DDW19 v Minister for Immigration
[2020] FCCA 1955
•20 July 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DDW19 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 1955 |
| Catchwords: PRACTICE & PROCEDURE – Leave sought to rely on grounds of proposed amended application – whether there was such merit in the proposed grounds to warrant leave to amend in the interests of justice – no merit in the proposed grounds – leave to amend refused. |
| Legislation: Migration Act 1958 (Cth), ss.5, 5H, 5J, 36, 424AA, 424A, 476 |
| Cases cited: SZANH v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1280 VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 82; (2004) 80 ALD 559 QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46; (2009) 174 FCR 415 Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541; (2018) 92 ALJR 713; (2018) 357 ALR 408; (2018) 75 AAR 434; (2018) 163 ALD 1 Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 139 ALD 181 Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1; (2016) 329 ALR 491 ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; (2016) 250 FCR 109; (2016) 154 ALD 221 |
| Applicant: | DDW19 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2128 of 2019 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 30 June 2020 |
| Date of Last Submission: | 30 June 2020 |
| Delivered at: | Sydney |
| Delivered on: | 20 July 2020 |
REPRESENTATION
| Applicant: | In person |
| Representative for the Respondents: | Mr Dadgar |
| Solicitors for the Respondents: | HWL Ebsworth Lawyers |
ORDERS
Leave to amend the application of 19 August 2019 is refused.
The application made on 19 August 2019 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $7467.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2128 of 2019
| DDW19 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 19 August 2019 seeking review of the decision of the Administrative Appeals Tribunal (“the Tribunal”) which affirmed the decision of the Minister’s delegate (“the delegate”) to refuse to grant the applicant a protection visa (“the visa”).
In evidence before the Court is a bundle of relevant documents filed and tendered by the Minister (“Court Book” – “CB” – “RE1”).
Background
The applicant is a citizen of Bangladesh (CB 12). He arrived in Australia on 10 August 2014 (CB 19). His application for the visa was received by the Minister’s department (“the department”) on 30 July 2015 (CB 1– CB 47). Attached to the application was a statement by the applicant (CB 35–CB 36).
The applicant claimed to fear harm because of his political opinion. The applicant was a member of Chatro Dal a student wing of the Bangladesh Nationalist Party (“BNP”) (CB 35). He claimed that in 2011 he was involved in an on-campus fight between the Chatro League and Chatro Dal, during which he was shot in the back with a rubber bullet by police (CB 35).
He subsequently joined, Jatiyatabadi Judo [or Jubo] Dol, the youth wing of the BNP. However, the Awami League came to power, and subsequently attempted to suppress the BNP (CB 35–CB 36).
The applicant was charged with vandalism and assaulting police in July 2014. A warrant was issued for those charges in August 2014, following the applicant’s move to Australia (CB 36). In October 2014 and January 2015, while in Australia, the applicant was charged with vandalism and attacking a police vehicle with a petrol bomb in Bangladesh (CB 36). The applicant claimed that because of these charges the police have been attending his family home in Bangladesh and threatening his family. The applicant further stated that “if [he] return[s] to Bangladesh then [his] life will be endangered. [He] fear[s] for [his] life in Bangladesh under the current regime.” (CB 36).
The Delegate
The applicant was invited to, and attended, an interview with the delegate on 16 December 2015 (CB 96–CB 104 and CB 189). On 29 January 2016, the delegate refused to grant the applicant the visa (CB 184–CB 198). The delegate accepted that the applicant had “been involved in BNP political activities”, but was not satisfied that the applicant “…is a high profile political leader or member of the BNP who is being sought by the Bangladeshi government.” (CB 195).
The applicant provided the following documents to the delegate (CB 196):
“· Translated copy of a ‘Charge Sheet’ issued by the […] Metropolitan Police, dated 30 June 201527
· Translated copy of a “First Information Report” issued by the […] Metropolitan Police, dated 8 December 201528
· Translated copy of “Warrant of Arrest” issued by the Metropolitan Session Judge on 9 July 201529
· Translated copy of a “Court Order” from the court of Metropolitan Session Judge, […] issued 9 July 201530”.
