DKV16 v Minister for Immigration

[2019] FCCA 3092

FEDERAL CIRCUIT COURT OF AUSTRALIA

DKV16 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 3092

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Protection (Class XA) visa/Temporary Protection (Class XD) visa – whether the Tribunal failed to take into account relevant considerations and took into account irrelevant considerations – whether the Tribunal raised unnecessary doubt over genuineness of the fear claimed by applicant – whether the Tribunal correctly applied the relevant law – no jurisdictional error made out – application dismissed.

Legislation:

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

Applicant: DKV16

First Respondent: MINISTER FOR IMMIGRATION , CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3146 of 2016

Judgment of: Judge Street

Hearing date: 29 October 2019

Date of Last Submission: 29 October 2019

Delivered at: Sydney

Delivered on: 29 October 2019

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents: Mr L Dennis
MinterEllison

ORDERS

1. The name of the first respondent is changed to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs” and the Court dispenses with the need for the filing of any further document in that regard.

2. The application is dismissed.

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

DATE OF ORDER: 29 October 2019

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3146 of 2016

DKV16

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 24 October 2016 affirming the decision of a delegate not to grant the applicant a Temporary Protection (Class XD) visa (“Temporary Protection visa”). 

2. The applicant was found to be a citizen of Bangladesh and his claims were assessed against that country. The applicant arrived in Australia on 28 March 2013. The applicant applied for a Protection (Class XA) visa on 16 July 2013. By letter dated 28 April 2015, a delegate informed the applicant that, by operation of s 45AA of the Act, the applicant’s visa application was taken to be, and to always have been, an application for a Temporary Protection visa.

3. The applicant claimed to fear harm from the Bangladesh authorities, the Awami League party and/or Awami League supporters because of his actual or imputed opinion as a Jamaat-e-Islami supporter, his actual or imputed political opinion as being opposed to the Awami League on account of his involvement as a committee member of the student wing of Jamaat-e-Islami, his involvement in political protests and his family’s support for Jamaat-e-Islami. The applicant also claimed to fear harm by reason of an imputed political opinion as being pro-Bangladesh National Party (“BNP”) on account of Jamaat-e-Islami’s alliance with the BNP, his membership of a particular social group of his family known as a pro‑Jamaat-e-Islami family, by reason of a land dispute with an Awami League family and a marriage dispute with another family in his village.

4. On 28 April 2015, the delegate found that the applicant failed to meet the criteria for the grant of a Temporary Protection visa. On 6 May 2015, the applicant applied to the Tribunal for review of the delegate’s decision. By letter dated 16 September 2016, the applicant was invited by the Tribunal to attend a hearing on 11 October 2016. The applicant appeared on that date, together with his migration representative and a Bengali interpreter, to give evidence and present arguments.

5. The Tribunal, in its reasons, identified the background to the application for review and set out the relevant law. The Tribunal also summarised the applicant's claims.

6. The Tribunal accepted that the applicant became a supporter of Jamaat-e-Islami and that members of his family, including his father, were supporters of Jamaat-e-Islami. The Tribunal also accepted that the applicant attended some activities organised by the student wing of Jamaat-e-Islami – Islami Chhatra Shibir – including lectures, meetings and protests. 

7. However, the Tribunal did not accept that the applicant was a formal member or committee member of Islami Chhatra Shibir or Jamaat-e-Islami. The Tribunal identified reasons in support of those adverse findings, including that the applicant did not claim he was a member or committee member of Islami Chhatra Shibir or Jamaat-e-Islami in his statutory declaration made in June 2013 which clearly stated that the applicant and his family had been active supporters of Jamaat-e-Islami. The Tribunal also referred to a letter from the local branch of Jamaat-e-Islami identifying the applicant as a supporter of the party. The Tribunal noted that the applicant’s claim to have been a committee member emerged later in the application process. The Tribunal accepted that the applicant supports the ideals of Jamaat-e-Islami but did not accept that the applicant is or has been an active member or that he has been a committee member. 

