CIZ16 v Minister for Immigration

[2017] FCCA 354

FEDERAL CIRCUIT COURT OF AUSTRALIA

CIZ16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 354

Catchwords:
MIGRATION – Protection Visa – whether tribunal’s decision affected by jurisdictional error – where no error established in tribunal’s decision – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Applicant: CIZ16

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 767 of 2016

Judgment of: Judge Vasta

Hearing date: 24 February 2017

Date of Last Submission: 24 February 2017

Delivered at: Brisbane

Delivered on: 24 February 2017

REPRESENTATION

Counsel for the Applicant: Dr McConaghy

Solicitors for the Applicant: Hopgood Ganim Lawyers

Counsel for the Respondent: Ms Slack

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. The Application filed on 24 August 2016 as amended on 28 November 2016 be dismissed.

2. The Applicant pay the First Respondent's costs of and incidental to the application fixed in the sum of $7206.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 767 of 2016

CIZ16

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore)

1. By application filed on 24 August 2016 and amended by further application filed on 28 November 2016, the Applicant, CIZ16, seeks judicial review of a decision of the Administrative Appeals Tribunal that itself affirmed a decision of the delegate of the Minister for Immigration and Border Protection not to grant the Applicant a protection visa.

2. In short compass, the facts of the matter seem to be that the Applicant is a citizen of Bangladesh.  In about December 2012, he left Bangladesh and arrived in Australia, as a maritime arrival, in March 2013. He made his application in June of that year. 

3. What he said at that time was that he fled Bangladesh as he feared for his life if he remained in the country.  “As a member of the BNP party my life was in danger at the hands of the chairman and the secretary of the local Awami League political party.” 

4. He claimed that chairman would sit in the police station and look after the affairs of the village and that chairman wanted to blackmail him and force him to pay money.  When he refused the representatives approached him and laid a case against him with the local police to harm and ruin his life.  This occurred four months before he fled the country.

5. He said at the time that he was running his father’s shop in the village and that he was asked to hand over money to the AL people and, when he refused, they threatened him and said that he had 15 days to pay that money.  He was told that, if he went to the police station, he would be shot.  Out of fear for his life, he didn’t return to his shop but went to Dhaka and then to Chittagong and got on a boat and came to Australia.

6. He told the authorities that, after he left Bangladesh, in February 2013, his father returned to the shop and seven men came to the shop wanting to know where the Applicant was and the father replied that he didn’t know.  He claimed that these men told the father that the Applicant had borrowed money from them and they wanted it back which the Applicant says was not true.

7. These people then started taking stock from the shop; his father tried to prevent them but, because there were seven, he was outnumbered and he said that his father was stabbed and that the father would not go to the police station otherwise he would be killed.  The shop was then destroyed and the father fled the home and never returned.

8. He said also that in 2010, so at least two years before he fled, that a person from the Awami League made a case against the Applicant and 15 other people accusing them of stealing a rice husking machine and that that matter was still in Court.  As I will get to later, the Applicant also claimed that two of those 15 other people were his father and brother.

9. He maintained, in that initial interview, that he would be harmed by the Awami League and it was the Awami League who were after him.  The Applicant claimed that the authorities would not be able to protect him from the Awami League, because they are the political party in power.

10. The Applicant said this:

    “I support the BNP and in my village I’ve recruited a lot of support amongst the villagers for the BNP.  Amongst my one people I was regarded as a leader and a mediator for many issues in my village.  On many occasions I presented cases of people in my village to the village chairman and tried to support them to get a resolution.  My village people  have come to me for advice and now that I have left I fear that the opposition will intimidate these people and that the BNP will lose their support in the village.  I am well known and will not be able to hide.” 

11. The Awami League, in effect, would find him.

12. The delegate refused the application and then the matter went to the Administrative Appeals Tribunal.  The case given to the Tribunal by the Applicant’s representative was that, in summary, the Applicant has a well-founded fear of persecution should he be returned to Bangladesh as he was threatened and attacked by members of the local Awami League.  As the Awami League is the government in Bangladesh he fears he will have no defence against them and that the Applicant fears being beaten or even killed.