[Footnotes Omitted.]
The delegate took into consideration country information which indicated that “…bogus documents are common and frequently used in Bangladesh.” (CB 196). The delegate was not satisfied that the documents were genuine (CB 196).
The delegate found that the applicant was not owed protection under s.36(2)(a) or s.36(2)(aa) of the Act (CB 196 and CB 197).
The Tribunal
The application for review was received by the Tribunal on 8 February 2016 (CB 200–CB 206 and CB 228–CB 229). The applicant appointed a migration agent to assist him (CB 231–CB 232). The applicant was invited to, and attended, a hearing before the Tribunal (CB 238–CB 247 and CB 264–CB 266). His agent did not appear at the Tribunal hearing ([5] at CB 272). The hearing invitation advised the applicant that he could provide written submissions to the Tribunal outlining his claims by 2 July 2019 (CB 239). The applicant provided no such submissions.
On 26 July 2019, the Tribunal affirmed the delegate’s decision not to grant the applicant the visa (CB 268–CB 281).
The Tribunal was satisfied that the applicant has a “…genuine political opinion that is supportive of the Bangladesh Nationalist Party and its allied groups.” ([21] at CB 275). However, the Tribunal did not accept that the applicant had ever been harmed because of his political opinion ([24] at CB 275).
Under the heading “Reason for not returning to Bangladesh”, the Tribunal noted that the applicant had stated that when he departed Bangladesh he did not intend to remain in Australia. On the applicant’s evidence the Awami League were in power at the time of his departure. The applicant stated that he wanted to wait in Australia until the government changed in Bangladesh.
The Tribunal put to the applicant that “…it would clearly be the applicant’s intention to remain in Australia until there was a change of government in Bangladesh and that intention would have been present at the time of the applicant’s departure.” ([25] at CB 276). The applicant’s response was that it was the increase in the number of charges against him which caused him to not want to return to Bangladesh.
The Tribunal found that the applicant’s claim concerning the 2011 incident involving being shot with a rubber bullet by police was not credible ([29]–[30] at CB 276–CB 277).
The Tribunal noted that the applicant was able to depart Bangladesh despite the fact that there “…was a current criminal case against” him ([33] at CB 277). Country information indicated that it would be difficult for the applicant to leave Bangladesh in these circumstances, this was put to the applicant ([33] at CB 277–CB 278). The Tribunal concluded ([33] at CB 278):
“…The warrant notes that the applicant had absconded. The Tribunal struggles to accept that [the] applicant, who was targeted by the AL [Awami League] because of his political opinion, would find himself in a position where he would be able to successfully depart Bangladesh with authorities unaware that that he had an outstanding criminal case and specifically a warrant out for his arrest.”
[Emphasis Added.]
The Tribunal noted the applicant’s delay in not applying for his visa until 29 July 2015, some 11 months after arriving in Australia on 10 August 2014 (CB 278). The application for the visa was received by the department on 30 July 2015, 11 days before the cessation of the validity of his visa (item 63 at CB 21).
The Tribunal took into account a 2017 report of the “UK Home Office Fact-Finding Mission for Bangladesh” which “stated that according to [the] British High Commission, forget [sic: forged] and fraudulently obtained documentation was easily obtainable in Bangladesh.” ([36] at CB 279).
The Tribunal was satisfied that the documentation the applicant produced as evidence of his criminal proceedings in Bangladesh (as set out above at [8]) was fabricated, stating the following ([38] at CB 279):
“…the Tribunal considers the late provision of the documentation, and the fact that the applicant has provided inconsistent evidence about when he actually possessed those documents, together with the other concerns that the Tribunal has expressed, the Tribunal is satisfied that the documents are fabricated and were generated in an attempt to lend credibility to the applicant’s claims. The Tribunal does not accept that the applicant is subject to three criminal proceedings in Bangladesh.”
[Emphasis Added.]
