Bzair v Minister for Immigration

[2015] FCCA 2096

FEDERAL CIRCUIT COURT OF AUSTRALIA

BZAIR v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2096

Catchwords:

MIGRATION – Review of Refugee Review Tribunal decision – no error of law – application dismissed – costs.

Legislation:

Migration Act 1958 (Cth)

Applicant: BZAIR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 13 of 2015

Judgment of: Judge Vasta

Hearing date: 29 July 2015

Date of Last Submission: 29 July 2015

Delivered at: Brisbane

Delivered on: 29 July 2015

REPRESENTATION

The Applicant appearing on his own behalf

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. That the Application filed 13 January 2015 be dismissed.

2. That the Applicant pay the Respondent’s costs fixed in the amount of $5,800.

3. That the name of the Second Respondent be amended to “Administrative Appeals Tribunal”.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 13 of 2015

BZAIR

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

1. By application of 13 January 2015, the Applicant, BZAIR, seeks judicial review of a decision of the Refugee Review Tribunal (“RRT”) (now known as the Administrative Appeals Tribunal) that was given on 15 December 2014.  

2. The Applicant is a citizen of Bangladesh.  He came to this country as an unauthorised maritime arrival in 2012.  He applied to the Department of Immigration for a protection visa on 12 November 2012.  The delegate of the Minister refused to grant the visa on 16 July 2013.  On 22 July 2013, the Applicant applied to the RRT for a review of this decision.  The Applicant had a hearing before the Tribunal in November of 2014 and the decision was given on 15 December of 2014.

3. In short compass, the Applicant was born in Bangladesh in 1985.  He lived in a village in the Comilla district and then moved to Chittagong.  He stayed in Chittagong for a number of years until December 2009 when he travelled to Malaysia.  He lived in Penang, Malaysia, up until June 2012, when he travelled to Australia by boat via Indonesia.

4. He has told the Department that he received nine years of formal education which ended in December 2001.  He said that he was a political activist between leaving school and December 2004 and he was a garment factory worker from 2004 to December 2009. He also advised he worked as an electric cable installer in Malaysia until he left.  He still has brothers and a half-sister living in Bangladesh and another brother living in Malaysia.

5. The gravamen of his claim is that he has supported the Bangladesh Nationalist Party (“BNP”).  He and his brother campaigned for the party; they attended meetings; they canvassed for votes.  The Awami League, the opposition party to the BNP, was voted into power in 2008.  

6. Without descending into detail, the Applicant says, that in 2004, his brother became involved with another girl from the same village (though the village may not be correct).  The family of that girl were supporters of the Awami League, whereas his family were still BNP supporters.  For this reason, that family did not like the romance that was happening between the brother and the girl.  The girl, on the information before me, committed suicide.  There was blaming of the family of the Applicant for this and the family of the Applicant was targeted by the family of the girl.

7. The Applicant says that the girl’s death was merely a ruse or a device by which the family of the girl and other supporters of the Awami League could now harass him.  Because of this danger, in 2004, the Applicant and his brother, (though not the one involved with the girl), went to Chittagong.  They stayed in Chittagong until 2008, when the Applicant, apparently, returned to his village and campaigned in a public way for the BNP.  It should be added at this time that the BNP were in power.

8. The BNP lost that election and the Applicant said his brother (not the one involved with the girl) was set upon by the family of this girl, though the real reason for this was persecution because of the connection with the BNP.  As a result of this the Applicant and the brother who had been attacked fled back to Chittagong.  In Chittagong, he was told that the Awami League were after him, and therefore he fled to Malaysia and then to this country.

9. The Tribunal looked very carefully and very thoroughly into these claims.  There were a lot of internal inconsistencies in what it was that the Applicant said.  These claims were put to the Tribunal by a migration agent for the Applicant.  The Applicant reiterated at the hearing that he believed his country was dangerous to him and his brother and that everything he had stated was true.

10. After the Tribunal had concluded, but before it had reached its decision, the Tribunal received a submission from the Applicant citing further country information on Bangladesh, as well as further submissions as to the assessment of credibility of the Applicant at the hearing.  So, not only did the Tribunal have at its disposal what the Applicant had said in his first application for the visa and what he had said to the delegate for the Minister, but also his verbal evidence before the Tribunal, as well as further submissions after the Tribunal hearing and even more country information as to the dangers of Bangladesh.  Therefore, it would seem to me that the RRT had all the relevant information and has considered all that information.  It had not rushed to judgment, but instead had carefully considered all the matters.

