DCV16 v Minister for Immigration

[2017] FCCA 1354

FEDERAL CIRCUIT COURT OF AUSTRALIA

DCV16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1354

Catchwords:
MIGRATION – Protection (Class XA) visa – whether Administrative Appeals Tribunal’s decision affected by jurisdictional error – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.36(2), 36(2)(a), 36(2)(aa)

Convention relating to the Status of Refugees 1951 as amended by the 1967 Protocol relation to the Status of Refugees, art.1A(2)

Cases cited:

Applicant A v Minister for Immigration & Ethnic Affairs (1997) 190 CLR 225

ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174

Applicant: DCV16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 981 of 2016

Judgment of: Judge Jarrett

Hearing date: 13 April 2017

Date of Last Submission: 13 April 2017

Delivered at: Brisbane

Delivered on: 22 June 2017

REPRESENTATION

Counsel for the Applicant: Mr Quinn

Solicitors for the Applicant: Hopgood Ganim Lawyers

Counsel for the First Respondent: Ms Wheatley

Solicitors for the First Respondent: Clayton Utz

The Second Respondent entering a submitting appearance

ORDERS

1. The further amended application filed on 17 February, 2017 be dismissed.

2. The applicant pay the first respondent’s costs of and incidental to the further amended application fixed in the sum of $7,206.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 981 of 2016

DCV16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. By his further amended application for review filed on 17 February, 2017 the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal which affirmed a decision of a delegate of the first respondent to refuse the applicant a Protection (Class XA) visa.

2. The applicant contends by his further amended application for review that the Tribunal fell into jurisdictional error in that it:

   a)misconstrued the expression “political opinion” in Article 1A of the Refugees Convention;

   b)made a purported decision that was manifestly illogical, irrational or unreasonable;

   c)failed to take into account a relevant consideration; and

   d)failed to discharge its core function to review the decision.

3. At the hearing of the application before me, the applicant, by his counsel, abandoned the fourth ground of review set out in his further amended application, but advanced arguments in respect of the other three.

4. The first respondent opposes the application.  The second respondent entered a submitting appearance.

Background

1. The applicant is a citizen of Bangladesh.  He arrived in Australia as an unlawful maritime arrival on 20 March, 2013.  He applied for a protection visa soon thereafter.  He provided a statutory declaration with his visa application in which he provided details of his claims to have a well-founded fear of persecution should he be returned to Bangladesh.

2. The applicant claimed that he had a well-founded fear of persecution, based on the following:

   a)he was a member and supporter of the Bangladesh National Party before he left Bangladesh and that local Awami League activists had assaulted him and threatened to kill him because of his involvement with the Bangladesh National Party and his refusal to join the Awami League;

   b)Awami League activists will kill or harm him if he returns to Bangladesh because of his political opinion;

   c)he was a loyal and committed member of the Bangladesh National Party which was evident as his role as general secretary of the Jubo Dal youth wing of the party which he held for three years prior to leaving Bangladesh;

   d)the applicant claimed he had been a supporter of the Bangladesh National Party since approximately 2001, regularly attending party rallies and meetings;

   e)as the general secretary he attended meetings, organised regular meetings of the local Bangladesh National Party supporters in his village and was involved in recruitment to join the party;

   f)in September 2012 he was specifically targeted and brutally attacked by members of the Awami League due to his refusal to swap political parties; and

   g)he fears that the Bangladeshi authorities will punish him as a failed asylum seeker.

3. About a year after making his application, the applicant was invited to attend an interview in relation to his visa application.  On 22 September, 2014 a delegate of the Minister refused the applicant a Protection visa.  The applicant applied for a review of that decision by the second respondent. 

4. The Tribunal was unable to make a decision on the review application favourable to the applicant on the material before it and so invited him to attend before it to give evidence and make submissions in support of his application.  A hearing took place on 18 January, 2016 for that purpose.  Prior to the hearing, the applicant, by his representatives made written submissions to the Tribunal in support of his application for review.  Those submissions included a further statutory declaration by the applicant.  

5. The applicant appeared at the hearing on 18 January, 2016 with his representative who attended by telephone.  For reasons which are not material, the Tribunal needed to be reconstituted and a further hearing took place on 22 August, 2016. 

6. On 5 October, 2016 the Tribunal affirmed the delegate’s decision not to grant the applicant a Protection visa.

The Tribunal’s Decision

1. The Tribunal harboured concerns about the applicant’s credibility generally.  The Tribunal remarked:

   19. Even allowing for these factors, the Tribunal considers that much of the applicant’s claims and evidence were problematic. There were numerous inconsistencies, and the applicant made many vague, generalised statements which he was often unable to substantiate or provide further meaningful details. The Tribunal’s assessment of his claims and evidence follows immediately below.

