DDG16 v Minster for Immigration

[2018] FCCA 1160

FEDERAL CIRCUIT COURT OF AUSTRALIA

DDG16 v MINSTER FOR IMMIGRATION & ANOR [2018] FCCA 1160

Catchwords:
MIGRATION – Application for judicial review – protection visa – no matters of principle – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Cases cited:

Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407

Applicant: DDG16

First Respondent: MINSTER FOR IMMIGRATION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2298 of 2016

Judgment of: Judge Riethmuller

Hearing date: 5 February 2018

Date of Last Submission: 5 February 2018

Delivered at: Melbourne

Delivered on: 5 February 2018

REPRESENTATION

The Applicant appeared In Person

Counsel for the First Respondent: Ms Grinberg

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. The application be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $5,800.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2298 of 2016

DDG16

Applicant

And

MINSTER FOR IMMIGRATION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Extempore)

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 21 September 2016.  The Tribunal affirmed the decision of a delegate to refuse to grant the applicant a Protection (Class XA) visa. 

2. The applicant is a citizen of Bangladesh who arrived in Australia on

   
   

   6 December 2012 by boat and without a visa. 

3. On 12 April 2013 the applicant lodged his application for a protection visa.  In December 2014 a delegate refused his application.  Later that month the applicant applied to the Tribunal for review of the delegate’s decision.  On 21 September 2016 the Tribunal affirmed the delegate’s decision refusing to grant a visa. 

Claims for Protection

1. The applicant’s claims for protection were set out in his statutory declaration dated 9 April 2013 and various other submissions made to the Tribunal and the delegate.  The Tribunal summarised these claims at [11]:

   - He is a citizen of Bangladesh. He is a Muslim.

   - He was born on 1 January 1986 in the village of [T] in the district of [N]. He lived at home with his parents and brother. He has another brother who works in Singapore.

   - He completed school in 2004. He thereafter worked in a printing business on an irregular basis. He did not have a secure job since leaving school.

   - For the past 18 months he was involved in politics with the Awami League (AL). They paid him some money when he did political work in his village and the local area. The AL paid for the repair of roads and basic infrastructure and provided funds to people who had problems. He liked the work for the first 7 or 8 months but did not like the work thereafter. Only one tenth of the money went to the community and the rest was taken dishonestly to enrich local members of the AL.

   - Members of the AL were also involved in the rape of local girls, alcohol, drug trafficking and kidnapping. There were about 16 members of the AL in his Police Station area and they seemed to be involved in criminal activities including murder.

   - In July 2012, a person named [P1], who was not involved in politics, was murdered by a person named [P2]. He did not say anything because he could have been murdered as well. From October 2012, he decided to leave the AL and join the Bangladesh Nationalist Party (BNP).

   - On 19 October 2012, four members of the AL approached him when he was on the street and beat him on the head with a large wooden stick. He went to hospital to receive treatment. His father wanted him to go to the Police but he was afraid to do so. He knew the Police could not do anything and he could have a bigger problem.

   - On the night of 1 November 2012, he and his brother were in their room, which was separated from the rest of the house, when five people knocked on the door. His brother looked through a peephole in the door and saw people standing there with a big knife. He escaped through a small window at the back of the room and went to a village named Chinardi which was two or three villages away from his own. He stayed there with a friend for five days.

   - When his. younger brother opened the door, the men hit him and asked him where he had gone. He returned to his village after five days and had no problems for the next two days. The group of men then returned and knocked on his parents’ room and asked them where he had gone. He was in his room at the time and was able to leave and go to Chinardi.

   - He telephoned his father the following morning and his father asked him to return home. His father told him it was too dangerous for him to remain in their village and he should go to Chittagong to the house of a friend-of his older brother. After-he left, his father went to the Police but the Police refused to accept his report as they were involved with the AL.

   - He stayed in Chittagong for eight days from 11 November 2012. His father told him it was not safe for him to stay there and he needed to leave Bangladesh. His father paid an agent in Chittagong for him to leave Bangladesh and travel to Australia.

   - He fears returning to Bangladesh because he fears serious harm from the members of the AL in his area because he has knowledge of the crimes they commit. They would want to silence him and he believes they will carry out the threats they have already made towards him. He has already been injured by them and he believes they came to his house to kill him.

   - He does not believe the Police will help him. They are corrupt and are paid off by the AL.

