocation of the Applicant’s little finger was consistent with a finger being cut by a knife.  It was not satisfied the medical evidence supported the Applicant’s claims. 

30. The Tribunal also put to the Applicant under s.424AA an inconsistency in his evidence about where he had lived after he returned to Bangladesh in 2012 and whether he was in hiding or in his home village. It referred, in particular, to the fact that he claimed he sometimes went to his home at night. It found this raised a question as to whether he genuinely feared for his safety and also an issue as to whether it was plausible that he was travelling to his home at night, considering the distance between his home and where else he said he was in hiding.

31. The Tribunal also considered the Applicant’s claim that when he returned to Bangladesh from Malaysia, supporters of AL and one of Aki’s brothers had demanded money from him.  It noted that neither the Applicant nor his migration agent had made any claims that he feared extortion for money if he returned from Australia.  It nonetheless considered whether there was a real chance of this occurring.  The Tribunal was unable to find country information that people who returned to Bangladesh from overseas were targeted for extortion because they were considered to be wealthy.  It was not satisfied there was a real chance the Applicant would be at risk of extortion or serious harm as a returnee from Australia who had lived here for a few years. 

32. The Tribunal concluded that the Applicant was not a witness of truth and had fabricated his material claims.  It accepted his claims that he was born in a particular village in Bangladesh and was of Bengali ethnicity and a Sunni Muslim.  It did not accept he belonged to the “Afadani” sect.  It did accept that in 2006 the Applicant travelled to Malaysia on someone else’s passport, used that person’s work visa to work there until 2012, but then obtained a travel document in his own name to return to Bangladesh in May 2012, that he did not work thereafter, but left to travel to Australia in January 2013. 

1. However the Tribunal did not accept that the Applicant was a supporter, member or in any way associated with JI or that any of his family members were associated with JI.  Hence the Tribunal did not accept any of the claims that flowed from this claim.  Nor did the Tribunal accept the Applicant had any desire to be a supporter or member of JI or to have any future association with JI in the reasonably foreseeable future.

2. The Tribunal did not accept the Applicant was in a relationship with a woman named Aki and hence did not accept any of the claims that flowed from this claim. 

3. It did not accept that when the Applicant returned to Bangladesh from Malaysia supporters of the AL, Aki’s brothers or anyone else tried to extort money from him.  While the Tribunal accepted that the Applicant underwent surgery on his little finger in Australia, it did not accept that the injury was for the reasons claimed.  The Tribunal did not accept that the Applicant or any member of his family was of adverse interest to the AL, its leaders, members or supporters or to Aki’s family.  It did not accept that a complaint to the police had been made against him, that charges had been issued against him or that he had been summonsed to Court and had not appeared as required.  It did not accept the Applicant was of adverse interest to the Bangladeshi authorities, including the police and the judiciary. 

4. While accepting that the Applicant may be perceived as well off because he had lived in Australia for some time, the Tribunal was not satisfied there was a real chance he would suffer serious harm for this reason.

5. The Tribunal found that the Applicant did not meet the Refugees Convention criterion.  Having rejected the entirety of his material claims as having been fabricated, it also found, considering his claims individually and cumulatively, that the Applicant did not meet the complementary protection criterion.

6. The Tribunal affirmed the decision not to grant the Applicant a protection visa.

7. The Applicant sought review by application filed in this court on 19 July 2016.  There are five grounds in the application.  This matter was listed for hearing on 27 July 2018.    The Applicant, who was previously legally represented, did not file any amended application.  His lawyer filed a notice of withdrawal dated 20 July 2018 on 26 July 2018.  The Applicant filed a notice of address for service on 23 July 2018.  When the matter came before the court on 27 July 2018 the Applicant said that he had not received a copy of the courtbook or the First Respondent’s submissions.  In these circumstances I adjourned the hearing.  The Applicant was given a copy of the courtbook and the Minister’s submissions, which were translated for him.

8. On 27 July 2018 the Applicant had handed up a submission (which was filed).  Today he handed up a supplementary submission, which he says is in response to the Minister’s written submission.  It has also now been filed.

9. I have considered the issues raised by the Applicant in his application, in both sets of written submissions and in oral submissions today.

