CBK16 v Minister for Immigration

[2017] FCCA 2355

FEDERAL CIRCUIT COURT OF AUSTRALIA

CBK16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2355

Catchwords:
MIGRATION – Application for protection visa – review of decision of Administrative Appeals Tribunal – whether the Tribunal failed to act fairly and reasonably – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.36, pt.7

Cases cited:

AMA15 v Minister for Immigration & Border Protection (2015) 244 FCR 131; [2015] FCA 1424

Applicant: CBK16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2032 of 2016

Judgment of: Judge Smith

Hearing date: 21 September 2017

Date of Last Submission: 21 September 2017

Delivered at: Sydney

Delivered on: 13 October 2017

REPRESENTATION

The applicant appeared in person.

Counsel for the Respondents: Mr G Johnson

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2032 of 2016

CBK16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of Bangladesh who arrived in Australia on a visitor’s visa on 6 December 1997. He first applied for a protection visa on 5 January 1998. That application was refused by a delegate of the Minister, with the decision being affirmed by the Refugee Review Tribunal[1] (RRT). The applicant unsuccessfully sought judicial review through the Courts and subsequently made further applications and requests for Ministerial intervention with the RRT and Minister respectively. He also, on two separate occasions, applied for a partner visa, the first of which was refused by a decision made by a delegate of the Minister and the second, which was found to be invalid.

   [1] As it was then known. On 1 July 2015 it became the Administrative Appeals Tribunal: Tribunals Amalgamation Act 2015 (Cth).

2. On 23 October 2013, the applicant made an application for a protection visa. That application was refused by a decision made by a delegate of the Minister on 26 August 2014. The applicant appealed to the Administrative Appeals Tribunal (Tribunal) for review of that decision and attended and gave evidence at a hearing on 17 May 2016. On 24 June 2016, the Tribunal affirmed the decision of the delegate not to grant the applicant a protection visa. It is this decision which is under judicial review of this Court.

Background

1. The applicant claimed to have been an active member of the Bangladesh Nationalist Party (BNP) prior to leaving for Australia. He said that shortly after the Awami League (AL) came to power in June 1996, he along with other BNP members, were targeted by AL members. The applicant claimed that a parliamentarian and AL activist named ‘Salim’ had threatened to kidnap and kill him and had forced him to go into hiding for 6 months with his sister prior to leaving for Australia.  

2. The applicant also claimed that he was the victim of numerous fraudulent criminal cases instigated by AL activists and provided a charge sheet, order sheet and arrest warrant. He said that he had been given these documents from his brother-in-law who had obtained them from the party office. The applicant denied manufacturing any false documents after it was put to him by the Tribunal that the Australian Federal Police (AFP) had assessed them as being not genuine.

3. The applicant claimed that he still has a connection and keeps in contact with the BNP and occasionally attends BNP party meetings in Sydney. The applicant read from a newspaper article which was about a BNP meeting at a Bangladeshi restaurant in Rockdale on 25 April 2016. He explained that his attendance was not recorded and that he did not appear in the photo because he was just a supporter and not an official or leader.

4. The applicant stated in his interview with the delegate, that his claims for protection were the same as his first application in January 1998, except for the additional claim that the security environment had since deteriorated in Bangladesh. In addition to the documents regarding the fraudulent criminal cases, the applicant submitted to the Tribunal two translated media articles which were about political violence in Bangladesh.

Tribunal’s decision

1. The Tribunal found the applicant not to be a credible witness who gave evidence which was “vague, evasive and overly generalised”. The Tribunal also noted that the applicant had to be prompted to address some serious claims in his application.

2. The Tribunal found that there were a number of problems with the applicant’s evidence, including his evidence about the following:

   (i)when he was a student member of the BNP and his level of involvement and position whilst in Bangladesh;

   (ii)the claims that he had been attacked, threatened and forced to go into hiding and the people responsible for those actions;

   (iii)the fact that he was able to leave Bangladesh, obtain a passport and renew it without any adverse attention from Bangladeshi authorities in spite of his claim that he was the subject of fraudulent criminal cases;

   (iv)his involvement with any BNP groups in Sydney and his current level of support for the party.

3. The Tribunal did accept that the applicant was a supporter of the BNP and may have been involved in work on their behalf in the two years prior to leaving for Australia in 1997. However, the Tribunal did not accept that he was a student and active member of the BNP during this time. The Tribunal also did not accept that between 1993 and 1995 the applicant held any senior position with the BNP.

4. The Tribunal did not accept that the applicant was the victim of fraudulent criminal cases made against him by AL activists. It also did not accept that the applicant had been assaulted and forced to go into hiding prior to leaving for Australia, or that a prominent AL member named ‘Salim’ along with other AL activists, had threatened to kidnap and kill him.

5. The Tribunal accepted that the applicant may hold political views which are consistent with those of the BNP. However, it did not accept that he was a member of the BNP in Australia or partake in any public role with the Australian branch. The Tribunal accepted that the applicant may have attended one or two local branch meetings a year, but that this interest was minimal.  

6. On the basis of the same factual conclusions and citing country information, the Tribunal came to the conclusion that the applicant was not at real risk of being killed, or suffering significant harm, as a necessary and foreseeable consequence of him being removed from Australia to Bangladesh.