   - At the end of February 2013, his father told him that the shop belonging to the younger brother of one of the sixteen AL members was damaged and the Police went to his house asking about his whereabouts. He is being blamed for the damage to the shop and a Warrant has been issued against him.

   - He does not believe he can safely relocate anywhere in Bangladesh. The AL is very powerful and they can find him anywhere in the country.

2. The claims were expanded upon by the applicant at an interview with the department in October of 2014 as well as his statutory declaration and submissions made in May 2016 and June 2016.

Tribunal’s Findings

1. The Tribunal found the applicant’s evidence to be vague, implausible and unconvincing. The Tribunal provided many detailed examples of inconsistencies: see [19] to [60] of their decision. Ultimately the Tribunal rejected the applicant’s evidence, finding that he was not a reliable or credible witness, concluding that he had fabricated his claims: see [61].

2. Specifically, the Tribunal did not accept: (a) that the applicant was a supporter or member of the Jubo or Awami League or the BNP: see [64]; and (b) that the man he called [P1] was murdered: see [64]. That he or his younger brother had been implicated in any criminal offences or investigations nor that his younger brother had been missing since 2014: see [65]. That the applicant was of adverse interest to the JL or AL, Bangladeshi police, Bangladeshi courts or any other Bangladeshi authority: see [66].

3. As a result, the Tribunal was not satisfied that the applicant was a person to whom Australia has protection obligations under the refugee convention and found that he did not meet the statutory criteria under the Migration Act 1958. 

Grounds of Application

1. The application for judicial review sets out two grounds:

   1.  The decision of the Tribunal:

   (a) is affected by an error of law; and

   (b) denied the applicant procedural fariness. 

2. Although Registrar Ryan of the Federal Circuit Court made directions on 26 April 2017 for the applicant to file written submissions, he has filed no additional material. 

3. The applicant’s submissions made today were largely reactive to a summary of the case in the Minister’s outline.  The applicant was unable to identify any error that appeared to be an error of law or a failure to afford procedural fairness. 

4. The applicant did raise four matters which it is appropriate for me to deal with. The applicant took issue with the Tribunal’s reasoning where it rejected his claim that the man he called [P1] had been murdered. The Tribunal reject this claim at [64]. The Tribunal’s reasoning in this regard is set out at [32] to [36], where the Tribunal says:

   32. The applicant gave evidence to the Tribunal that he joined the JL in mid-2010 and left in October 2012.  Despite his evidence to the Tribunal that he did not like the behaviour of the other members of the JL and what they were involved in, he did not leave the JL until October 2012 about 2 years later.  The Tribunal would expect that if the murder of [P1] and his knowledge of his murderer’s identity was one of the two main reasons why he left Bangladesh, he would have said so at the earliest opportunity when he was asked why he left Bangladesh.  He was interviewed by the Department on 19 December 2012 and was asked why he left Bangladesh.  In his response, he spoke about political issues but made no mention of [P1’s] death or his fears for his safety because he was aware of his murder’s identity.  The Tribunal put this information to the applicant, pursuant to s.424AA of the Act, and noted that it would expect him to have mentioned this if it was one of the two main reasons why he left Bangladesh and its concerns that his failure to mention this raised concerns in relation to the credibility of this claim.

   33.  The applicant requested and was granted additional time to respond to this information.  Following the hearing, the Tribunal received post-hearing submission’s from his migration agent who submitted that the audio recording of the interview on 19 December 2012 indicated that the applicant’s response to the question ‘why did you leave your country of nationality (country of residence)’ lasted 10 minutes suggesting that the opportunity to go into detail was limited.  He also submitted that the space on the form for his answer consisted of no more than half a page, suggesting that the answer to the question was not intended to be comprehensive.  He further submitted that the second last line of the text indicated that he responded ‘I stop participating and I know information about…’, was apparently consistent with his later claims as it confirmed that he had incriminating information on the people to whom he was referring even if he failed to fully articulate the nature of this information.

   34.  The Tribunal has considered these submissions and rejects them for the following reasons.  Firstly, whilst the applicant’s response to the question lasted 10 minutes it does not follow that his response was limited to 10 minutes.  The Tribunal is of the view that in 10 minutes he would have had plenty of time to mention his two main reasons for leaving Bangladesh without having to go into great details even taking into account his level of education, cultural factors, him speaking through an interpreter and that he was probably nervous and anxious.