10. It is convenient to deal first with the grounds in the application.  Insofar as the grounds assert that the Tribunal erred in not finding that the Department erred in making certain findings, this reveals a misunderstanding of the Tribunal’s role.  The Tribunal’s role was not to identify error in the manner suggested, but rather to conduct a de novo review.  To the extent that the grounds complain about the delegate’s decision, it is not reviewable by the court in these proceedings (see s.476(2)(a) of the Act).  Further, even if the delegate did fall into any error of the nature contended for by the Applicant, such error would be cured by a validly made decision of the Tribunal (see Yilmaz v Minister for Immigration and Multicultural Affairs [2000] FCA 906; (2000) 100 FCR 495 at [92]).

11. However, on the assumption that the Applicant also wished to take issue with the Tribunal decision and procedures, the Minister has addressed and I have considered, whether any of the grounds can be seen as identifying jurisdictional error on the part of the Tribunal.  In this sense the first ground may be seen as asserting that the Tribunal failed to “consider” that the Applicant was a victim of persecution for his political belief as an activist of JI before his departure from Bangladesh.

12. If this can be seen as a contention that the Tribunal failed to consider this aspect of the Applicant’s claims, such a contention is not made out.  As is apparent from what is set out above, the Tribunal considered in some detail the Applicant’s claims about membership of, involvement in and support for JI prior to his departure from Bangladesh. It also asked him about his involvement and support while in Australia. 

13. The Tribunal detailed its concerns, including about implausibilities and changes in aspects of the Applicant’s evidence in relation to his claimed involvement with the JI party.    It recorded that it raised concerns with the Applicant in the Tribunal hearing, it considered the Applicant’s responses and gave reasons for its lack of satisfaction in relation to various aspects of the Applicant’s claims, including having regard to his lack of knowledge in relation to the policies of JI and the implausibility of his claim that the President of JI asked him to speak to the media about the party when aged 18, as well as his lack of awareness as to whether any of his family members were involved with JI.  The Tribunal also understood the Applicant’s claim that he had joined JI between the ages of 16 and 18, as he explained in his post-hearing submission, but for the reasons given, was not satisfied in that respect.  Its findings in this respect were reasonably open to it for the reasons it gave on the material before it.

14. I also note that the Applicant was given the opportunity to provide evidence after the Tribunal hearing in relation to his involvement with JI.  He did not do so except in relation to the drawing he had made.  The Tribunal understood and had regard to the explanation the Applicant and his adviser provided in relation to his misunderstanding as to whether he had been asked to draw the flag or the logo of JI.  The Tribunal did not place any weight on this issue.

15. This ground is not made out. 

16. The next ground complains of a lack of procedural fairness.  This appears to be related to a contention that the Department (or perhaps the Tribunal) did not “consider” that the Applicant was physically abused for his political belief and that his life was at risk which had forced him to leave Bangladesh.  He also took issue with the fact that he was not accepted as a credible witness by the Tribunal.

17. Insofar as this is a general concern about the Tribunal’s credibility findings, I bear in mind that credibility findings are not immune from review as considered and discussed in CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496.

18. In this case, on the material before the court, there is nothing to support any contention of a lack of procedural fairness, whether seen in terms of the Tribunal’s obligations under Part 7 of the Act or otherwise. The Tribunal pointed out at a number of places in its decision that it had specifically raised information with the Applicant under s.424AA of the Act which was information that the Applicant had given orally in the departmental interview. It recorded that it explained its concerns about inconsistency with other information. The Applicant has not identified any information subject to the s.424A(1) obligation in respect of which there was any non-compliance by the Tribunal with s.424AA of the Act. As pointed out in submissions for the Minister, insofar as the Applicant’s concern related to information in his written statements or statutory declaration, the Tribunal was not obliged to put such information to him under s.424A(1) (or utilising s.424AA), having regard to the exemption in s.424A(3) of the Act. No failure to comply with s.424A of the Act has been established.

19. Nor has it been established that the Tribunal failed to meet its obligation to provide a meaningful opportunity to the Applicant to give evidence and present arguments relating to the issues arising in relation to the decision under review as required under s.425 of the Act. Insofar as in this ground and in submissions the Applicant complained of a lack of procedural fairness in the Tribunal hearing, the only evidence before the court as to the conduct of the hearing is in the courtbook and the Tribunal reasons. These do not support any such allegation, but rather appear to suggest that the Tribunal raised dispositive issues with the Applicant. There is no transcript of the Tribunal hearing in evidence. It has not been established that the Tribunal failed to raise dispositive issues with the Applicant.