11. One of the main points identified by the Tribunal was that it found that it was difficult to understand how the brother (who was involved with the girl) could continue to live in the family home in the village if members of his former girlfriend’s family generally held a grudge against him for bringing about her death. 

12. At paragraph 23, the Tribunal said:

    “…His claim is that when (the brother) began a relationship with her in 2004 the family refused to accept it leading her to commit suicide.  Their resulting enmity was so great that (the brother), together with the Applicant and (the older brother), were forced to flee to Chittagong where they took up work in a garment factory. The village remained a dangerous place for them and when the Applicant returned in 2006 he was able to remain for only a week before he was forced to go back to Chittagong.  He claims the three brothers, nevertheless, returned again in 2008, at the time of the national election.  Soon after the Awami League victory the girl’s family beat (the older brother, i.e.; not the brother that had been in the relationship with the girl), and he and the Applicant left once more, (the older brother), fleeing to Malaysia and the Applicant back to Chittagong.  By contrast, however, (the brother who had had the relationship) is said to have remained in the village where, unharmed, he still lives six years later.”

13. The Tribunal could not accept the explanation for this obvious anomaly.  They could not accept that the Applicant would be in danger and would have to flee but the brother would not and would be able to remain safely in the village. 

14. The Tribunal said it was incongruous that every other member of the family could stay in the village unharmed even though the family was known to espouse the beliefs of the BNP.  The Tribunal could not accept that the brother who had been in the relationship could live in that village unharmed if what the applicant said was actually true. 

15. There were other inconsistencies in the story of the applicant.  At paragraph 27 the Tribunal said that:

    “Taking these considerations together I am not satisfied it is plausible that the Applicant’s brother could remain in his village from 2008 to the present, a period during which the Awami League has been in office in Bangladesh, without suffering harm of any kind if he had been held responsible for the death of his girl-friend by her powerful Awami League- aligned family.  Nor am I satisfied it is plausible that he would choose to return to the village if such a risk of harm existed.  I find that this casts significant doubt over the truth of the Applicant’s claims to fear harm in Bangladesh, given the centrally important place the alleged threat from the girl’s family occupies in his account of his experiences”. 

16. The Tribunal was also not satisfied that the Applicant would be targeted for harm by the Awami League, the authorities or anyone else because of the past manifestation of his political opinion.  Nor was the Tribunal satisfied that on return to Bangladesh he would take up an active involvement in the affairs of the party or that his failure to do so would be because of fear of the consequences.  Therefore the Tribunal wasn’t satisfied that there was a real chance that he would suffer serious harm if he were to return.  Therefore both the Convention criterion and the complementary protection criterion were not satisfied. 

17. In this application before me the Applicant has listed three grounds of review.  Firstly, the Tribunal “made an error in saying that I am not satisfied that the Applicant was a member or activist when he lived in Bangladesh.”  This is a finding of fact made by the Tribunal and it is not permissible for me to go behind the finding of fact.  The Tribunal did have a deal of evidence before it and the benefit of submissions from a migration agent and a great deal of country information.  In making its decision I cannot see that the Tribunal has entered into any form of error.  I consider that this ground is not made out. 

18. The second ground is that the Tribunal “made an error in not considering the current situation in Bangladesh”.  As previously mentioned the Tribunal received additional material from the Applicant after the hearing which gave even more country information as to the current plight of persons in Bangladesh.  It cannot be said that the Tribunal has not considered the situation in Bangladesh when, in its reasons, it explicitly stated that it had.  So therefore I find that there is no substance in this ground. 

19. The third ground is that the Tribunal “failed to consider the totality of this case.”  The reason I went through so thoroughly what the Tribunal had done was to illustrate that the Tribunal had, in fact, considered the totality of the case.  It had come to a decision after careful consideration of all of the evidence.  I am satisfied that there is no jurisdictional error.  I am satisfied that this was a matter where it cannot be said that no reasonable decision maker could ever have come to the conclusion that the Tribunal did.  Therefore I cannot find any jurisdictional error. 

20. The Applicant’s grounds are really grounds for merit review and an attempt to engender sympathy.  That is not the role of this Court as it can only decide matters according to law.  I therefore dismiss the application. 

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date:  5 August 2015