   35  Secondly, whilst the space on the form for the applicant’s response may have been half a page suggesting that the answer to the question was not intended to be comprehensive, the Tribunal would expect the applicant to give his main reasons for leaving Bangladesh in brief and provide the details at a later date.  However, he made no mention of [P1’s] death and his subsequent fears.  Thirdly, the applicant’s response on the second last line of the text referred to in paragraph 33 above need to be considered in context.  It was given in the context of him stating that he had stopped participating in politics and was at risk because he knew information about what the group involved in politics was up to.

   36.  The applicant confirmed this during the hearing, when he stated that he was at risk because he knew that they were stealing money that was intended for development work and were involved in kidnapping and rape.  Therefore, the Tribunal does not accept the submission that the unfinished sentence is “apparently consistent with the applicant’s later claims” in relation to [P1’s] murder.

5. Importantly, the Tribunal had clearly raised this issue with the applicant’s advisers, as specific submissions in writing had been sent to the Tribunal on this issue:  see submissions at court book p.223.  It appears to me, that it was open to the Tribunal, to reach the conclusion that it did. 

6. The second matter raised by the applicant flowed from paragraph 21.8 of the Minister’s outline, which provides:

   21.8  there were inconsistencies in the applicant’s evidence regarding the incident on the night of 1 November 2012 when five people came to the applicant’s house; [FN: CB 245 [41] – [44].]

7. The applicant challenges this finding of fact.  The Tribunal discussed this issue at length in [41] to [44], saying:

   41. In his visa application, the applicant claimed that on the night of 1 November 2012 he and his brother were in their room, which was separated from the rest of the house, when five people knocked on the door. He claimed that his brother looked through a peephole in the door and saw people standing there with a big knife. He claimed that he escaped through a small window at the back of the room and went to a village named Chinardi which was two or three villages away from his own. He claimed that his brother opened the door, the men hit him and asked him where he had gone. He claimed that he stayed in Chinardi with a friend for five days.

   42. The applicant has filed with the Tribunal a copy of the Department's Decision Record dated 1 December 2014. It indicates that during his interview with the Department on 25 September 2014, the applicant gave a different version of this incident. He stated that he escaped through the back door of the house. He also stated that the assailants hit his brother with hockey sticks and stabbed him with a knife.

   43. During the hearing, the Tribunal discussed this incident with the applicant. He gave evidence that there was a knock on his bedroom door at about 1am or 1.30am. He stated that he woke up and was scared. He stated that he asked his brother to look through the keyhole and his brother saw 4 to 5 people armed with hockey sticks and a sword. He stated that his brother whispered to him to leave the area and he exited through the back door. He stated that he went to the village of Chinardi where he stayed at a friend's house. He stated that he contacted his family the following morning and his father told him that his brother had opened the front door and the masked men asked his brother where he was and his brother responded that he did not know. He stated that they pushed his brother and hit him with a hockey stick on his arm and leg.

   44. There are several inconsistencies in the applicant's evidence in relation to whether the people were armed with a big knife or hockey sticks or a sword; whether he escaped through a small window or the back door of the house and whether his brother was hit by the men or hit with hockey sticks and stabbed with a knife or hit with a hockey stick on his arm and leg. When the Tribunal raised as an issue with the applicant the many inconsistencies in his evidence and its concerns about the credibility of his claims, he responded that this incident happened a long time ago, he forgets dates and his is forgetful. The Tribunal does not accept this explanation.  The Tribunal is of the view that this would have been a significant event in his life which contributed to him leaving-Bangladesh and it is unlikely that he would have forgotten important details of this incident.

8. At court book p.61 – the initial version given by the applicant it set out in writing in his initial statement at [12]. Before me, the applicant stated that he could not have got out the small window at the back, because it was too small, which is, clearly, inconsistent with his initial statement. The applicant also sought to minimise the inconsistency between the claim that the men had a big knife or had a sword by saying that he would use the word “sword” for a big knife. It appears to me, that these are questions of fact for the Tribunal and that it was open to the Tribunal, to reach the conclusion that it did, and further that the Tribunal did have careful regard to the actual evidence before it.

