BYB16 v Minister for Immigration

[2018] FCCA 2469

FEDERAL CIRCUIT COURT OF AUSTRALIA

BYB16 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2469

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

Legislation:

Migration Act 1958 (Cth), ss.36, 424AA, 424A

Cases cited:

BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94

Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA

17; (2001) 205 CLR 507

MZYXS v Minister for Immigration and Citizenship [2013] FCA 614

Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs

[2006] HCA 63; (2006) 228 CLR 152

SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013]

FCA 774

Applicant: BYB16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1943 of 2016

Judgment of: Judge Barnes

Hearing date: 23 August 2018

Delivered at: Sydney

Delivered on: 23 August 2018

REPRESENTATION

The Applicant: In person

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application be dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the sum of $7,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1943 of 2016

BYB16

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 20 June 2016, affirming a decision of the delegate of the First Respondent not to grant the Applicant a protection visa. 

2. The Applicant, a citizen of Bangladesh, arrived in Australia in December 2012.  He lodged a protection visa application in May 2013.  He provided a statutory declaration in support of his application in which he claimed to fear harm as an active member and supporter of the Bangladesh National Party (the BNP).  He claimed he had been a member of the BNP for about 15 years and that he had been attacked by members of the Ameglick party (later described as the Awami League (the AL)) who tried to persuade him to join their party.

3. He also claimed that in late August 2011 a journalist was murdered in Bangladesh, that he was told by a policeman that he was one of six suspects and that the government planned to wrongly implicate him in this murder so they could arrest him.  He claimed that this was because of his involvement with the BNP.  He claimed to fear being harmed by the government and government supporters by reason of his political opinion and also that he would be wrongfully accused of murder.

4. The delegate refused the application.  The Applicant sought review by the Tribunal.  His adviser provided written submissions to the Tribunal which reiterated the claim that the Applicant feared persecution on the basis of his political opinion as a long-time supporter of the BNP who had been encouraged to join the party by friends.  It was claimed he had supported the BNP for over 15 years, that after approximately five years he had been beaten by people who supported the AL; that he had been continually asked to join the AL and leave the BNP; that he had been involved in a 2008 election campaign and attended party meetings thereafter; that in 2011 he was again approached to join the AL, but refused to do so; and that he was wrongfully implicated in the murder of a journalist in August 2011.  The submission also addressed concerns of the delegate and country information.

5. The Applicant attended a Tribunal hearing on 8 December 2015.  The only evidence before the court of what occurred in that hearing is the Tribunal's account in its reasons for decision. 

6. On 20 June 2016 the Tribunal affirmed the decision under review.  In its reasons for decision, it summarised the Applicant's claims in support of his protection visa application and referred to the documents provided to the Department, in particular untranslated newspaper articles, a chairman’s certificate, identity documents and a voter ID Card.

7. The Tribunal considered the Applicant's evidence at the Tribunal hearing.  It expressed a number of concerns in relation to the Applicant’s credibility and the veracity of his claims which formed the basis for its subsequent finding that he was not a witness of truth and that he had fabricated his material claims for the purpose of obtaining a protection visa.  It had regard to contradictions, implausibilities, inconsistencies and unconvincing aspects of the Applicant’s evidence and was also of the view that his actions were not consistent with his claims.

8. The Tribunal recorded that it discussed with the Applicant his claims in relation to his association with the BNP and the problems he had as a result.  It described his claims in this respect and his responses when asked about policies and procedures of the BNP and to describe the BNP flag.  While the Applicant claimed he became a supporter of the BNP in 1997 and a member in about 2008, the Tribunal found that his evidence about the procedure to become a member of the BNP was not consistent with country information and that his response when concerns were raised with him about whether he was ever a member of the BNP (that he understood) did not alleviate its concerns.

9. The Tribunal also found that the Applicant's response when asked about BNP rules and regulations was vague and that when it had asked him questions about the principles of the BNP, its aims and objectives he was unable to answer.  The Tribunal stated that it was mindful of the fact that the Applicant was from a village in Bangladesh and had a limited education and was therefore unlikely to have a sophisticated understanding of policies of the BNP, despite his claim that he joined because he liked their rules and regulations and believed in what the party stood for.  The Tribunal recorded that it therefore asked the Applicant to draw or describe the flag of the BNP party, but that he had been unable to do so and when asked about the colours of the flag, he had been unable to answer.  The Tribunal was of the view that if the Applicant had been associated with the BNP since 1997, had attended processions, was involved in the 2008 election campaign, and had attended BNP party functions in Australia as he claimed, he should be familiar with the BNP party flag. 