8. The Tribunal referred to the applicant's claims in relation to why he left Bangladesh and why he claimed that he was not safe in his home village or in another location in Bangladesh. The Tribunal referred to the applicant's claim in relation to the Awami League visiting his and his father's shop in about June 2012. The Tribunal referred to the different evidence the applicant provided in relation to the fertiliser business and when the applicant set up the shop. The Tribunal accepted that the applicant may have assisted his father in the business after he left school and that the applicant gradually became more responsible for the business. 

9. The Tribunal found that the applicant's evidence relating to the alleged dispute involving the Awami League and Jatiya activists to be unsatisfactory. Nonetheless, the Tribunal accepted that local activists from political parties may have come to the shop in 2012 and asked for donations on a number of occasions. The Tribunal also accepted that the applicant refused and that he may have been threatened if he did not make the requested donations. The Tribunal accepted that the applicant was a Jamaat-e-Islami supporter and may have felt intimidated by the Awami League activists and felt that he could not seek the protection of the police due to the alleged partiality of the police for the current Awami League government.   

10. The Tribunal found that the reason the shop was closed and the applicant went to another location was either because of the demand for donations which could not be sustained from the business income, or because the applicant objected to making donations to the Awami League.

11. The Tribunal referred to the shop being closed after the applicant left the village and the applicant not giving evidence that he wanted to return to the local area and operate the business. The Tribunal raised with the applicant that he could have remained in the location that he went to after the shop closed. 

12. The Tribunal did not accept that the applicant left Bangladesh because he feared harm for reasons of his family's political involvement with Jamaat-e-Islami. The Tribunal also did not accept that the applicant left because of the threats made by Awami League activists in 2012. The Tribunal referred to the applicant moving to another location and found that the applicant later chose to leave Bangladesh to improve his economic conditions rather than because he feared harm

13. The Tribunal referred to a family dispute involving the applicant’s cousin and the cousin’s bride and the applicant's fear that the bride's family would continue to target him because he had introduced the cousin and the bride to one another.

14. The Tribunal accepted that the applicant was involved in a marriage dispute involving his cousin and accepted that he moved to a different location to escape censure for his role in arranging the marriage. The Tribunal referred to the applicant's evidence that the matter was resolved in 2010, that his cousin remarried and that the family of the cousin’s first bride was compensated. In these circumstances, the Tribunal did not accept that the families of the affected parties would still seek to harm the applicant if he returned to Bangladesh.

15. The Tribunal referred to a 2004 land dispute in Bangladesh involving the applicant and his family, as well as another local family who were supporters of the Awami League.

16. The Tribunal referred to the applicant's alleged fear that the other family would take revenge on the applicant if he were to return to Bangladesh. The Tribunal did not accept that if the applicant returned to Bangladesh the members of the other family involved in the land dispute would take steps to harm the applicant. The Tribunal found that they had not done so in the time the applicant lived in the village and that there is no satisfactory evidence indicating they would do so if the applicant returned to Bangladesh now or in the reasonably foreseeable future.

17. The Tribunal summarised the submissions and the claims advanced by the applicant’s representative.

18. The Tribunal did not accept that the applicant's father was a member of the Jamaat-e-Islami but accepted that the father has supported the ideals of that party. 

19. The Tribunal referred to country information and referred to the ability of the applicant to move to Dhaka, or one of the larger Bangladeshi cities, such as Chittagong or Narayanganj, if the applicant was concerned about requests for donations or threats from the Awami League activists in his local area. The Tribunal found it would be reasonable for the applicant to relocate in all the circumstances.

20. The Tribunal referred to the considerations in relation to whether it was reasonable for the applicant to relocate and referred to the members of his family living in the area. The Tribunal found that it was reasonable for the applicant to relocate in his circumstances. The Tribunal expressly referred to the personal connections of the applicant which would make his relocation reasonable. The Tribunal also took into account country information and the applicant's profile. 