20. Nor is there any other basis on which it has been established that the Tribunal failed to afford the Applicant procedural fairness.  The fact that the Tribunal did not accept the Applicant’s claims, either specifically or generally, is not in itself indicative of a lack of procedural fairness. 

21. This is not a case in which it has been established that the Tribunal reached a finding without any logical or any probative basis.  There was an evident and intelligible justification for the Tribunal’s findings as set out in its decision.  There is nothing in this case to support a contention of legal unreasonableness or other jurisdictional error of that nature. 

22. Ground 2 is not made out.

23. Ground 3 takes issue with the Tribunal’s failure to “accept” that the Applicant experienced persecution and would be imprisoned and tortured if returned to Bangladesh.  It also complains that the Tribunal refused the claim on the ground the Applicant was not a credible witness, even “though [he] presented all relevant documents and evidences in support of [his] claims before the Tribunal prior to hearing”.  Apart from seeking impermissible merits review, this appears to be a contention that the Applicant put sufficient evidence before the Tribunal for it to accept his claims.  There does not appear to be any suggestion that he provided documents that were not considered by the Tribunal and there is no indication that this is the case.  The Tribunal expressly considered the medical evidence as well as the statements and submissions the Applicant provided.  It found the medical evidence about treatment and surgery in Australia did not support the Applicant’s claims.  It considered the logo he had drawn and, as indicated, did not take his confusion about the logo and flag or any deficiencies in the drawing of the logo into account in reaching its findings.  It addressed his written statements and submissions after giving him the opportunity to provide post-hearing submissions. 

24. Insofar as the Applicant contended in this ground that he presented “all relevant documents and evidences”, it was reasonably open to the Tribunal to have regard to the fact that while the Applicant claimed that he had been subject to charges and had not responded to a summons, after he disclosed this information he had not provided either the Department or the Tribunal with a copy of the letter or summons, although he had stated that this evidence was still in Bangladesh.  The Tribunal found that it would have expected the Applicant to have provided such evidence in circumstances where he was claiming that documentary evidence was available to him to support his claims.  No jurisdictional error has been established in that respect.  I also note that this was not the sole basis for the Tribunal’s credibility findings.  Ground 3 is not made out.

25. Ground 4 expresses disagreement with the finding that the Applicant did not meet the Refugees Convention criterion.  In this respect it does no more than seek impermissible merits review.  Ground 5 is a little hard to understand.  It is that the “punishment would be completely politically motivated”.  This is not exactly what the Applicant claimed, insofar as part of his claim to fear harm related to his past asserted relationship with Aki.  In any event, the Tribunal considered the Applicant’s claim to fear harm and the bases on which he claimed to fear such harm.  It also considered (although it was not clear that the Applicant was making such an express claim) any possibility that the Applicant had a real chance or real risk of facing extortion amounting to persecution or significant harm, as set out above.  These grounds do not establish jurisdictional error.

26. In paragraphs 1 and 2 of the written submission of 27 July 2018, the Applicant recited his history.  In paragraphs 3 and 4, he claimed to believe in the political ideologies of JI, that he practised political belief and that he was subject to persecution by the AL and that “even today” his family members were experiencing persecution.  Insofar as he re-iterates his persecution claims, this does not go beyond seeking merits review.  As I endeavoured to explain to the Applicant, merits review is not available in this court. 

27. Insofar as he made claims about what has happened to his family, the Applicant confirmed that the claimed incidents involving his older and younger brothers (in paragraphs 5 and 6) were both said to have occurred after the Tribunal decision.  Similarly, in paragraph 7, he claimed that the AL “is” pursuing his family to change their political belief from being JI to AL.  As these events are said to have occurred after the Tribunal decision, they are not matters that the Tribunal could have taken into account.  If the Applicant now claims that circumstances have changed in Bangladesh, as pointed out by the solicitor for the First Respondent, that is a matter that he may raise with the Minister, for example by seeking to have the s.48A bar on making a second protection visa application lifted, but it is not indicative of jurisdictional error. 