13. Those were his fears.  During the hearing before the Tribunal the Applicant again went through his history.  He told the Tribunal that he had worked with his father in the family’s fabric shop in the home village until he left Bangladesh.  He had been an active worker for the BNP since he became a member in 2005.  He was asked whether he was a member or supporter of the party and he replied that he had close relations with different issues and that they, that is the BNP, give you jobs and if you do that they give you a position like secretary.

14. He said he didn’t have a membership card for the party because, at the level he reached, no one had a card. The Tribunal asked what work people at his level did for the BNP.  He replied that, “They used to call  us to meetings and build support.”  The Tribunal asked him to state exactly what his role with the BNP was and he replied he was general secretary of the party at ward level only and would raise support for the BNP among the local people.

15. He then again talked about the rice milling machine case, now telling the Tribunal, as well, that his brother and father had attended the Court on return dates and that nothing had happened to them.  The Tribunal asked how they were summoned by the Court.  He said that there was no summons issued.  The lawyers just let them know when they had to appear at court.  The case was first brought in about July or August 2012 and he attended Court two or three times with his father and brother before he left Bangladesh.  He said that there were about 14 people accused in relation to the rice milling machine including him, his father and his brother.

16. When the Tribunal put to him that he had told the Department originally that this happened in 2010, he said that he may have made a mistake when talking to the Department but his family could give him the correct date. 

17. The Tribunal asked the Applicant why he could not go to Dhaka to work as his brother had done and he said that his brother had not been involved in politics, therefore, it was safe for the brother in Dhaka. 

18. The Tribunal asked why his brother was also charged in the court case and the Applicant responded the family were included in the court charges because the people who brought the charges wanted to take the family business and demanded a great deal of money from his family if they wanted to keep their business.  It was when they wouldn’t pay this that the shop was destroyed.

19. He did say that this destruction occurred after he left Bangladesh and that the family had not had any further problems since that event.  He told the Tribunal that, while his brother is safe in Dhaka, his situation is different because the brother was not involved with the BNP. 

20. He said that the only reason his brother is living in Dhaka is the false case that was brought against him in the village and the Applicant said that he himself, the Applicant, would not be safe in Dhaka because people from his village would see him and he would be harassed very badly by the police and other authorities in Dhaka. 

21. He told the Tribunal that his father and brother are living without problems but their situation is different because they’ve never been political.

22. The Tribunal pointed out to the Applicant he had told the Department that all of his family were active with the BNP but the Applicant explained to the Tribunal then that they were BNP supporters but not at the same level as he and added that they love and support the BNP because he does.  The Tribunal asked whether his father had supported the BNP before him and the Applicant said that he had.

23. So in making those claims, it seem to be quite clear that the Applicant was explaining what was happening to him in Bangladesh and why he had a well-founded fear of persecution if he were to return.  The sole reason is because of his involvement with the Bangladesh Nationalist Party.  So  it was then incumbent upon the Tribunal to assess those claims.

24. Now, the Tribunal relied upon a great deal of country information which the Tribunal set out and attached to their reasons.  The Tribunal accepted political activists and members of the BNP had been victims of political violence in Bangladesh in recent years and that those problems continued to plague the country. The Tribunal also accepted that politically active individuals and wealthy business owners, such as the family of the Applicant, have been targeted for extortion in some circumstances.

25. So the Tribunal had that information, considered everything, but, when it came to looking at the Applicant’s claims about his activity in politics, the Tribunal said this at paragraph 30:

    “The applicant claims to have been active in politics in Bangladesh with the BNP, however, his evidence about his political involvement was vague, contradictory and unconvincing.  In his original written statement he claimed to have been a member of the BNP while in his evidence to the Tribunal he said at different times that he had been a member since 2005, that he was active in the party but not a member, that he was a low level member and that he was the general secretary of the party at ward level in his district.  He also told the Tribunal at one point that he just attended meetings and activities of the party when asked to by his cousin who was the president of the BNP in the particular district when the BNP were in power.”

26. Therefore, the Tribunal had concerns about the credibility of his claims regarding his involvement in BNP politics.  In the end, the Tribunal came to the conclusion that they were not satisfied that there was a real chance that the Applicant would face persecution should he return to Bangladesh because of his political opinions whether actual or imputed. 