9. The third matter raised by the applicant flowed from the Minister’s summary at paragraph 21.10 of their outline, where it is said:

   the applicant stated in his application that there was no criminal change or investigation against him that he was aware of, yet the applicant’s evidence was that, at the time his application was completed, he was aware that a warrant had been issued against him. [FN: CB 248 [56] – [58]].

10. The applicant challenges this conclusion.  However, it is dealt with at length by the Tribunal at [56] to [58], where the Tribunal says:

    56. During the hearing, the applicant gave evidence that his migration agent prepared his application for a Protection visa based on his instructions. He stated that his instructions were true and correct. Question 66 on the Application for a Protection visa refers to details of any convictions, charges, investigations or crimes committed. The first part of that question asks 'please give details of any crime or offence that you have been convicted of'. The second part of that-question asks-'please give details of any criminal investigation you are the subject of that you are aware of’ is.  The third part of that question asks 'please give details of any criminal charges currently pending against you'. The applicant responded 'N/A' in relation to each of these questions. Based on his own evidence in his visa application, the applicant was clearly aware of at least the first incident involving the damage to the shop, that he was named as one of the perpetrators, that the Police were investigating this crime and went to his house asking about his whereabouts and that a  “Warrant”  had been issued against him. This tends to indicate that he was aware that he was the subject of a criminal investigation and that there was a criminal charge pending against him.

    57. The Tribunal raised this as an issue with the applicant. The Tribunal noted that this could lead it to the conclusion that he answered these questions truthfully and that his claims in relation to being falsely charged and warrants issued against him to be fabricated. He responded that he always said the Police were looking for him and questioned when he said they were not looking for him. In post hearing submissions, the applicant's migration agent submitted that the applicant responded to this question in his visa application on 21 March 2013. He stated that his statement of claims was made on 9 April 2013, after he had signed the visa application on 21 March 2013. He stated that the Charge Sheets are dated 7 April 2013 and 28 May 2013 and therefore there was no reason to expect that the applicant could have indicated that he was aware that criminal charges had been laid against him.

    58. The Tribunal has considered this submission. However, it only addresses one of the questions in question 66 of the visa application and does not address the question in relation to being the subject of a criminal investigation. Whilst the applicant's statement of claims may have been dated 9 April 2013, in that statement of claims he claimed that at the end of February 2013 his father informed him that the shop of the younger brother of one of the 16 JL members was damaged, that he was being blamed for the damage to the shop, that the Police went to his house asking for his whereabouts and that a Warrant had been issued against him. He also gave evidence to the Tribunal that he had telephone contact with his family in Bangladesh once or twice a week and in cases of sickness or an emergency, every day. He would therefore have been aware on 21 March 2013, when he signed his visa application, that he was the subject of a criminal investigation. However, he responded 'N/A' to that question. This raises further concerns in relation to the applicant's credibility and the veracity of his claims.

1. The evidentiary basis for the Tribunal’s reference to his state of mind in February 2013 comes from his initial statement (at court book p.62 [22]) where he says:

   At the end of February 2013 when I phoned my father, I was told that the shop of the younger brother of one of the 16 was damaged.  I don’t know who damaged it as I was in Australia.  The police came to our house and asked about my whereabouts.  I am being blamed for the damage to the shop, and a warrant was issued against me, because of my having left the Awami League.  I will provide document to prove this soon.

2. This appears to be repeated at court book p.170 [44] of his material.  Again this is ultimately a question of fact for the Tribunal. I also note that the applicant was on notice, as his adviser made further submissions (at court book p.223) on this particular issue. 

3. A further claimed raised by the applicant was whether or not he made a representation to the Tribunal that he had no outstanding charges back when he filled in his initial application form.  The initial form is at court book p.38 where the applicant says that criminal charges or investigations are not applicable.  This form was signed on 21 March 2013: see court book p.40.  Later, on 9 April 2013, the applicant sets out the passage quoted above.

4. Finally the applicant disputed the Tribunal member’s finding with respect to the authenticity of two charge-sheet documents which the Tribunal concluded were not authentic.  The Tribunal dealt with this in some detail at [48] to [55], saying:

   48. The applicant has provided two documents to the Department and two documents to the Tribunal together with English translations. None of these documents is a Warrant. The two documents provided to the Department are very poorly translated into English and difficult to make sense of. The two documents provided to the Tribunal have better quality English translations. The first document is titled 'Charge Sheet' and has two dates on it; 7 April 2013 and 26 February 2013. It was signed by the officer in charge at Bandar Police Station, Narayanganj on 8 April 2013. It names four accused including the applicant. It describes an incident on 24 February 2013 where there was a violent altercation in the bazaar between a shopkeeper and several other people. It refers to the accused entering the shop and stealing cash of about 25,000 taka and goods valued at about 20,000 taka.