28. The Tribunal did consider the Applicant’s late claim that his family was at risk, although it was not put on the basis now put in his submission (that the AL sought to change the family’s political belief from JI to AL).  As set out above, the Tribunal recorded that when asked whether his family had any problems because of his membership of JI the Applicant was evasive, then claimed for the first time that they had been attacked, but then indicated that they were not attacked, but were questioned about his whereabouts and warned if he was still in the village there would be a problem.  There is nothing to indicate that the Applicant made other claims before the Tribunal in this respect.  The Tribunal considered the claim that he did make.  These paragraphs of the July submission do not establish jurisdictional error on the part of the Tribunal.

29. Finally, in paragraph 8 of the July submission, the Applicant claimed he feared for his safety and that he had been unsuccessful in conveying this to the Department and the Tribunal, but submitted there was a “clear jurisdictional error”; “wrong interpretation” of the Act and a “denial of natural justice”.  I gave the Applicant the opportunity to elaborate on these claims.  In response, the Applicant suggested, in effect, that the denial of procedural fairness was that the Tribunal did not accept his claims and that it was not a fair decision because he told “all the truth”, but the Tribunal decided on the basis that he was not telling the truth.  He took issue with why would that would be so, and why he would come to Australia, if he was not at risk. 

30. In essence, the Applicant indicated that his disagreement was with the Tribunal’s conclusions. However these concerns do not establish jurisdictional error, whether on the basis of a denial of natural justice or a wrong interpretation of the Act (which the Applicant was not able to elaborate on further). As indicated, there is no material to suggest that the Tribunal failed to comply with s.425 or s.424A of the Act or otherwise denied the Applicant procedural fairness.

31. As the Minister’s solicitor pointed out, in the supplementary submission handed up today (and filed for the Applicant) the Applicant appears to be attempting to provide different explanations for some of the concerns expressed by the Tribunal.  The submission explained that his claim was that he was an active member of JI and had participated in political activities and took issue with the fact the Tribunal found this implausible.  These concerns do no more than seek merits review.  Further, the Tribunal did not make its adverse credibility findings solely on the basis of that implausibility finding, rather it took this into account as one of many factors. 

32. The submission claims that “The Tribunal asked me questions on JI policies, which I may have failed to recollect correctly, as I have lost my memory due to stress and trauma that I suffered over the period until today”.  If this is an explanation for the Applicant’s failure to give adequate evidence at the Tribunal hearing it appears that it is not a matter that he raised with the Tribunal (whether at the hearing or indeed in his post-hearing statement and submissions).  If this is intended to raise an issue as to the Applicant’s fitness to participate in the hearing in the manner considered by the Full Court of the Federal Court in Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126; (2003) 128 FCR 553 (and see Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41; (2010) 183 FCR 575) there is no evidence at all before the court to support any contention that the Applicant was not in a fit state at the time of the Tribunal hearing such that he was denied a meaningful opportunity to participate in the hearing.

33. In paragraph 2 of these submissions the Applicant purported to give further evidence about his relationship with Aki being in secret, about their meetings in public (but “secret”) places and suggested that the Tribunal erred by “imposing its thoughts on evidence”.  It was for the Tribunal to make a decision as to whether it was satisfied that the Applicant met the criteria for a protection visa and in this context to consider whether it was satisfied as to the various elements of the Applicant’s claims, including those based on his claimed relationship with Aki.  It has not been established that the Tribunal’s reasoning in relation to the claimed relationship with Aki was irrational or illogical or involved legal unreasonableness; that the Tribunal failed to understand or consider any integer of the Applicant’s claims; or that it took into account irrelevant considerations.  Its reasoning in this respect was, as the solicitor for the Minister described it, unremarkable, having regard to the material before it.

34. In paragraph 3 the Applicant denied there was any inconsistency between the evidence in his statutory declaration and his evidence at the Tribunal hearing.  When asked to elaborate on this claim, the Applicant took issue with the Tribunal’s conclusions rather than identifying particular alleged inconsistencies which were not in fact inconsistent.  This claim is not made out.