Before the Tribunal, the applicant claimed that after he left Bangladesh “…his brother was jailed for two days because the applicant was against the country.” ([39] at CB 279). The Tribunal “viewed this claim with suspicion”, and was “not satisfied that the applicant’s brother was targeted and jailed on account of the applicant.” ([40] at CB 280).
On the day of the Tribunal hearing on 9 July 2019 the applicant provided the Tribunal with 15 photographs of him at BNP associated events in Australia. The Tribunal noted that the applicant had provided these photographs to his migration agent on “10 July 2017”, however they were not provided to the Tribunal prior to the hearing ([20] at CB 275; see also CB 248–CB 263).
Under the heading “Photographs of the applicant in Australia / Activity in Australia” the Tribunal considered the photographs of the applicant at BNP associated events in Australia ([41]–[42] at CB 280). The Tribunal noted that it asked the applicant ([41] at CB 280):
“…whether he was a member of the BNP in Australia, or whether he just attended events. The applicant stated that in Australia, the BNP is divided into factions and that he attends programmes, but was confused about which group would be the most active, so that is why he was not a member in Australia.”
The Tribunal noted that “[t]he applicant did not assert that his attendance at programmes in Australia, or indeed the two events in Rockdale in 2016 [which the pictures depicted] provided a basis for a claim for protection.” ([42] at CB 280). The Tribunal understood from the applicant’s evidence that the photographs were submitted as evidence of the applicant’s support for the BNP ([42] at CB 280).
The Tribunal accepted that the applicant supports the BNP, and was involved with the organisation in Bangladesh ([42] at CB 280). The Tribunal noted that the applicant was not a high profile member of the BNP and had not held a leadership position or have membership of the Australian branch.
The Tribunal was not satisfied that the applicant had been harmed in the past in Bangladesh due to his political opinion or that he “is the subject of criminal proceedings”. The Tribunal also did not accept that the applicant would be harmed in the future for his political opinion if he returned to Bangladesh ([42] at CB 280).
The Tribunal was not satisfied that the applicant was owed protection under s.36(2)(a) or s.36(2)(aa) of the Act ([44]–[45] at CB 281). The Tribunal affirmed the delegate’s decision not to grant the applicant the visa ([47] at CB 281).
Before the Court
Orders were made by a Registrar of this Court giving the applicant the opportunity to file an amended application by 14 November 2019. Subsequently, further orders were made by the Court giving both parties the opportunity to file written submissions 14 days and 7 days respectively, before the hearing.
On 16 June 2020, the applicant filed written submissions, and an amended application. Before the Court, the applicant sought leave to rely on his amended application in relation to the three proposed additional grounds in that document and ground 2 from the originating application, with particulars.
Application to the Court
The applicant’s proposed amended application to the Court is in the following terms:
“…
Ground 2
The AAT denied procedural fairness to the applicant.
Particulars
Tribunal failed to comply with s424(A) or s 424 (AA) of the Act in respect of information that it considered would be there reason or part of the reason for affirming the decision under review.
The Tribunal referred UK Home office Fact finding mission for Bangladesh 2017 report but failed to put information in the report under section 424 (A) or Section 424 (AA) of the Migration Act 1958. It is noted that the above report is not publicly available document but was in the possession of the Tribunal.
Ground 3
The Tribunal made an illogical conclusion or conclusion without evidence.
Particulars
The applicant stated that he had no intention to stay in Australia but did not say that he would return to Bangladesh. The Tribunal either misunderstood or assumed that the applicant would return to Bangladesh and questioned applicant’s credibility. It is respectfully submitted that there is no evidence to suggest that the applicant mentioned that he would return to Bangladesh. On the other hand the applicant merely said that he had no intention to remain in Australia.
Ground 4
The Tribunal failed to consider applicant’s claims and evidence under the Complementary Protection.
Particulars
The applicant has provided photos related to his political activities in Australia and through that at least he passively argued that he would be targeted due to his involvement in Australia. The Tribunal made a finding in relation his association with the BNP in Bangladesh but failed to make any finding on his association with the BNP in Australia and the feared harm he would face in Bangladesh as a result of his involvement in Australia.