21. The Tribunal did not accept that there is a real chance that, if the applicant returns to Bangladesh, he would face harm for reasons of: his actual or imputed political opinion as being pro‑Jamaat‑e‑Islami; his actual or imputed political opinion as being opposed to the Awami League for reasons of his own or his family's involvement with and support of Jamaat-e-Islami; his imputed political opinion as being pro-Bangladesh National Party on account of Jamaat‑e‑Islami's alliance with BNP his membership of the particular social group of his family being known to be a pro‑Jamaat-e-Islami family; his membership of a particular social group of BNP and Jamaat‑e‑Islami business owners subject to extortion in rural areas; his land dispute with the Awami League family; or a marriage dispute with members of the community near his home village.

22. The Tribunal did not accept that the applicant faces a well-founded fear of persecution for a reason related to the 1951 Refugee Convention if he returns to Bangladesh now or in the reasonably foreseeable future. The Tribunal was not satisfied that there are substantial grounds for believing there is a necessary and foreseeable consequence that if the returned from Australia to Bangladesh, there is a real risk the applicant will suffer significant harm. The Tribunal found that the applicant did not meet the criteria in ss 36(2)(a) or 36(2)(aa) of the Act, and affirmed the decision under review.

Before the Court

1. These proceedings were commenced on 15 November 2016. On 23 March 2017, a Registrar of the Court made orders giving the applicant an opportunity to put on an amended application, affidavit evidence and submissions. No such documents have been filed.

2. At the commencement of the hearing, the Court explained to the applicant the nature of the hearing and the applicant confirmed that he understood the explanation given by the Court. 

3. From the bar table, the applicant maintained that he had given the relevant documentation to the Tribunal and identified his claims and that the Tribunal had not believed him. 

4. It is apparent that the Tribunal accepted a number of the applicant's claims but found that they did not give rise to a well-founded fear of persecution or a real risk that the applicant will suffer significant harm. The Tribunal provided logical and rational reasons in support of the adverse finding concerning the applicant's alleged membership of Jamaat-e-Islami, including the applicant's father's alleged membership. Those reasons of the Tribunal, as summarised above, cannot be said to be illogical, irrational or unreasonable.

5. The applicant's submissions from the bar table otherwise invited this Court to engage in merits review. This Court has no power to review the merits. Nothing said by the applicant from the bar table identified any jurisdictional error. 

The grounds

1. The grounds in the application are as follows:   

   1. The applicant claims that in making the decision, the Administrative Appeal Tribunal failed to take account relevant considerations and took into account irrelevant considerations. The AAT mistook the facts in examining the relevant facts supplied by the Applicant.

   PARTICULARS

   Subparagraph of 65(1)(a)(ii) of the Migration Act 1958 requires the decision maker in respect of the applicant’s primary application for a protection visa to make a determination as to whether criteria for the grant of the visa prescribed by the Act or the Regulations made there under were satisfied. It is expected from the AAT that it would make decision based on logically probative and relevant materials.

   The main issue in this matter is that whether the Tribunal followed procedure of hearing in Judicial manner using relevant substance (oral and written evidence in support of claim for protection visa).

   The applicant claims that his whole family members are supporters of Jamaat e Islami and he is helping the Party when he was very young. He was an active member of Student wing (Chhatra Sibir) of Jamaat e Islami Party and took part in Protests and demonstration during election campaign time and other times.

   The Tribunal asked several irrelevant questions to test the applicant whether he was genuinely active member of the party or not. At the time of hearing the applicant was nervous and confused. He did not understand many questions related with the Parliamentary Seats in the Gazipur District.  

   In the beginning he did not understand but when he realised and recognised, he gave correct answer and named the place of the Parliamentary seats of the Gazipur District from where the Applicant comes.

   The Applicant claims that he was a truthful witness and gave oral and written submission correctly. Present Government run by the Awami League party is hanging several top leaders of his Party Jamaat e Islami Party in Bangladesh in last two years.

