DCD17 v Minister for Immigration

[2018] FCCA 399

FEDERAL CIRCUIT COURT OF AUSTRALIA

DCD17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 399

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Protection visa – whether the Tribunal failed to properly consider the applicant’s claims for protection – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5J, 36, 476

Applicant: DCD17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2176 of 2017

Judgment of: Judge Street

Hearing date: 21 February 2018

Date of Last Submission: 21 February 2018

Delivered at: Sydney

Delivered on: 21 February 2018

REPRESENTATION

The applicant appeared in person.

Solicitors for the Respondents: Mr A Fisher
HWL Ebsworth Lawyers

ORDERS

1. The application is dismissed.

2. The applicant to pay the first respondent’s costs fixed in the amount of $5,600.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2176 of 2017

DCD17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 16 June 2017 affirming a decision of the delegate not to grant the applicant a protection visa.

2. The applicant was found to be a citizen of Bangladesh and his claims were assessed against that country. On 16 December 2014, the applicant commenced an application for a subclass FA 600 (Sponsored Family Stream) Visitor visa. On 22 December 2014, the applicant was granted an FA 600 visa valid until 22 March 2015 for a single entry of 15 days. It was not until 8 February 2015 that the applicant arrived in Australia. The applicant then lodged an application for protection on 20 February 2015.

3. The applicant claimed to fear harm by reason of being a supporter and former office bearer of the opposition, Bangladesh National Party (“BNP”). The applicant claimed to fear that activists from the ruling Awami League backed by government agents would detain, imprison and assault the applicant if he returns to Bangladesh because of his past involvement with the BNP. The applicant also claimed to fear harm by reason of the pursuit of a false criminal case against him.

4. On 7 August 2015, the delegate refused to grant the applicant a protection visa and found the applicant failed to meet the criteria for the grant of a visa under the Act. The delegate did not accept that the applicant was shot at by activists in December 2013 and the delegate did not accept the applicant was so concerned for his safety following the claimed March 2012 and December 2013 attacks that he sought to leave Bangladesh. The delegate did not accept the applicant was in hiding following the March 2012 and December 2013 incidents. The delegate did not accept that the applicant’s assertion that police came to the applicant’s home and told his wife there was a case against him and did not accept that the applicant had a genuine fear of harm in Bangladesh.

The Tribunal’s decision

1. The applicant applied for review on 24 August 2015. The applicant was invited to attend a hearing before the Tribunal, and the applicant appeared before the Tribunal on 20 April 2017 to give evidence and present arguments.

2. Following the hearing, on 9 May 2017 the applicant’s representatives contacted the Tribunal to advise the applicant had lost images from his home allegedly showing his participation in BNP events. On 29 May 2017, the applicant sent an email directly to the Tribunal identifying a page with a photograph and on 15 June 2017, the Tribunal responded to the applicant’s representative that the Tribunal proposed to proceed on the basis that the untranslated article was general in nature and did not relate specifically to the applicant. The applicant’s migration agent was given until 16 June 2017 to provide any further submissions in this regard and no further information was provided.

3. The Tribunal summarised the relevant law in Annexure A to the Tribunal’s reasons and summarised the applicant’s claims and evidence. The Tribunal made reference to the applicant’s circumstances in Australia and his brother being here, who the applicant did not call to support his assertions as to his activities in Australia, and the Tribunal was not satisfied the applicant had been completely candid about his circumstances in Australia.

4. The Tribunal identified having extensive concerns about the truthfulness of the applicant’s claims. The Tribunal referred to the applicant’s account of his political profile in Bangladesh and his experience being often vague and repetitive. The Tribunal did not accept that the applicant was able to provide adequate insights or details, given the alleged long period of political activism, and that he had no real corroborative evidence.

5. The Tribunal formed the impression that the applicant was not speaking from his personal experience at all. The Tribunal formed the impression the applicant only had a limited knowledge of any direct experience with the BNP. The Tribunal accepted it is plausible that the applicant favours the BNP and took into account that the BNP is one of Bangladesh’s oldest and largest parties.