Ground 5
The Tribunal failed to consider relevant considerations or failed to engage in genuine, realistic consideration of claims.
Particulars
a. The applicant claimed that he has pending warrant.
b. The Tribunal failed to consider applicant’s circumstance as a person who has absconded from Court”.
[Underlining Removed.]
At the Hearing Before the Court
At the hearing the applicant appeared in person. He was assisted by an interpreter in the Bangla language.
It was clear that the applicant had little, if no, knowledge, of the assertions of legal error in the sole remaining ground (ground 2) of his application, the grounds of the proposed amended application, or the written submissions he had filed.
He explained that the proposed grounds had been drafted by a person in the “community” who had been a lawyer in Bangladesh, but was not a lawyer in Australia. The applicant stated that he “believed” in everything that had been written.
The applicant confirmed that, as indicated in the proposed amended application, he did not press ground 1, but sought to rely on grounds 2-5.
The Minister agreed that ground 2 of the proposed amended application provided further particulars to what had been ground 2 of the originating application, and that the applicant did not require leave to proceed on that ground. However, the Minister opposed the leave being granted in relation to proposed grounds 3–5 on the basis that they lacked requisite merit.
Consideration
Ground 2 of the application asserts a failure by the Tribunal to comply with s.424A and s.424AA of the Act. The particulars and submissions explain that the Tribunal referred to a UK Home Office report of 2017 which should have been put to the applicant for comment, particularly as it was used by the Tribunal to seriously “undermined” the applicant’s credibility.
As set out above, the applicant had claimed that he was the subject of three arrest warrants in Bangladesh. He provided certain court documents in support of this claim.
As part of its consideration in relation to these documents the Tribunal did have regard, in part, to country information about the prevalence of fraudulent documents from Bangladesh, and in particular had regard to the UK Home Office report of 2017 ([36] at CB 279).
Section 424A(1) of the Act obliges the Tribunal to give to an applicant, in the way it considers appropriate, for comment or response, information which it considers would be the reason, or a part of the reason, for affirming the delegate’s decision.
However s.424A(3)(a) of the Act provides that:
“(3) This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member”.
The information on which the Tribunal relied was not information specifically about the applicant and was information about a class of persons of which the applicant was a member. The information therefore is caught by s.424A(3)(a) of the Act. In the circumstances, the obligation in s.424A(1) of the Act was not enlivened. (SZANH v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1280; VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 82 and QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92).
Section 424AA of the Act is a mechanism by which the Tribunal may elect to discharge the obligation in s.424A(1) of the Act orally at a hearing, instead of in writing (SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46 at [89]). Given that the obligation in s.424A(1) of the Act was not enlivened, no breach of s.424AA of the Act (which in any event was not utilised in this context) can reveal jurisdictional error in the Tribunal’s decision.
Ground 2 therefore is not made out.
For the remainder of the grounds of the proposed amended application, the applicant requires leave to proceed by way of those grounds.
Given the discretionary nature of the power to grant such leave appropriate caution must be exercised. There is no exhaustive list of factors that the Court must take into account, other than acting reasonably in the circumstances presented.
In the current case, the Minister does not claim prejudice (save as to costs) if the leave were to be granted. However, relevant factors for consideration in the circumstances presented are whether the applicant has provided a satisfactory explanation for the delay in bringing forward these grounds now, and whether any of the grounds have such merit as to argue for, or warrant, the leave to be granted in the interests of justice.
The applicant has provided no evidence, or for that matter explanation by way of submission, for the late presentation of these grounds. In any event, I agree with the Minister, for the reasons that follow, that leave should be refused because the proposed grounds lack requisite merit. That is, the proposed grounds do not raise an arguable case for the relief sought by the applicant.
Proposed ground 3 asserts that the Tribunal “made an illogical conclusion” or a “conclusion without evidence” regarding the applicant’s intention to remain in Australia.