27. Nonetheless, the Applicant’s claims regarding the demand for money made by the Awami League members and the destruction of his father’s shop have been consistently made by the Applicant and are consistent with the available country information. 

28. However, whilst it was accepted that the fabric shop had been destroyed and that the father, brother and the Applicant are involved in the court case brought against them in the village, the Applicant’s own evidence was that neither he nor his family members have suffered any adverse consequences as a result of the court proceedings he claims have been falsely brought against them.

29. Accordingly, the Tribunal said:

    “Given the applicant’s evidence that neither his father nor brother have suffered any problems since the incident which forced the closure of the family shops the Tribunal could see no reason to find that there is a real chance that the applicant would face persecution for any reason should he return to Bangladesh.”

30. The Tribunal then found that the Applicant did not meet the criterion in the Refugees’ Convention and neither did the Applicant meet the criteria in the complementary protection aspect of the Migration Act 1958 (Cth) (“the Act”) and, therefore, the Tribunal affirmed the decision not to grant the protection visa.

31. In the amended originating application, the Applicant sets out three grounds of review.  Firstly:

    “1. That the Tribunal constructively failed to exercise its jurisdiction by applying a wrong test when assessing whether the Applicant had a real chance of persecution should he return to Bangladesh.

    a. The Tribunal applied the real chance test in DZADC v MIAC (No.2) (2012) 131 ALD 463 at [16]which ‘looks to the future’.

    b. The Tribunal stated that whilst past events will often provide a reliable means of predicting future persecution that will not always be the case.

    c. The Tribunal found that because nothing had happened to the applicant’s father and brother since 2013 when the applicant left Bangladesh, then nothing would happen to the applicant in the future.

    d. However, authority for the real chance test at s5J and s 36(2)(a) of the Migration Act 1958 (Cth) is per Brennan CJ, Dawson, Toohey, Gudron, McHugh and Gummow JJ in MIEA v Guo Wei Rong (1997) 191 CLR 559; [1997] HCA 22 (“Guo”) at 574-575. The majority held that in determining whether there is a real chance of persecution, usually evidence of past events of such persecution is the best evidence as to what is likely to occur in the future. Their honours held at 575 that ‘It is therefore ordinarily an integral part of the process of making a determination concerning the change of something occurring in the future that conclusions are formed concerning past events.”

    e. The Tribunal formed a conclusion about past events when it accepted that the applicant’s claims regarding the demand for money made by the Awami League members and the destruction of his father’s shop have been consistently made by the applicant, and are consistent with the available country information.

    f. By applying a test which ‘looks to the future’ the Tribunal failed to apply the authoritative real chance test which accepts the best evidence as to what is likely to occur in the future as evidence of past events of such persecution. Having accepted that the Awami League demanded money from the applicant and destroyed his father’s shop (where the applicant worked), had they applied the authoritative real chance test it was open for the Tribunal to find that evidence of persecution in the past was evidence that such persecution would occur in the future.”

32. In her very helpful submissions the counsel for the applicant, Dr McConaghy, expanded by saying that:

    “Having accepted that the Awami League demanded money from the applicant and destroyed his father’s shop had they applied the authoritative real chance test it was open for the Tribunal to find that evidence of persecution in the past was evidence that such persecution would occur in the future.”

33. In assessing this aspect of the grounds, I am not convinced that the Tribunal did apply the wrong test.  The test which looks to the future is the correct test and the Tribunal was required to consider the risk of future harm in determining whether the Applicant met the convention criteria for the grant of the visa.

34. When one looks at what it was that the Tribunal said in regard to this aspect, the following was said at paragraph 41:

    “Evidence that the applicant had been persecuted in the past can clearly provide a support to the conclusion that the claimed fear is well founded (citation omitted) However, the real chance test looks to the future.  Clearly, while past events will often provide a reliable means of predicting future persecution, that will not always be the case.  In this case, the Tribunal rejects, for the reasons explained above, the applicant’s claims as to the political motivation for the incidents which have affected his family.  Accordingly, given the applicant’s evidence that neither his father nor his brother had suffered any problems since the incident which forced the closure of the family shop, the Tribunal can see no reason to find that there is a real chance that the applicant would face persecution for any reason should he return to Bangladesh.”