   49. The second document provided to the Tribunal is also a Charge Sheet and is dated both 8 May 2013 and 27 March 2013. It was signed by the sub- inspector at Bandar Police Station, Narayanganj on 8 May 2013. It names five accused including the applicant and his brother. It describes an incident on 22 March 2013 where the same shopkeeper was abducted from the shop by unknown persons wearing masks. It refers to two other shopkeepers approaching them but being threatened with weapons while they plundered the shop. It refers to them taking about 30,000 taka in cash and goods worth about 50,000 taka.

   50. The Tribunal has a number of concerns about the authenticity of these-·documents. Firstly, the two documents are both Charge Sheets and are in the same format. However, the first document is B.P. Form 39 and Bangladesh Form No: 5368. The second document is B.P. Form 59 and Bangladesh Form No: 5388. The Tribunal finds it implausible that the same form, used for the same purpose, from the same Police Station and used within a month of each other would have different B.P. Form numbers and Bangladesh Form numbers.

   51. Secondly, it is clear from the applicant's evidence during the hearing that the two documents he refers to as 'Warrants' are the two Charge Sheets that he provided to the Department and the Tribunal. If the first Charge Sheet was not signed by the officer in charge at Bandar Police Station, Narayanganj until 8 April 2013, this document could not have been given by the Police to the applicant's father and his father tell him about it at the end of February 2013 as claimed.

   52. Thirdly, the applicant gave evidence to the Tribunal that the Police handed the two Warrants to his father, on separate occasions, and told him that they came from the Court. The documents that have been provided to the Department and the Tribunal are not Warrants but Charge Sheets. Further, they have not been issued by the Court but by the officer in charge of Bandar Police Station, Narayanganj, in the case of the first document and by the sub- inspector at Bandar Police Station, Narayanganj, in the case of the second document.

   53. Fourthly, the applicant made no mention of the kidnapping incident and him being charged in relation to this incident in his visa application. This claim was made for the first time during his interview with the Department on 25 September 2014. The documents indicate that this incident took place on 22 March 2013 and he filed his visa application on 16 April 2013. The applicant's evidence to the Tribunal was that he has telephone contact with his family in Bangladesh once or twice a week and in cases of sickness or an emergency, every day. The Tribunal would therefore expect his father to have informed him of the kidnapping of the shopkeeper shortly after it occurred. The Tribunal would also expect that if he referred to the first incident in his visa application he would also have referred to the second incident in his visa application.

   54. Fifthly, the Tribunal would expect that if these two documents were given to the applicant's father at the times he claims, he would have obtained copies of these documents and provided them to his migration agent who could have then lodged them with the Department in the first half of 2013. However, he did not provide the documents to the Department until 25 September 2014.

   55. The Tribunal raised as an issue with the applicant its concerns in relation to the authenticity of these documents. The Tribunal also discussed with him country information on Bangladesh which indicates that that there is a significant prevalence of fraudulent documents in Bangladesh and that there is no difficulty at all for anyone to obtain these documents [FN: CX316824: "BGD103532.E Bangladesh Reports of fraudulent documents", Canada: Immigration and Refugee Board of Canada (RB), 20 September 2010.  He responded in words to the effect 'how am I going to prove the authenticity of these documents?'

5. It is open to a Tribunal, to make credibility findings and in many cases necessary: see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J. In this case the Tribunal provides detailed reasons for its credibility findings, discussing them at length. The issues raised by the applicant are in effect an attempt to engage in merits review. The findings of the Tribunal appear to me to have been open on the material before it.

6. In these circumstances the applicant has not established a ground for judicial review.  I must therefore dismiss the application.

   [Further argument ensued]

7. In this matter the applicant has been entirely unsuccessful.  The applicant should pay the first respondent’s costs.  The first respondent’s costs are less than what is permitted under the court scale. 

8. I therefore find that it is reasonable, for the applicant to pay the first respondent’s costs fixed at $5800.  I make orders accordingly.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Date: 10 May 2018