The applicant submits that while he told the Tribunal he had no intention of remaining in Australia, he did not say that he would return to Bangladesh. The illogical “conclusion”, or finding, is said to be that the Tribunal assumed that the applicant would return to Bangladesh, when there was no evidence that the applicant said he would do so.
In short, the illogicality is said to arise because the Tribunal assumed he would return to Bangladesh when the applicant gave no evidence to that effect.
It is the case that legal reasonableness, including making a rational and logical decision, is an essential factor in lawful decision-making (Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 (“SZVFW”) at [4], [80], [89]; Minister for Immigration and Citizenship v Li [2013] HCA 18 (“Li”) at [26], [29], [63], [88] and Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11 at [4], [53]).
In the current case, the allegation is that in the absence of evidence the Tribunal made a finding of fact that the applicant would return to Bangladesh.
Neither the ground nor the applicant’s submissions identify the precise location of the expression of the impugned finding in the Tribunal’s decision record.
However, at [26] (CB 276) the Tribunal did refer to the applicant’s claim that he did not intend to remain in Australia. Paragraph 26 is to be properly understood in the context of [25]:
“25. The applicant told the Tribunal that when he departed Bangladesh, he did not have an intention to remain in Australia. He stated that he wanted to bide his time in Australia while he was waiting for the government in Bangladesh to change. Noting that the applicant arrived in Australia in 2014, the Tribunal asked the applicant what political party was in charge when he departed Bangladesh. He confirmed that the Awami League was in power. The Tribunal queried how the applicant could say that it was not his intention to remain in Australia when the Awami League was in power at the time of his departure. To the Tribunal’s way of thinking, it would clearly be the applicant’s intention to remain in Australia until there was a change of government in Bangladesh and that intention would have been present at the time of the applicant’s departure. The applicant did not directly respond to the question, but stated that when he left Bangladesh, there was only one case filed against him. He then had two more cases filed against him after his arrival in Australia. When he discovered that there were three cases, he decided that he could not return to Bangladesh. He told the Tribunal that his family told him about those cases. They had discouraged him from returning. The applicant told the Tribunal he believed that if he returned to Bangladesh, he would be put in jail.
26. The Tribunal is not persuaded by the applicant’s evidence about this point. The applicant claimed that he had no intention to remain in Australia but wanted to remain here while waiting for the government to change from the Awami League to the Bangladesh Nationalist Party. The Tribunal struggled with the logic of the applicant’s claim to have no intention to remain in Australia at the time of his arrival here. In the Tribunal’s view, the applicant was clearly conscious that the Tribunal would be concerned about the applicant delaying his application for a protection visa until 11 months after his arrival in Australia. The applicant has crafted a narrative to try and account for this delay.”
While a finding of fact not supported by evidence may reveal unreasonableness, including illogicality, to succeed the applicant must show that the illogicality was “extreme” (ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 at [47]). The relevant test is stringent (Li at [108], SZVFW at [11]).
Given the Tribunal’s reasoning at [25]–[26] (the only part of the decision record that appears even remotely relevant to the applicant’s ground) no illogicality is revealed in the circumstances, let alone “extreme” illogicality.
As is clear, the Tribunal was concerned with the applicant’s explanation as to why he did not return to Bangladesh (see generally [25]–[28]). As the Minister submits there is a clear statutory basis to the relevance of this question to the disposition of the application for review.
The applicant’s entire basis for the application for a protection visa to remain in Australia was that he feared harm if he were to return to Bangladesh and therefore could not return there and wanted protection in Australia. See for example at CB 36.5, a part of the applicant’s statement to fear harm which accompanied his protection visa application:
“…I know and believe that if I return to Bangladesh then my life will be endangered. I fear for my life in Bangladesh under the current regime.”
The relevant statutory regime for the grant of the visa requires satisfaction of one of the criteria set out at s.36(2) of the Act. That is, with reference to the current circumstances, that the Minister is satisfied that the applicant is either a “refugee”, or that there is a real risk of significant harm if the applicant is “removed from Australia to a receiving country”.
The term “refugee” is defined in the Act. For current purposes s.5H(1)(a) of the Act states:
“(1) For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person:
(a) in a case where the person has a nationality—is outside the country of his or her nationality and, owing to a well‑founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country”.