10. The Tribunal recorded that it raised with the Applicant its concerns in relation to his poor knowledge of the BNP and that this was inconsistent with his claims.  It found that his response (that he did not want to say anything and had nothing to say, and that if a person who rode a rickshaw could be a member why couldn't he) did not address the issue it raised.

11. The Tribunal had regard to the departmental decision record (given to it by the Applicant) in relation to his production to the delegate of a voter ID card issued in 2006 or 2007, despite his earlier evidence that he had never had a voter ID card.  It found his evidence about this card was inconsistent and that this also raised concerns in relation to his credibility.

12. The Tribunal also had regard to the fact that while the Applicant claimed he was an active and hardworking BNP supporter since 1997 and a member since about 2008 who spoke to people about voting, campaigned for the BNP in the 2008 national election, and claimed that members of the AL wanted him to join them for this reason, he had also stated he had never voted for the BNP.  The Tribunal observed that the Applicant did not claim that it was problems with his voter ID card that had prevented him from voting.  It found his failure to have ever voted for the BNP to be inconsistent with his claims.  Insofar as the Applicant explained this failure on the basis that he did not vote in the 2008 national election because the situation was not favourable and he could have been shot, the Tribunal had regard to country information as to the numerous elections in Bangladesh since 1997 in which the Applicant could have voted for the BNP.  It found that his failure to do so raised concerns in relation to the credibility of his claims. 

13. The Tribunal also had regard to the Applicant's incorrect evidence about the name of the local BNP candidate in the national 2008 election.

14. Further, the Tribunal found the Applicant’s claims that he was attacked by members of the AL and left unconscious were implausible, particularly as he claimed that this was done because members of the AL wanted him to join them and that they had continued to ask him to do so.  The Tribunal would have expected that if this was so, the AL would have offered the Applicant incentives to persuade him to join, rather than proceeding in the manner he suggested occurred.  It also found that his claim that he did not report the attack to the police was implausible in light of his evidence he had a friend who was a policeman and supported him.

15. The Tribunal took into account the fact that during the hearing the Applicant claimed that as a result of the claimed attack he had lost his memory and was “short of memory”.  It noted the absence of any medical or psychological evidence in this respect.  Having observed the Applicant during a lengthy hearing and interacted with him, the Tribunal was satisfied that he was able to participate in the hearing in a meaningful way.

16. The Tribunal considered the claim that a “famous” named journalist was murdered in August 2011 and that the Applicant was falsely implicated and that there was a case against him.  The Tribunal acknowledged that the Applicant had produced to the Department an undated, untranslated article which he claimed was a report on the murder of this person, but took into account that it was unable to find any country information recording that a journalist of the suggested name was killed in Bangladesh in 2011.  This raised concern in relation to the credibility of the Applicant's claims and the authenticity of the article he had provided.   The Tribunal noted that the Applicant had nothing to say when this issue was raised with him, beyond claiming it was the truth, but he could not prove it.  Further, the Tribunal had regard to the fact that a human rights organisation in Bangladesh which reported on human rights in Bangladesh had not reported that any journalists were killed in Bangladesh in 2011.  It preferred the evidence from such organisations to the Applicant's evidence in this respect.

17. The Tribunal also had regard to an inconsistency in the Applicant’s claims about the number of times the police had come to his home after the claimed murder of the journalist.  It also found that his evidence that during the time he was in hiding at his uncle's home he went to his uncle's shop in the bazaar and had tea in the bazaar to be inconsistent with his claims that he was living in hiding.

18. The Tribunal also referred to contradictory evidence in relation to whether the Applicant had ever applied for a passport and to the fact that while the Applicant claimed he was falsely implicated in the murder of a prominent journalist and that police had looked for him on at least two occasions thereafter and there was a police report and case against him, he did not leave Bangladesh until some 1 year and 3 months after the claimed murder.  The Tribunal was of the view that it would have expected that in these claimed circumstances the Applicant would have made arrangements to leave Bangladesh as soon as possible.  It had difficulty accepting his evidence that he did not get the opportunity to do so and was trying to do so, in light of his evidence that many of his friends went to India and he should have been able to join them.