35. In my view, this has been a correct application of the test.  What the Tribunal has done is look at what has happened in the past, what it is that they have found as having occurred, why has what they found happened occurred and pondered whether the fear was well founded and what would then happen in the future having regard to what has happened in the past.

36. What the Tribunal has, in effect, done here is to say that there is an acceptance that there has been events that have occurred to the family, namely, the court case and the destruction of the shop.  What the Applicant has said is that his well-founded fear is based on the fact that he has connections to the BNP and that his political opinions, therefore, can be imputed from his membership, and it is because of those political opinions that he is in a totally different category to his father and brother.

37. What the Tribunal did was say that they had discounted his political opinions because they did not accept what it was that he was saying so, therefore, the Applicant would, therefore, be in exactly the same position as his father and brother. 

38. Because his father and brother have gone through those incidents and they, at this point in time, have had nothing adverse happen to them because of that, therefore, the Applicant has not been able to show that anything adverse would occur to him.

39. Such a conclusion is consistent with the authorities and is consistent with the correct test.  Therefore, I do not find that there is any merit in ground 1.

40. Ground 2 was that:

    “2. The Tribunal fell into jurisdictional error by making a purported decision that was manifestly illogical, irrational or unreasonable.

41. With regard to matters of judicial review the words “illogical, irrational or unreasonable” do not bear their ordinary English meaning.  What those words really are meaning is this: has the Tribunal made a decision that is just simply not open to it?  If it has made a decision that is simply not open on the evidence then that decision will be illogical, it will be irrational, it will be unreasonable.  But the point that has to be reached first is, “is the decision open?”

42. The particulars given by Dr McConaghy were this:

    “a. It was illogical, irrational or unreasonable for the respondent to decide that because nothing had happened to his father and brother since the he left Bangladesh in 2013, then nothing would happen to the applicant were he to return to Bangladesh in the future.

    b. Because of illogicality, irrationality or unreasonableness particularised in (a) above, the Tribunal failed to give proper, genuine and realistic consideration to the applicant’s fears for his safety were he to return to Bangladesh.”

43. In my view, having a look at all the evidence that was before the Tribunal, such a finding was certainly open on the evidence and, therefore, if it is open, it cannot be illogical, irrational or unreasonable.  I do not see any merit in ground 2.

44. Ground 3 is that:

    “3. The Tribunal fell into jurisdictional error by misconstruing a statutory provision. 

45. As has been submitted by Ms Slack for the Respondent, the definition of refugee was the definition that was in the convention at the time of the consideration of this matter.  That means that the definition was:

    “A refugee is any person who owing to a well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.”

46. Dr McConaghy submits that when one looks at what the Tribunal did, it did not look at what was the political opinion of the Applicant but, rather, narrowly construed political opinion as to whether the Applicant was a member of a political party and the nature of his political activities. 

1. The way in which a Tribunal has to go about its functions is to assess the claims that are made.  Against the factual matrix of those claims, one then has to impose the legislative requirements. 

2. The claims of this Applicant were that he is in danger if he returns to Bangladesh because of his political activities.  When one puts those facts or those factual claims into the legislative framework it means that the Tribunal has to look at whether that well-founded fear is because of his political opinions whether real or imputed.

3. If the Applicant says, as he did, that he is a member of a party and it is because of his affiliation with the party and what he has been doing with the party that causes that fear, then that is saying that the political opinion, whether real or imputed, is that of a person who conducts himself in the manner that the Applicant has in his activities for the BNP.

4. In finding that the Applicant was not involved as he claims he was, the Tribunal was properly looking at whether the Applicant had the well-founded fear based upon his political opinion.  Therefore, I do not find any merit in ground 3.

5. The result of all of those findings is that I do not consider that there has been any jurisdictional error. 

6. I dismiss the application and order that the Applicant pay the costs of the Respondent fixed in the sum of $7206.

I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date: 28 February 2017