The term “persecution” is defined at s.5J of the Act. For current purposes s.5J(1) states:
“(1) For the purposes of the application of this Act and the regulations to a particular person, the person has a well‑founded fear of persecution if:
(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c) the real chance of persecution relates to all areas of a receiving country.”
The term “receiving country” is defined at s.5 of the Act in the following terms:
“receiving country, in relation to a non‑citizen, means:
(a) a country of which the non‑citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non‑citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non‑citizen to the country.”
There was no dispute before the Tribunal that the applicant claimed to be a citizen of Bangladesh (CB 12 – items 18 and 19). The applicant’s claims to protection, the reasons he said he wanted protection in Australia, were all because of incidents, events and circumstances in Bangladesh or in relation to Bangladesh. In short, the claim for protection in Australia was predicated on the basis of his claimed fear of harm if he were to return to Bangladesh.
The applicant’s ground asserts that he did not tell the Tribunal that he would return to Bangladesh. Whoever drafted the applicant’s ground and submissions did not understand, or chose to ignore, that the relevant statutory scheme meant that even if this is the case, then it is, as the Minister submits, irrelevant to the task statutorily set for the Tribunal.
The relevant statutory scheme is based on the proposition that citizens of another country who make claims for protection in Australia do so on the basis that they cannot return to their country of nationality (the receiving country) without risking serious, or significant harm, or have no other country to which they can go.
Of course the applicant, having applied for protection on the basis of a claimed fear of harm if he were to return to Bangladesh, would not want to say he wanted to return to his country of nationality. But the statutory task set for the Tribunal is to consider whether there was a real risk of harm “if” he were to return.
In the circumstances, the Tribunal was statutorily compelled to consider the application for the visa in this light. There is no legal error in the Tribunal having done so. There is no merit in the applicant’s proposed ground.
The Minister also submitted that there is a separate basis for finding that the applicant’s ground lacks merit.
There is no evidence before the Court by way of transcript as to what occurred at the hearing with the Tribunal. The only available evidence are the references to what occurred as set out in the Tribunal’s decision record.
On this evidence the applicant did tell the Tribunal at the hearing that when he departed Bangladesh he did not have an intention to remain in Australia (see [25] at CB 276).
The applicant’s ground and submissions now assert that he did not say he would return to Bangladesh. However, this is contrary to, what on the evidence, he told the Tribunal. As set out at [25], he told the Tribunal “…that he wanted to bide his time in Australia while he was waiting for the government in Bangladesh to change…” (see at [25], and see [26]):
“…The applicant claimed that he had no intention to remain in Australia but wanted to remain here while waiting for the government to change from the Awami League to the Bangladesh Nationalist Party.”
There is a clear and reasonable inference available to be drawn from this that it was the applicant’s evidence that given he feared harm from the Awami League he would return to Bangladesh (the country of his nationality) when the government changed to the BNP.
In any event, it is not necessary to draw on any such inference. The applicant’s evidence was that he did not intend to stay in Australia permanently when he arrived here. In all the circumstances, it was reasonably open for the Tribunal to find that this was put by the applicant to explain the 11 month delay in applying for protection after arrival, and that “…[t]he applicant has crafted a narrative to try and account for this delay.” ([26] at CB 276).
In the circumstances it was reasonable, and not illogical, for the Tribunal to reason and find that it was not persuaded by the applicant’s evidence and explanation. In the circumstances, it was reasonably open to the Tribunal to find that it “…struggled with the logic of the applicant’s claim…” ([26]; see also [27]–[28] at CB 276).
The applicant’s proposed ground 3 lacks requisite merit.
Proposed ground 4 asserts that the Tribunal failed to consider complementary protection pursuant to s.36(2)(aa) of the Act. The particulars and submissions assert that the Tribunal made a finding in relation to his association with the BNP in Bangladesh, but did not make a finding on his association with the BNP in Australia, and that he would face harm in Bangladesh because of this.