6. The Tribunal referred to the applicant’s claim to be a BNP officer-holder and campaigner. The Tribunal noted the applicant struggled to identify the four units of the BNP and was invited to comment on reports that the BNP had been quite inactive in 2011 due to internal conflict. The applicant agreed and the Tribunal found the applicant’s comments about the BNP and its internal difficulties were vague, and the Tribunal formed the view that it did not reflect the insights or perspective that the insider would have.

7. The Tribunal referred to the alleged supporting material. The Tribunal identified raising with the applicant concerns in relation to problems on the documents, and in particular letters dated 1999 and February 2014. The Tribunal also raised concerns in relation to the letter written by the applicant’s wife and referred to a letter written by the President of the BNP Australia Inc 10 April 2017. The applicant said he did not have the original letter and the applicant did not provide any further details or supporting evidence to show his involvement in the BNP in Australia. The Tribunal placed little weight on the evidence of the applicant’s profile or level of commitment to the BNP in Bangladesh or more recently in Australia.

8. The Tribunal referred to the applicant’s explanation in relation to what happened to his other evidence and found the explanation unpersuasive and did not accept that all photographs showing the applicant engaged in political work or similar were on one camera which his son erased.

9. The Tribunal accepted that the applicant had been a BNP supporter and may have participated in some local BNP activities in support of the party. The Tribunal did not accept that the applicant was a member or that he occupied any local position, even at the Thana or ward level. It follows that the Tribunal did not accept the applicant had any local profile or influence that might bring him to adverse attention of Awami League figures.

10. The Tribunal referred to the alleged attacks raised by the applicant in March 2012 and December 2013. The Tribunal identified reasons for concern in relation to the applicant’s claims concerning the March 2012 incident and the applicant’s allegation that he was in hiding for most of the time. The Tribunal found the applicant remained living at the family residence. The Tribunal found the applicant’s evidence about the issues, such as his work and residence to be changeable and difficult to reconcile with the substance of his protection claims. The Tribunal referred to the December 2013 incident and provided reasons in support of credibility concerns in respect of that incident, including the delay before he departed Bangladesh following having been granted the subclass FA 600 visa.

11. The Tribunal referred to the applicant’s allegation of a false case being brought against him about a month after the alleged second attack. The Tribunal noted the applicant did not provide any paperwork in support of this matter and again raised the applicant’s delay in departing Bangladesh as a credibility concern in relation to this claim.

12. The Tribunal also referred to the applicant’s claim that he had to pay a bribe for a passport to leave Bangladesh. The Tribunal found the applicant’s claims about being targeted by the Awami League cadres and Bangladesh authorities to be problematic. The Tribunal rejected the applicant’s claim to be a Jatiyatabadi Jubodal (“JBD”) activist and persona with a political profile. The Tribunal found the applicant’s account of incidents lacked detail and that the applicant’s conduct and his continued residence and apparent lack of urgency in trying to depart Bangladesh for Australia added to the Tribunal’s credibility concerns. The Tribunal also found the applicant’s lack of curiosity about the false charges and his stated willingness to appear in public demonstrations in mid-2014, which the Tribunal did not accept occurred, to be problematic.

13. It was in these circumstances the Tribunal did not accept the Awami League cadres attacked the applicant in March 2012 or December 2013, or that he was a subject of false charges in January 2014. The Tribunal rejected the associated claims, including that the applicant received physical injuries; that he was fearing for his life; that he was in hiding for some or all of that period; that he was unable to find work because he was in hiding because of any political profile; that he was looking for opportunities to leave Bangladesh due to his fear of the Awami League cadres and the Bangladesh authorities; or that his wife is depressed because of these circumstances. The Tribunal did not accept the applicant needed police protection. The Tribunal found the applicant departed Bangladesh using a genuine Bangladesh passport in his own name. The Tribunal did not accept the applicant paid brides to obtain the passport or so he could depart Bangladesh.

14. The Tribunal referred to the applicant’s wife’s claim that Awami League cadres are coming to their home asking if the applicant has returned from Australia yet, and police have visited from time to time. The Tribunal did not accept that the applicant’s wife is seriously depressed because of past experiences and the Tribunal has rejected those claims. The Tribunal did not accept that someone threw a bomb onto the veranda of their home for alleged political revenge, or that the applicant’s wife and the applicant fear that his claimed opponents may take other action such as kidnapping the children.