7. For those reasons, the Tribunal was not satisfied that the applicant met the criteria for the grant of a protection visa under sub-s.36(2)(aa) of the Migration Act 1958 (Cth) (Act) and affirmed the decision of the delegate. The Tribunal did not consider the applicant’s claims under sub-s.36(2)(a) of the Act as it does not have jurisdiction where the applicant has already previously been assessed under the refugee criterion. It was correct to take this approach: see AMA15 v Minister for Immigration & Border Protection (2015) 244 FCR 131; [2015] FCA 1424.

Consideration

Ground one - The Tribunal did not assess my case in a fair and reasonable way

1. When asked at the hearing to explain what he meant by this ground, the applicant said that the Tribunal did not act in a fair and reasonable way because it did not believe his claims. Such a contention is an attack on the merits of the Tribunal’s decision as opposed to an allegation of jurisdictional error. This Court’s jurisdiction is limited to determining whether the Tribunal has fallen into jurisdictional error. It cannot interfere with the Tribunal’s consideration of the evidence, so long as it is reasonably open on that evidence.

2. In my view, the Tribunal made assessments of the applicant’s claims and evidence, and findings of fact which were open to it. For example, the Tribunal did not accept that the applicant was the subject of numerous fraudulent criminal cases as:

   (i)the documents provided by the applicant were assessed as not genuine by the AFP;

   (ii)country information indicated that corruption was widespread in Bangladesh and that it was relatively easy to obtain false documents;

   (iii)the applicant was able to obtain a passport and renew it without any adverse interest from Bangladeshi authorities; and

   (iv)the applicant had to be prompted to address this serious claim at the Tribunal hearing.

3. These reasons form a logical basis for the Tribunal coming to the conclusion, that it did not accept that the AL started any fraudulent criminal cases against the applicant prior to leaving Bangladesh.

4. The first ground is rejected.

Ground two - I do not understand the visa process and did not know what I needed to include in the visa application.

1. There are two difficulties with this ground. First, at a factual level, it is both unsupported by any direct evidence and inconsistent with the material before the Court. As I have observed, the applicant had a good deal of experience with the visa system in Australia, having made a number of applications for visas and for review of decisions of delegates and judicial review of Tribunal decisions. Further, he informed the Tribunal that he had not included certain information in his application because he was forgetful: see [48] of the Tribunal’s reasons. The applicant did not tell the Tribunal that he was ignorant of the visa process. I do not accept the factual premise of the ground.

2. The second difficulty is that, even if the factual premise were correct, it would not establish jurisdictional error. Regardless of whether the applicant understood the process he engaged in by lodging an application for a protection visa, the only question for the Court is whether the Tribunal completed its statutory task according to law. The applicant does not, and could not, assert that he was not given an opportunity to give evidence and present arguments about the issues that arose in respect of the delegate’s decision. He was given the opportunity to address adverse information in accordance with the requirements of pt.7 of the Act. This ground does not assert any substantive legal error made by the Tribunal. The only real contention raised by the ground, is that the whole process was somehow unfair because the applicant did not understand something about it. That contention does not reveal any failure by the Tribunal to complete its task.

3. For those reasons the second ground is rejected.

Ground three - It is not fair to criticise me for not including every detail of my case in the visa application.

1. This ground appears to be an adjunct to the second ground and suffers from the same problems. There are, in any event, further difficulties with it.

2. The Tribunal, in its review of the delegate’s decision, did not refer to any failure by the applicant to include information in his visa application. The ground appears to be referring to the concerns the Tribunal raised at the hearing with the applicant regarding his need to be prompted to mention serious claims which had been included in his visa application.

3. The Tribunal acknowledged the difficulty the applicant would have in recalling events which are said to have occurred 18 years ago. The Tribunal said at [54] of its reasons that it:

   … would not expect the applicant to have a detailed recall of events which took place before 1998 however; he was not able to identify the basis for his claimed fears in any coherent or logical fashion. When asked about the reasons he feared returning he did not mention significant claims such as being assaulted shortly before he left Bangladesh and being charged with a number of false criminal charges until he was prompted by the Tribunal.

4. When questioned by the Tribunal regarding why he had not mentioned the claim of being subject to fraudulent criminal cases, the applicant stated that he was “forgetful and not really prepared for the hearing”. The Tribunal at [61] of its reasons stated that considering the seriousness of the charges, it expected the applicant to mention the claim at the hearing without needing to be prompted.

5. This was not the only basis for why the Tribunal found the applicant not to be a credible witness. The Tribunal at [53] of its reasons stated that the applicant’s evidence was “vague, evasive and overly generalised” and that he was unable to “provide relevant detail about any of the events he claimed had taken place in Bangladesh before he departed.”

6. It was open to the Tribunal when determining the credibility of the applicant, to consider his failure to mention serious claims at the hearing as a component to its finding. As noted in [25] above, this was not the sole reason for why the Tribunal found the applicant not to be a credible witness. The Tribunal based its finding on a collection of logical grounds and inferences that arose reasonably upon the evidence before it.

7. The third ground is rejected.

Conclusion

1. There is no jurisdictional error in the Tribunal’s decision. The application is dismissed.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Smith

Date:     13 October 2017