19. The Tribunal also found that the fact that the Applicant undertook a Malaysian language course before leaving Bangladesh was not consistent with someone trying to flee his country at the first available opportunity. 

20. Also, the Tribunal found the Applicant's evidence to the Department that he had provided false information during his entry interview (which it put to him under s.424AA of the Migration Act 1958 (Cth) (the Act)) raised issues in relation to his credibility. It recorded his response that he could not remember what he said when he came to Australia.

21. The Tribunal was not persuaded by the adviser's submissions addressing the vagueness and lack of detail in the Applicant's claims to the Department.

22. As indicated, the Tribunal concluded that the Applicant was not a witness of truth and that he had fabricated his material claims for the purpose of obtaining a protection visa.  It did not accept he was or is a supporter or member of the BNP and hence did not accept any claims that flowed from that.  It did not accept he was associated with the BNP in Australia or that he had any desire to be associated with the BNP if he returned to Bangladesh.  Nor did it accept that the Applicant was falsely implicated in the murder of a journalist in late August 2011 and went into hiding thereafter or that he left Bangladesh for the reasons claimed.  It did not accept he applied for a passport but was unable to obtain one because of a police report or case against him.  It did not accept he was or is of adverse interest to the Bangladeshi authorities or to the AL, its supporters or members.

23. The Tribunal did accept that the Applicant was unemployed in Bangladesh from 1997 to 2012, that he undertook a 6-month Malaysian language course before he left, that he did not wish to return to Bangladesh because of the generalised violence there and that he preferred to live in Australia.  However it was not satisfied there was a real chance he would suffer serious harm for any of the reasons claimed now or in the reasonably foreseeable future.  It found he did not meet the Refugees Convention criterion.

24. The Tribunal considered the complementary protection criterion, which it summarised.  It pointed to the fact that it had considered the Applicant's claims.  In view of its findings, it was not satisfied there was a real risk the Applicant would suffer significant harm for any of the reasons claimed if he returned to Bangladesh now or in the reasonably foreseeable future.  It stated that, having considered all his claims individually and cumulatively and the evidence and submissions, it was not satisfied that the Applicant would be subject to any of the various kinds of significant harm specified in the Act.  It found that he did not meet the complementary protection criterion.

25. The Applicant sought review by application filed in this court in July 2016.  There are two grounds in the application.  The Applicant was given, but did not take, the opportunity to file an amended application, a transcript, other affidavit evidence and/or written submissions.  At the start of the hearing today, I asked him if he had anything to add to the grounds in his application.  He said “no”.  I asked him if he had any concerns about the Tribunal decision or procedures beyond what was in the grounds.  He said “no”.

26. However, I note, for the sake of completeness, that in submissions in reply the Applicant complained that his name had been wrongly recorded by the Department on some other occasion and had not been corrected and that this was causing him difficulties in everyday life dealing with banks and so on.  He contended that if they could not get his name right, how could they give him a proper decision.  It emerged that his concern was that his first name, which appears in full in the documents in the court book (including the delegate’s decision and notification letter) and in his statutory declaration, was abbreviated in some other documents.

27. I explained to the Applicant that there was nothing that this court could do in these proceedings in relation to this difficulty.  Relevantly, however, there is also nothing in the material before the court to support any contention that any mistake in relation to the manner in which the Applicant's name was recorded in any departmental records in any way affected the decision or procedures of the Tribunal.  It correctly referred to the Applicant by what he explained was his full name, consistent with the name that he used in the protection visa application and the statutory declaration in support of that application.

28. Turning to the grounds in the application, the first ground is that the Tribunal acted without or in excess of jurisdiction when it failed to take into account relevant considerations, failed to follow procedural prerequisites, made a decision on irrelevant findings of fact and failed to fulfil its review function by not dealing with the particular and specific issues directly relevant to the Applicant's claim for protection.  There are several particulars to this ground, some of which are numbered, which I take to incorporate the concerns of the Applicant.

29. The first particular merely refers to s.65 of the Act and the obligation on the decision-maker to make a determination as to whether criteria are satisfied. Insofar as there is intended to be a contention that the Tribunal failed to do this, the decision record is to the contrary. The Tribunal considered the criteria in s.36(2)(a) and in s.36(2)(aa) of the Act for a protection visa and noted that there was no suggestion that the Applicant satisfied s.36(2) on the basis of being a member of a family unit.