As set out above, the applicant provided photographs of himself at what were said to be political events in Australia. Contrary to the assertion in the proposed ground and submissions, the Tribunal expressly considered these photographs (see [41]–[42] at CB 280 under the heading of: “Photographs of the applicant in Australia/Activity in Australia”).
I note, again, that there is no evidence before the Court by way of transcript as to what occurred at the Tribunal hearing. The only evidence is the Tribunal’s relevant references in its decision record.
From that account, the Tribunal asked the applicant about the photographs and the connection with his claim to fear harm. The applicant told the Tribunal that he was not a member of the BNP in Australia because he was confused about which of the many factions was the most active ([41] at CB 280).
At the hearing, the applicant is reported as having made no claim that his attendance at “programmes in Australia”, or his attendance at the two events at which the photographs were taken, provided any basis for a claim for protection.
In that context, it was reasonably open to the Tribunal to have proceeded on the basis that the photographs were provided by the applicant to demonstrate that he was genuine in his support of the BNP. The Tribunal accepted this.
There is no factual basis for the assertion in the ground that the Tribunal failed to consider the photographs.
In relation to complementary protection, the Tribunal, properly, considered the applicant’s claims to fear harm in his evidence as to past events in Bangladesh and in Australia.
On the evidence, the Tribunal, on a number of occasions during the hearing, made clear to the applicant its concerns about his claims that he had been harmed in the past because of his political opinion, or that he was the subject of criminal proceedings.
The Tribunal’s various findings that it could not be satisfied that the applicant could suffer harm for these reasons in Bangladesh were reasonably open to the Tribunal for the cogent reasons it gave and were probative of the material before it.
These findings informed its conclusion ([45] at CB 281) that it was not satisfied that the applicant met the criterion relating to complementary protection at s.36(2)(aa) of the Act. There is nothing in the evidence before the Court to indicate that the Tribunal misunderstood or misapplied this provision of the Act. Again there is no requisite merit in this proposed ground to warrant the grant of leave which the applicant seeks.
Proposed ground 5 asserts (referred to in submissions as a “second” ground 4) that the Tribunal failed to consider a relevant consideration or failed to engage in a genuine and realistic consideration of his claims.
The particulars, and the submissions, appear to seek to explain this with reference to a “pending warrant” and that the Tribunal also failed to consider that the applicant is a person who “absconded from Court”.
The applicant’s ground lacks requisite merit. The Tribunal expressly, and squarely, considered this claim under the heading of “Documentation in support of three criminal cases” ([35] at CB 278–[38] at CB 279).
The Tribunal found that these documents were fabricated and “…were generated in an attempt to lend credibility to the applicant’s claims” ([38] at CB 279). The Tribunal’s finding, and the findings that informed it, were all reasonably open on what was before it. Contrary to the assertion now, the Tribunal did give consideration to this claim, it did engage with the claim in an appropriate fashion. How whoever drafted the applicant’s ground could seriously raise this complaint in light of what is plainly and expressly set out in the Tribunal’s decision record, remains unexplained.
The Tribunal did not fail to consider the claim. The applicant’s ground does not rise above a request for impermissible merits review.
For the sake of completeness, I note that the applicant’s submissions have failed to address what relevant consideration the Tribunal was statutorily bound to consider and did not do so.
Again it appears what is said to be the “relevant considerations” that the Tribunal failed to consider, were the applicant’s claims to fear harm in Bangladesh. As set out above, the Tribunal did consider the applicant’s claims. The fact that it was not persuaded by these claims and the evidence in support, does not provide merit to the applicant’s ground. The proposed ground is no more than a disagreement with the Tribunal’s findings which were all reasonably open to the Tribunal on what was before it, and for which it gave cogent reasons.
Conclusion
The sole remaining ground of the originating application is not made out. There is no merit in the grounds of the proposed amended application. In the circumstances it is appropriate to dismiss the application and to refuse leave for the amendment. I will make the appropriate orders.
I certify that the preceding ninety-four (94) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Associate:
Date: 20 July 2020
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