2. The Tribunal accepted that the applicant and his family generally supported the Bangladesh National Party.  Whilst the applicant gave evidence that he had campaigned during certain elections for the local Bangladesh National Party candidate and had done other work during the 2008 parliamentary election campaign the Tribunal did not accept the applicant’s evidence about that.  The Tribunal found his evidence to be vague and lacking in the kind of detail that comes from lived experience. 

3. The Tribunal did not accept that the applicant played a key role, as he had claimed, in collecting donations and carrying building materials for the construction of a local school that the Bangladesh National Party had sponsored or that he had participated in Bangladesh National Party led charity work. 

4. The Tribunal determined that the applicant was a “low level” supporter of the Bangladesh National Party.  It accepted that he may have attended public meetings or rallies, particularly around election time.  But the Tribunal thought that the applicant’s involvement with the Bangladesh National Party was merely as a member of the general public who preferred the Bangladesh National Party and not as a party worker or affiliate in any way. 

5. The Tribunal found that he was not actively engaged in any organisation or support activity, he did not campaign for the party around elections and he did not engage in charitable or developmental activities on behalf of the party.  The Tribunal rejected the applicant’s claim that he was the joint secretary of the Bangladesh National Party’s Youth Wing in 2010. 

6. The Tribunal had regard to country information available to it which supported the proposition that there was a high level of document fraud in Bangladesh including willingness of officer bearers, upon payment of money or to assist friends or family, to write supporting letters whose contents were either false or not verified.  The Tribunal therefore had difficulties with the provenance of certain documents produced by the applicant in support of his claims. 

7. The Tribunal rejected that the Awami League or any of its officers had any particular interest in the applicant and it rejected his claims that he had been attacked and assaulted by Awami League supporters twice in September, 2012.  Further, the Tribunal rejected the applicant’s claims that some 15 days before he left Bangladesh some 10-12 Awami League supporters came to his home and told his mother that they would kill the applicant if he refused to join their party.  The Tribunal found that the applicant had given an untruthful account of the events that led to his departure from Bangladesh, including the reason for his departure from his local area and the process that led to him joining a boat sailing out from south-eastern Bangladesh.

8. The Tribunal rejected the applicant’s claims that since he has left Bangladesh Awami League supporters have been returning to his home and looking for him, threatening his mother and warning that they will assassinate him if he returns to Bangladesh. 

9. The Tribunal concluded that it was not satisfied that the applicant had a well-founded fear of persecution if he returned to Bangladesh and found that he was not a person to whom Australia had protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relation to the Status of Refugees.  Further, the Tribunal did not accept that there were substantial grounds for believing that as a necessary foreseeable consequence of the applicant being removed from Australia to Bangladesh, there was a real risk that he would face significant harm for the purposes of the Migration Act 1958 (Cth). The Tribunal affirmed the decision under review.

Consideration

1. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention and Protocol.

2. Article 1A(2)  of the Refugees Convention relevantly defines a refugee as 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, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.’

3. By his first ground of review the applicant contends that the Tribunal misconstrued or misapplied the phrase “political opinion” as used in Article 1A(2) of the Convention. 

4. The concept of “political opinion” has a wide meaning.  It is not limited to membership or support of a particular political party, it may be “diverse, imprecise and even idiosyncratic (ApplicantA v Minister for Immigration & Ethnic Affairs (1997) 190 CLR 225 at 284) and includes imputed political opinions.

5. Contrary to the applicant’s submissions, the Tribunal found that the applicant had a “political opinion”.  The Tribunal understood that by expressing a preference for a particular political party, in this case the Bangladesh National Party, the applicant held a particular political opinion.  To the extent that the applicant’s submissions suggest that the Tribunal misunderstood what was required by the phrase “political opinion” the submissions pay no attention to the finding by the Tribunal that the applicant held a political opinion, namely a preference for the Bangladesh National Party.

6. The use of the descriptor “low level” to describe the applicant’s political opinion was no more than a means by which the Tribunal assessed whether the applicant’s fear of being persecuted by reason of his political opinion was well-founded.  The Tribunal was obliged to make an assessment about whether the applicant held a fear of being persecuted for reasons of his political opinion and whether that fear was well-founded.  It is to that part of the definition of refugee in Article 1A(2) of the Convention that the Tribunal’s finding that the applicant was a “low level supporter” of the Bangladesh National Party was directed.

7. The applicant submits that he did not seek a protection visa “on the basis of a “high level involvement in the BNP”.  His claim was that Awami League supporters assaulted him and threatened to kill him because of his involvement with the BNP”.  However, whilst that was the applicant’s argument before the Tribunal, the Tribunal did not accept it.  The Tribunal found that he held a relevant political opinion, but rejected his claims that Awami League supporters had assaulted him and threatened to kill him because of his involvement with the Bangladesh National Party.  The Tribunal rejected all of the claims made by the applicant about his involvement with the Bangladesh National Party.