35. Insofar as the Applicant expresses a concern that the Tribunal reached conclusions without giving him an opportunity to comment and in that way denied him procedural fairness, the evidence before the court is to the contrary. It is apparent from the Tribunal’s reasons that it raised a number of issues with the Applicant in relation to its concerns about his evidence, including in relation to inconsistencies. It gave him the opportunity to provide evidence and submissions after the hearing and took those into account. It specifically put to him information that it regarded as subject to s.424A(1) pursuant to s.424AA of the Act. There was no obligation on the Tribunal to put to the Applicant its thought processes or mere “inconsistencies” under s.424A of the Act (see SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609 at [17]-[18]).

1. In paragraph 4 the Applicant provided an explanation for the limited evidence that he gave in his arrival interview, in particular why he decided not to disclose information about his “court matter” at the arrival interview.  Insofar as he seems to take issue with the Tribunal reasoning in this respect, as indicated above, the Tribunal in fact accepted that it was possible the Applicant did not mention the charges and summons earlier because he was afraid it would be detrimental to him, but had regard to the fact that after he did disclose these claims, he had not provided a copy of a letter or summons that were still in Bangladesh and available to him.  It was in those circumstances that the Tribunal found that this failure (and the delay in making these claims) tended to indicate these claims were fabricated.  The explanation the Applicant now provides is not indicative of jurisdictional error on the part of the Tribunal.

2. In paragraph (e) the Applicant provided a more detailed explanation in relation to his reason for returning to Bangladesh in 2012, including that his employer forced him to do so by issuing a travel pass.  It appears from the Tribunal’s account of what occurred at the hearing that the Applicant claimed he obtained a travel pass to return but did not raise this additional issue at the time.  In any event, the explanation that he now provides is not indicative of jurisdictional error on the part of the Tribunal.  There is no suggestion that he provided this explanation to the Tribunal and that it failed to have regard to it.

3. The concluding paragraphs of this submission (paragraphs (f) and (g)) submit that the Applicant faced harm in Bangladesh and was persecuted for his political belief and understanding and submit that the Tribunal erred in making a decision as to whether he met the criteria.  Such submissions do not identify jurisdictional error on the part of the Tribunal. 

4. I have already addressed some matters that the Applicant raised orally.  He also complained that he told the truth to the Tribunal and that he had not had a fair hearing.  He was concerned about the decision and the fact that his evidence and claims were not accepted.  As indicated, it has not been established that the Tribunal failed to meet its obligations under the Act or otherwise denied the Applicant procedural fairness or that its credibility findings were not reasonably open to it on the material before it for the reasons which it gave.  Insofar as the Applicant is dissatisfied with the outcome of the Tribunal review, that in itself does not establish jurisdictional error and does not go beyond seeking impermissible merits review.

5. In submissions in reply, the Applicant said (for the first time) that he wanted to give more documents but they did not believe anything he said, so what was the point.  It was not entirely clear what he meant by this, as he had had the opportunity to provide pre-hearing submissions, oral submissions, post-hearing submissions and also a post-hearing statement to the Tribunal, which the Tribunal took into account.

6. The Applicant also complained that he told the Tribunal he was “sort of” in hiding when he returned to Bangladesh from Malaysia, but that the Tribunal did not believe him.  The Tribunal considered his claims in that respect, including whether he was hiding in his village or in a different village and the plausibility of his claim he was returning home on occasion having regard to the distance between the two villages.  It was not satisfied with his explanation in that respect and also was of the view that returning home as he claimed raised concerns as to whether he genuinely feared for his safety. 

7. No jurisdictional error has been established on any of the bases raised by the Applicant in written or oral submissions or in the grounds of review.

8. As no jurisdictional error has been established, the application must be dismissed.

9. The Applicant has been unsuccessful, and the Minister seeks costs in the sum of $5,600.  The Applicant said “How will I give the money?  I don’t have the money”.  I take this to be a claim of impecuniosity.  However, that in itself is not a reason for departing from the normal principle that the unsuccessful applicant should meet the costs of the First Respondent.  The costs should, as is the usual result, follow the event.  I note in that respect that the amount sought is less than the suggested amount in the Schedule to the Federal Circuit Court Rules 2001 (Cth) as applicable at the time of application, notwithstanding that this matter required two hearings in the circumstances described above. The amount sought is both reasonable and appropriate.

I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgment of Judge Barnes

Date:  22 August 2018