30. The particulars also refer to aspects of the Applicant's claims and state that at the time of the Tribunal hearing the Applicant continually claimed he had been active in the BNP for 15 years; that this resulted in harm (which he detailed); that he was harassed by being asked to join the Ameglick party and leave the BNP; that he refused to do so; and that when he came to Australia he actively participated in BNP party meetings.

31. Insofar as the Applicant's contention is that the Tribunal failed to take into account any aspects of these claims, this is not made out.  It is apparent from the Tribunal decision that it understood, engaged with and considered these claims.  It also recorded an inconsistency in relation to whether his claim was that he had troubles with the Ameglick Party, as referred to in earlier written claims, or, as he later explained, the AL.  It considered his claims as he explained them.  The fact that the Tribunal did not accept the Applicant's claims in light of its adverse credibility finding does not amount to a failure to take into account relevant considerations.  Insofar as this ground may be seen as otherwise taking issue with the Tribunal's credibility finding, while credibility findings are not immune from review (see BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94 per Perram, Perry and O’Callaghan JJ at [32]-[38] and cases cited therein) in this case, on the material before it and for the reasons given, the Tribunal's credibility findings were reasonably open to it on the basis of logical and probative evidence.

32. Furthermore, to the extent that this ground may be seen as a contention that the Tribunal denied the Applicant procedural fairness, such a claim has not been established. It is apparent from the Tribunal's reasons that at the hearing it invited the Applicant to comment on certain information pursuant to s.424AA of the Act and considered his response. As the First Respondent submitted, information contained in the delegate's decision record provided to the Tribunal by the Applicant, is within the exception in s.424A(3) of the Act and does not engage the obligation under s.424A(1) of the Act. Also, it is not apparent on the material before the court that the Tribunal failed to raise dispositive issues with the Applicant in the sense considered in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152. I also note that it was apparent from the delegate's reasons for decision that the credibility of the Applicant was in issue.

1. It is also well-established that the Tribunal is not obliged to accept uncritically any and all claims made by an applicant.  In this case, where the Tribunal rejected the Applicant's claims due to detailed credibility concerns as to inconsistencies and inherent implausibilities, his lack of knowledge of the BNP as discussed in some detail, and issues in relation to his claim about being wrongfully implicated in the murder of a journalist, the Tribunal's adverse credibility findings were reasonably open to it on the material before it. 

2. There is nothing in the material before the court to support any contention of legal unreasonableness.  Nor has it been established that the Tribunal failed to follow any of the applicable procedural requirements.  Insofar as this ground may be taking issue with anything that occurred in the Tribunal hearing, there is no transcript of the Tribunal hearing in evidence to support any such contention.

3. In the unnumbered particular after particular 4 to ground 1, reference is made to the fact that the Tribunal noted its serious concern about the Applicant’s credibility and came to the conclusion that he had not told the truth in relation to crucial aspects of his claim.  It is contended that at the hearing the Tribunal member “unnecessarily asked questions on irrelevant matters to confuse the applicant and discredit his oral evidence”.  It is claimed that the Tribunal ignored its obligations and function “when it raised irrelevant issues on irrelevant matters”.

4. The Applicant has not identified the matters that were said to be irrelevant, either in the sense of constituting an irrelevant consideration or otherwise.  There is no evidence to support his contention that at the hearing the Tribunal acted in a manner that was of concern.  If the Applicant is intending to raise a suggestion of either actual or apprehended bias, there is simply nothing in the material before the court to support such a contention (see Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 per Gleeson CJ and Gummow J at [69] and Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425).

5. I note that, as recorded above, the Tribunal considered the Applicant's claims about his loss of memory in light of the absence of any medical evidence and its opportunity to observe the Applicant in a lengthy hearing and to interact with him.  There is no suggestion that the Applicant was not fit to participate in the Tribunal hearing.

6. Finally, what is probably the essence of ground 1 is in the last particular. It incorporates a claim that whatever the Applicant submitted to the Tribunal in support of his claim was true and correct and that the Tribunal “overlooked the relevant facts” relating to his membership of the BNP and continuous support at the time of the election in 2008.

7. However, the Tribunal considered the Applicant's claims about his membership of the BNP and involvement in the 2008 election.  It did not find such evidence credible and did not accept these material aspects of his claims.  In essence, the Applicant appears to be inviting the court to undertake impermissible merits review in this respect.  Ground 1 does not establish jurisdictional error.