15. The Tribunal accepted the applicant had attended some events at a BNP-related group in Australia and that he may become a member of this group. The Tribunal did not accept on the material that the applicant has a political profile as a result of this activity or that it signals that he has developed a political commitment whilst in Australia.

16. The Tribunal did not accept the applicant was as BNP or JBD member or activist or office holder at any time. The Tribunal did not accept that the applicant attracted adverse attention of Awami League cadres and suspected criminal acting on their behalf, that he was threatened; that he was assaulted or the subject of an attempted murder, or that he had to take precautionary measures such as hiding or avoiding regular work.

17. The Tribunal found the applicant had no profile based on his past support or preference for the BNP in his home region or elsewhere. The Tribunal accepted that the applicant attended some BNP-related activities in Australia. The Tribunal found the applicant has not developed any further political commitment as a result of the very limited activities in Australia or that his mere presence at such meetings gives him an adverse political profile in the eyes of the Bangladeshi authorities generally or his alleged political enemies in his home region.

18. The Tribunal accepted that the applicant may continue to favour the BNP and participate in some local events. The Tribunal found, given the low level of support and interest, the Tribunal found there is no real chance of the applicant attracting adverse attention from Awami League supporters or cadres, or Bangladesh authorities for political reasons. The Tribunal found the applicant will not have to refrain from any political activity or modify his conduct in order to avoid the risk of being persecuted.

19. The Tribunal took into account the applicant’s past circumstances and in particular the finding by the Tribunal that the applicant has a low level of political engagement and has not been the subject of adverse attention from Awami cadres or Bangladesh authorities. Based on these past experiences, the Tribunal was not satisfied that the applicant, even if he were to continue a low-level BNP supporter on his return to his home region, faces a real chance of serious harm amounting to persecution.

20. The Tribunal found there is no real chance the applicant would be targeted on political grounds or for any other reason set out in s 5J(1) of the Act or being subject to extortion or similar demands that result in serious harm. The Tribunal found there is no real chance of the applicant requiring protection from this or similar harm or of the Bangladesh authorities denying him protection for reason of his BNP preference or other reasons set out in s 5J(1) of the Act.

21. The Tribunal found the applicant is not subject to any false or politically-motivated criminal charges or any associated legal action in Bangladesh. The Tribunal found there is no real chance of the Bangladeshi authorities arresting the applicant on his return to that country, imprisonment, prosecuting, or in any other way inflicting serious harm on him in relation to such charges. Having considered the applicant’s circumstances cumulatively, the Tribunal found the applicant did not face a real chance of serious harm amounting to persecution for any reason set out in s5J(1) of the Act in Bangladesh in the reasonably-foreseeable future, and that the applicant failed to meet the criteria under s 36(2)(a) of the Act.

22. The Tribunal was not satisfied there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Bangladesh there is a real risk the applicant will suffer significant harm under s 36(2)(aa) of the Act and affirmed the decision under review.

Before this Court

1. At the commencement of the hearing, the Court explained to the applicant that this was a final hearing to determine whether the Tribunal’s decision was affected by relevant legal error. The Court explained that the relevant legal error had to be either an excess of statutory power or a denial of procedural fairness to the applicant. The Court explained that this meant the Court was considering whether the Tribunal’s decision was unlawful or unfair. The Court explained that if satisfied the Tribunal’s decision was unlawful or unfair, the decision would be set aside and sent back for further review. The Court explained that, if not satisfied the Tribunal’s decision was unlawful or unfair, the application would be dismissed with costs.

2. The Court explained that it would have identified the evidence, then hear submissions from the applicant, then hear submissions from the solicitor for the first respondent and then hear submissions from the applicant in reply. The applicant confirmed that he understood the nature of the hearing as explained by the Court.

3. On 5 October 2017, a Registrar of the Court made orders providing the applicant with an opportunity to file an amended application, affidavit evidence and submissions. The applicant provided submissions in support of the three grounds in his application on 14 February 2018.

