BYD16 v Minister for Immigration
[2017] FCCA 222
•1 February 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BYD16 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 222 |
| Catchwords: MIGRATION – Administrative review – Protection Visa refused – application dismissed – applicant pay respondent’s costs. |
| Legislation: Migration Act 1958 (Cth) |
| Applicant: | BYD16 |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | BRG 670 of 2016 |
| Judgment of: | Judge Vasta |
| Hearing date: | 1 February 2017 |
| Date of Last Submission: | 1 February 2017 |
| Delivered at: | Brisbane |
| Delivered on: | 1 February 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr J.D. Byrnes |
| Solicitors for the Applicant: | O'REILLY LILLICRAP |
| Counsel for the 1st Respondent: | Mr B. McGlade |
| Solicitors for the Respondent: | SPARKE HELMORE |
ORDERS
The application filed on 22 July 2016 as amended on 23 November 2016 be dismissed.
The Applicant pay First respondent costs of and incidental to the proceedings fixed in sum of $7,206.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 670 of 2016
| BYD16 |
Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex tempore)
By application filed on 22 July 2016 and then by amended application filed on 23 November 2016, the Applicant, BYD16, seeks this Court to judicially review a decision of the Administrative Appeals Tribunal (“the Tribunal”) which in itself affirmed a decision of the delegate of the Minister not to grant BYD16 a protection visa. The Tribunal had before them the Applicant himself, who had with him a migration agent and an interpreter.
The background to the matter is that the Applicant was an “unlawful maritime arrival” from Bangladesh to this country in May 2013. In August 2013, he applied for a protection visa. On 28 April 2015, the delegate refused to grant the visa. The Applicant then applied to the Administrative Appeals Tribunal for a review of that decision and on 24 June 2016, the Tribunal made its decision to which I have previously referred.
The Applicant claims these things, in short compass. He lived in a village in Bangladesh where he and his father had been supporters of the political party JEI, which has an Islamic base. The father is a devout Muslim and is said to have embraced the ideals of this political party. The ruling party in Bangladesh was the Awami League. The Applicant claimed that there is bad blood between members of these opposing political parties.
There was another family in the village, where a brother and sister, Mr R and Ms S, also lived. There had been some form of animosity between the families, but it seems, on the evidence, nothing of any drastic nature had ever occurred.
That changed in December of 2012, according to the Applicant. He said that in the couple of weeks beforehand, he had begun a relationship of a kind with Ms S, where they had met and talked and, it seems, may have gone even on some dates.
On the date in question in December 2012, they were at it would seem now a soccer match rather than a cricket match, where the Applicant was seen to be talking to Ms S by her brother, Mr R. This apparently upset Mr R to no end and Mr R set about with his friends, who were all members of the Awami League, to attack the Applicant.
The Applicant talks of an attempted abduction straight after the football match. But he was able to escape with the crowd. But then for some reason, he decided to walk home to his village, which is two villages away, which was about a one and three-quarter hour walk.
On the way to a village, he was grabbed by the same supporters of the Awami League, taken to a house, and severely beaten. He says that whilst they were on the phone to some political person, he was able to escape through an open window, but these people soon caught up to him. And, even though this is somewhat inconsistent, he was beaten by these people in the street with sticks, hockey sticks and other implements, for about 10 minutes, till people shooed them away, and he was then taken by these people back to his house.
The Tribunal had a lot of problems with this factual scenario. And there is no real surprise as to that. One would have to ask why, if an attempted kidnapping just happened and knowing people are still out for him, the Applicant would still then decide to walk home; how was it that he was set upon; the description that he was beaten in this way for eight to 10 minutes would, one would think, have caused death or grievous bodily harm, but he was simply left with some bruises. And he was taken home; not to a hospital but to his home, and then later taken to a clinic.
It is then that the Applicant says that, to use the vernacular, all hell broke loose. Members of the Awami League came to the house and threatened the father and damaged the house; then they were looking for the Applicant for some time, and he went to his grandfather’s place; these Awami League people came to the grandfather’s place and the Applicant hid in a drain and the grandfather was interrogated as to where the Applicant was; the grandfather was slapped but didn’t give up the location of the Applicant. All this led to the point where the Applicant said that he felt he had to leave the country.
So his application was on two related bases; that is, that he would be targeted by Mr R because of his blossoming relationship with Ms S, but more importantly, because of his father’s connections with JEI, and therefore his own connections as a supporter, he would be targeted.
The Tribunal did not find that the Applicant was a witness of credit. Some of the reasons are implicit in what I have already articulated. The decision of the delegate was affirmed.
The application before me has one ground and it is stated as follows:
“1. That the Second Respondent fell into jurisdictional error because it failed to take into account relevant considerations by not addressing and dealing with the Applicant’s claim or claims and its or their component integers…”
In short compass, the argument is that the Applicant made an original claim that the JEI links of his father and of himself put him into a situation where he had a well-founded fear of persecution from the Awami League. In the hearing, he mentioned that his uncle was president of the JEI in another village, called Benapole, and his grandfather had been involved in the JEI in much the same way his father had.
The argument is that whilst the Tribunal looked at the original claims, because the Applicant had expanded his claims to include his uncle and his grandfather, these further claims were not specifically dealt with by the Tribunal. It is trite to say that a Tribunal in exercising its jurisdiction must consider all claims made by an Applicant.