8. Ground 2 is that the Tribunal's reasons are “confused” and that the test for persecution was not applied according to the rules of the Act and according to complementary protection provisions under s.36(2)(aa) of the Act. The particulars to this ground repeat the Applicant's claimed fear of harm based on support for the BNP, fear of Ameglick members and allegations of involvement in the murder of a journalist. He also repeats his claims that he knew this from a friend who was a policeman and that the police were searching for him and coming to his home to arrest him. The particulars state that the Tribunal asked the Applicant questions about his claims about the murder of the journalist, that he said he had provided whatever documents he had to the Tribunal, that he believed he had been charged and that if he went back to Bangladesh he would be arrested and interrogated. The repetition of these claims does not establish jurisdictional error.

9. This ground also contends that the Tribunal “unduly” adopted a “harsh approach” in assessing the fear of harm and did not follow the “rules” of the real risk test of persecution and harm and failed to take into account all the circumstances of fear and harm in which the Applicant lived in Bangladesh.  This part of ground 2 appears to take issue with the Tribunal's adverse credibility findings to which I have referred to above.  The Applicant's disagreement with the Tribunal's failure to accept the credibility of his claims does not, on the evidence before the court, establish that the Tribunal fell into jurisdictional error.

10. Further, there is nothing to support the Applicant's claim that the statutory test in relation to the criterion in s.36(2)(aa) of the Act was not correctly applied by the Tribunal.

11. The difficulty for the Applicant is that the Tribunal found that he was not a witness of truth and had fabricated his material claims.  On that basis, the Tribunal was not satisfied there was a real chance he would suffer serious harm for any of the reasons claimed if he returned to Bangladesh now or in the reasonably foreseeable future.  The Tribunal addressed the ground of actual and imputed political opinion which the Applicant raised and also found that there was no real chance the Applicant would suffer persecution for any other Refugees Convention reason. 

12. Insofar as this ground may be seen as taking issue with the Tribunal's approach to the complementary protection criterion, as the Minister's submissions recognise, it is the case that the Tribunal's consideration of the complementary protection criterion was brief.  However it is also apparent that the Tribunal was properly cognisant of the test for the complementary protection criterion and the definition of “significant harm”.  It set out the essence of the test in its reasons.  It made findings in relation to whether the Applicant would be arbitrarily deprived of life, whether the death penalty would be carried out, or whether he would be subjected to cruel or inhuman treatment or punishment or subjected to degrading treatment or punishment.

13. If the Applicant's concern is that the Tribunal did not discuss his claims in the context of considering the complementary protection criterion, the Tribunal referred to the fact that it had made earlier findings and found, in view of those findings, that it was not satisfied there was a real risk the Applicant would suffer significant harm for any of the reasons claimed if he returned to Bangladesh now or in the reasonably foreseeable future.

14. Having regard to the nature of the Applicant's claims and the Tribunal's findings in that respect, this is a case in which it was open to the Tribunal to proceed in that manner.  As considered by Robertson J in SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774, in particular at [56] and [57], there is no jurisdictional error in the Tribunal referring to its previous findings of fact. The Applicant’s claim under the complementary protection provisions, as articulated, could not survive the Tribunal's findings of fact, in particular its rejection of the material claims as fabricated. There was no remaining factual basis to be considered for the purpose of the complementary protection criterion. In these circumstances, the Tribunal sufficiently addressed the complementary protection criterion by reference to the language of the Act and to its earlier findings of fact which led to the conclusion that it did not accept the Applicant's claims.

15. The First Respondent also referred to the decision of Marshall J in MZYXS v Minister for Immigration and Citizenship [2013] FCA 614, in particular at [31]. Similarly, in this case, the Tribunal properly expressed its conclusion in the context of considering complementary protection by reference to the real risk test. It was entitled in the circumstances of this case to rely on its earlier finding that there was no real chance of the relevant harm alleged for a Convention reason in assessing whether there was a real risk of significant harm for complementary protection purposes where the same essential claims and facts were being relied on in relation to each aspect of the Applicant's case. In these circumstances, ground 2 is not made out.

16. As no jurisdictional error has been established on any of the bases contended for by the Applicant, the application must be dismissed.  As the Applicant has been unsuccessful it is appropriate that he meet the legal costs of the First Respondent in the amount sought.

I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Judge Barnes

Date: 6 September 2018