4. The grounds in the application are as follows:

   1. The Tribunal has not properly dealt with the applicant's claim for a protection visa, despite the applicant's real fear of persecution. In fact, the Second Respondent made a jurisdictional error.

   2. The Second Respondent miscalculated the applicant claim, this made a legal error.

   3. The Second Responded denied that the applicant was attacked by the Awami Cadres without any basis and made an error in deciding the review.

Consideration

1. From the bar table, the applicant maintained that he had told the Tribunal the truth and that he had provided the Tribunal with all the evidence. The applicant maintained that his life would be at risk if he returned to Bangladesh and that the situation there had deteriorated, that the incidents he alleged occurred in March 2012 and December 2013 occurred, and that there was a case outstanding against him.

2. Each of the claims raised by the applicant orally were the subject of consideration and adverse findings by the Tribunal as summarised above. The Tribunal provided reasons in support of those adverse findings that were open on the material and which cannot be said to be illogical or unreasonable. The Tribunal did not fail to take into account any integer of the applicant’s claims and on the face of the material before the Court, made dispositive findings in respect of the applicant’s claims.

3. On the material before the Court, the applicant had a real and meaningful hearing. On the material before the Court, the Tribunal complied with its statutory obligation in the conduct of a review. On the material before the Court, the Tribunal complied with is obligations of procedural fairness in the conduct of the review.

4. I accept the first respondent’s submissions that the applicant’s submissions from the bar table were in substance an invitation to this Court to engage in impermissible merits review. This Court does not have power to revisit the merits. Nothing said by the applicant from the bar table identified any jurisdictional error.

Ground 1

1. In relation to ground 1, the applicant’s written submissions expand on this ground asserting that the applicant provided corroborative material and answered all relevant evidence and that the Tribunal took into account country information, whereby it was alleged there was error. The Tribunal’s reasons reflect an orthodox approach to the determination of the applicant’s claims. There is no integer of the applicant’s claims that the Tribunal had failed to address.

2. It was a matter for the Tribunal to determine what weight to give the alleged corroborative material. The adverse findings made by the Tribunal were open to the Tribunal for the reasons given by the Tribunal as summarised above.

3. It was also noted in the applicant’s written submissions that the Tribunal was influenced by the country information. It was a matter for the Tribunal to determine what weight to give the country information. Ground 1 in substance reflects a disagreement where the adverse findings by the Tribunal and does not identify any jurisdictional error.

Ground 2

1. In relation to ground 2, the applicant’s written submissions expand upon this ground in relation to the alleged false case. The particulars assert that the Tribunal, without any logical evidence, rejected the applicant’s claims.

2. The Tribunal provided logical and rational reasons in support of its adverse findings, including the applicant continuing to reside at his residence, and the delay in the applicant departing Bangladesh in circumstances where he had been granted a protection visa that would have allowed him to leave in December of 2014 rather than 8 February 2015. Those adverse findings were logical and rational.

3. It was open for the reasons given by the Tribunal to reject the applicant’s claim that he had been the subject of a false case, also taking into account the lack of documentation in support of that claim. On the face of the material before the Court, the Tribunal correctly identified the relevant law. Ground 2 is in substance, a disagreement with the adverse findings by the Tribunal and does not identify any jurisdictional error.

Ground 3

1. In relation to ground 3, the applicant complains about the adverse credibility finding by the Tribunal rejecting the evidence of the incidents the applicant alleges, including the incident involving the grenade and his wife’s evidence by letter provided to the Tribunal. The adverse credibility findings were open to the Tribunal for the reasons given by the Tribunal as summarised above, and the Tribunal was not required to accept the applicant’s evidence as being true.

2. It was a matter for the Tribunal to determine what weight to give the alleged corroborating material from the applicant’s wife. The adverse credibility findings cannot be said to be matters that were insignificant or trivial. In substance, ground 3 reflects a disagreement with the adverse findings by the Tribunal and does not identify any jurisdictional error.

3. As the application fails to make out any jurisdictional error, the application is dismissed.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 22 March 2018