Therefore, if this was a true claim that was made by the Applicant and it was not considered by the Tribunal, then the Tribunal has not done what they are mandatorily obliged to do. The Tribunal must consider the whole of the claim. So it’s a very small, neat point; however, it is still a complex one.
The first matter that has to be looked at is whether or not this was an actual claim that was made, or as the authorities say, was it a substantial, clearly articulated argument relying upon established facts? It has been pointed out how it was that the Applicant came to talk about the uncle and the grandfather during the hearing.
Such was summarised by the Tribunal in its reasons, when, at paragraph 44, it said:
“44.The applicant told the Tribunal he was a supporter of JEI. He explained that meant he would attend JEI meeting with his father if the meeting was hosted at his father’s hotel. The Tribunal put to the applicant information from DFAT regarding the prevalence of political violence in Bangladesh, but that low level supporters of any political party did not face a real chance of harm. He replied his grandfather, father and uncle were in JEI and his uncle held a high position in the area of his hometown. His family had a long association with JEI.”
Eventually, the Tribunal ended up finding the following at paragraph 48:
“48. The Tribunal is willing to accept the applicant’s father is a devout Muslim who attended Mosque. However, the Tribunal rejects the applicant was a supporter or member of JEI. It rejects he attended any JEI meetings with his father at his father’s hotel. It rejects his father was a supporter or member of JEI. The Tribunal rejected above that AL supporters attacked the hotel of the applicant’s father and rejected they attacked the applicant’s father. The tribunal finds neither the Applicant nor his father had any connection to JEI. It follows that the Tribunal rejects there was any animosity between the applicant’s family and the family of Ms S due to political reasons or for any other reason. It further rejects the applicant’s father or uncle have been named in any court case nor that his father is in hiding or his mother, and siblings have relocated. The Tribunal considers the applicant has fabricated these claims in their entirety.
49. The Tribunal has found above the applicant’s claims of past harm are not credible. The tribunal has rejected the applicant and/or his father having any connection to JEI, including arising from the applicant’s father being a devout Muslim who frequently attended mosque…”
So the point is does the raising of the father and the grandfather and uncle, as articulated in paragraph 44, constitute a substantial, clearly articulated, argument based on established facts?
In my view, this is not made out.
But I do consider that there is a chance that I may be incorrect about that. So I am going to then look at the question of having thought that such may have been established, and therefore it was mandatory that the Tribunal consider it.
What is clear, when one reads the way in which this matter had arisen, is that the Applicant had, at all times, really looked at the connection between himself and his father, and his father’s connections with JEI.
There had never been in any of the material given to the Tribunal any suggestion of the connection of his grandfather or uncle. Such is obvious when the Tribunal member tries to summarise the claim and talks about the danger given by the Applicant’s connections with JEI and his father’s connections with JEI and then mentions that he had already spoken about the uncle and the grandfather.
When the tribunal member came to give his reasons, he made copious references to “family”. At paragraph 1:
“The Applicant is a 24 year old man from Bangladesh. According to the Applicant, supporters of the Awami League harmed him and his family in the past for reasons of his family support of JEI.”
At paragraph 21 -
“In summary, the Applicant has two interrelated claims. The first is a dispute between him and Mr R due to the Applicant’s relationship with Mr R’s sister, Ms S. The second is the Applicant and his family are supporters of JEI and later in that paragraph, Mr R was able to use his influence to persuade AL supporters to harm the applicant and his family.”
It therefore seems to me that the Tribunal has, when one looks at their whole list of reasons, considered all the family’s role, though, of course, the evidence of the actual activities in JEI solely related to the Applicant and the father.
There was no other evidence apart from the bald assertion that the uncle was a president and was named in a list of a court case and the grandfather had been a member. Apart from that, there was no other evidence of what they were actually doing in JEI.
It seems to me, then, that the use by the Tribunal of the term “family” in relation to the Applicant’s family is a proper description of all the persons that were named by the Applicant as being in his family who were supporters of JEI.
It was submitted that, because of the findings that the Tribunal had made, there is still one aspect that the Tribunal did not specifically consider. That is that notwithstanding that the Tribunal found that the Applicant was not involved in JEI or the father was involved in JEI, that the grandfather and the uncle may, because of their connections to JEI, still pose a risk for the Applicant if he were returned to Bangladesh, notwithstanding that he has nothing to do JEI.
Of course, such a hypothesis was never raised by anyone during the hearing, but notwithstanding that, it was submitted that such was a hypothesis that should have been answered and should have been looked at.
In my view, this is a very peripheral argument that really has very little weight. When the Tribunal has said at paragraph 52 that “it has assessed all of the evidence”, such a statement is capable of showing that the tribunal did look at all the evidence. The Tribunal was not required to specifically enumerate all the hypotheses that could have arisen on the findings that it had made, if it did not find that such a hypothesis was a matter that it needed to address.
Simply because the Tribunal did not mention that it had considered that hypothesis and rejected it, does not mean that it had not actually considered it.
As has been pointed out, even though a Tribunal says that they have assessed all the evidence, it does not mean that it has. It is for me to look at everything and to decide whether the Tribunal had actually assessed all that evidence. I am of the view that the Tribunal had done so.
I do not find that there was a jurisdictional error. Therefore, I dismiss the application and order costs in the sum of $7206.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Vasta
Date: 16 February 2017
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