8. Ground one of the applicant’s further amended review application reveals no jurisdictional error.

9. The applicant’s second ground of review suggests that the Tribunal fell into jurisdictional error by making a purported decision that was manifestly illogical or irrational. The applicant’s submissions, however, do not identify the particular decision made by the Tribunal that was said to be irrational or illogical. It is not suggested, for example, that any of the particular findings of fact made by the Tribunal in respect of the claims made by the applicant were illogical or irrational. It seems to be the case that the applicant is suggesting that the Tribunal’s decision, that it was not satisfied that he had a well-founded fear of persecution for the purposes of s.36(2)(a) or perhaps that there was a real risk that the applicant would suffer significant harm if he was returned to Bangladesh for the purposes of s.36(2)(aa), was irrational or illogical.

10. As the first respondent submits, illogicality or irrationality in fact finding sufficient to sustain a finding of jurisdictional error is a very high threshold.  It has been said that an applicant needs to demonstrate “extreme illogicality or irrationality”: ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 at [47].

11. There is no irrationality or illogicality in the Tribunal’s decision, in my view. The Tribunal correctly identified each of the applicant’s claims, assessed each of them and made findings in respect of them. Unfortunately for the applicant, the findings made by the Tribunal were not those for which he contended. Having made the findings that it did, the Tribunal then considered the facts as it had found them to be against the statutory framework for the grant of the visa. It determined that it was not satisfied that the criteria set out in ss.36(2)(a) or 36(2)(aa) of the Act were met.

12. The conclusion to which the Tribunal came was open to it on the evidence and even though a different decision maker may have come to a different conclusion on that same evidence, it does not follow that the Tribunal’s decision in this case was irrational or illogical.  The second ground of review relied upon by the applicant does not establish jurisdictional error.

13. Alternatively, the irrational or illogical finding to which the applicant’s argument is directed might be the finding by the Tribunal that the applicant did not face a real risk of serious harm amounting to persecution because the applicant had not engaged in any political activism since his departure from Bangladesh.  As to that alternative, I accept the first respondent’s submissions that the Tribunal’s decision about that matter, in the circumstances of this case, was not irrational, illogical or unreasonable simply because one conclusion has been preferred to another possible conclusion.  As to this matter, the Tribunal said:

    76. In light of the above findings, namely that the applicant does not have an adverse political profile in Bangladesh and that he has not engaged in any political activism since his departure, and in the absence of any suggestion that he is wanted in connection with criminal (including war crime) matters, the Tribunal is not satisfied that the applicant faces a real chance of serious harm amounting to persecution for reason of his future status as a failed asylum seeker (if he were to return to Bangladesh on that basis), due to his illegal departure from that country, or for any associated reason.

    77. In sum, the Tribunal does not accept that he has a well-founded fear of persecution for reasons of any political opinion, his future status as a failed asylum seeker, or for any other Convention reason.

14. I accept the first respondent’s submissions that the Tribunal did not base its finding that the applicant did not have a real chance of serious harm on only the finding that he had not engaged in any political activism since leaving Bangladesh.  The finding made by the Tribunal was plainly open to it on the facts as the Tribunal found them to be. 

15. The applicant argues that the Tribunal failed to take into account a relevant consideration.  To succeed on such an argument, the applicant must demonstrate that the consideration that was allegedly ignored was a consideration that the Tribunal was required to take into account. 

16. The Tribunal was required to take into account the most recent Department of Foreign Affairs and Trade country information report for Bangladesh.  That material was mandated by Ministerial Direction 56.  However, the Tribunal’s reasons make it clear that the Tribunal took that information into account.  So much appears at paragraphs 69 and 74 of the Tribunal’s reasons.  As the first respondent points out it also took into account the “generally high levels of political violence in Bangladesh both between and within the major parties”.  The Tribunal also took into account the country information relied upon by the applicant and referred to that information in its reasons.  The Tribunal did not fail to consider, as the applicant alleges, specific relevant examples of the Awami League members propensity for violence against supporters of the Bangladesh National Party and the cultural impunity that allegedly exists in Bangladesh.  It took into account the information the Tribunal had before it about the violence between the major political parties in Bangladesh.

17. I accept the first respondent’s submissions that the applicant’s arguments in relation to this ground cavil with the merits of the Tribunal’s decision and the weight that it ascribed to various aspects of the country information before it and ultimately the assessment that it made as to whether the applicant faced a well-founded fear of persecution should he be returned to Bangladesh. 

18. In my view, the applicant has not demonstrated that the Tribunal has fallen into jurisdictional error because the Tribunal has not taken into account a relevant consideration.

Conclusion

1. The Tribunal’s decision is not affected by jurisdictional error. 

2. The further amended application for review must be dismissed with costs. 

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 22 June, 2017.

Date: 22 June 2017