   The Tribunal failed to hold that Department of Immigration accorded the applicant mere surface formalities (Departmental Interview) and left the decision maker free to make a completely arbitrary decision to refuse the application.

   2. The AAT raised unnecessary doubt over the genuineness of asserted fear claimed by the applicant. The applicant’s fear of prosecution is based on the reason that he was bona fide committee member of the local Jamaat e Islamic Party.

   PARTICULARS

   The Tribunal discarded all of the relevant documents forwarded by the applicant in support of the claim.

   Applicant claims that whatever he has submitted to the Tribunal in support of his claim was true and correct in his belief.

   He told the Tribunal and the Delegate that he was one who organised meetings for the Senior leaders of the Party. He said that when senior leaders called a meeting he would go around with a microphone and tell the people a meeting was going to take place. He did not recall all the things but he recalled and said the Tribunal that the last meeting he could recall took place in 2011 when Delwar Sayadee, a senior leader of Jamaat e Islami, was captured and hanged. Tribunal misconstrued the facts. The Tribunal mistook the facts.

   The Tribunal designed questions to confuse the applicant at the time of hearing.

   3. The Applicant claims that AAT’s finding of reason are confused and test for persecution is not applied according to the rules of the Act and according the Complementary Protection Provisions under s.36(2)(aa) of the Act.

   PARTICULARS

   The applicant fears of Persecution is based on his support to Jamaat e Islami Party. The Applicant told to the dangers from the Awami League Party members. He told to the Tribunal the Awami League activists came to his shop and a fight started in about 2012. The activists used sharp knife and cut his thigh and hit him on head on him. After arguments some of the activists destroyed the shop and took the products kept in shop. These activists did not like him to continue applicant’s support to the Jamaat e Islami party. The applicant claims that the Tribunal undermined the threat from the danger. The applicant claims that the Tribunal unduly adopted harsh approach in assessing the fear of harm. The Tribunal did not follow the Rules of real risk Test of Persecution and harm. The AAT failed to account all the circumstances of fear and harms in which the applicant lived in Bangladesh. The AAT failed to give real reasons for not applying the Complementary Protection Criteria under Paragraph 36(2)(aa).

Ground 1

1. In relation to ground 1, there is no relevant consideration that has been identified that the Tribunal failed to take into account. Nor has there been identified any irrelevant consideration that the Tribunal took into account. Nor has there been identified any misunderstanding of the facts or a misunderstanding of the applicant's claims or evidence. 

2. The particulars to ground 1 take issue with the procedure followed by the Tribunal. On the face of the material before the Court, the Tribunal complied with its statutory obligations in the conduct of the review. The applicant was invited to and attended a hearing and, on the face of the Tribunal's reasons and given the issues referred to, the applicant had a real and meaningful hearing before the Tribunal. 

3. There is no evidence to support the assertion of irrelevant questions. Nor is there any evidence to support the assertion that the applicant did not understand questions put to him by the Tribunal. No evidence has been adduced by the applicant in support of the alleged irrelevant questions or the alleged misunderstanding by the applicant of any questions.

4. The applicant's assertion that he gave truthful evidence in substance reflects disagreement with the adverse findings by the Tribunal. The proposition that the Tribunal’s decision was arbitrary is not supported. On the face of the Tribunal's reasons, the Tribunal gave logical and rational reasons in support of the adverse findings. No jurisdictional error is made out by ground 1.

Ground 2

1. In relation to ground 2, the applicant’s disagreement in respect of the adverse findings does not identify any jurisdictional error. It was relevant and open to the Tribunal to raise issues in respect of the applicant's claims. Further, for the reasons already given, the adverse findings by the Tribunal were open to the Tribunal on the material before the Tribunal. 

2. The applicant's assertion that his fear is well-founded and that he was a member of the local Jamaat-e-Islami party reflects a disagreement with the adverse findings and does not identify a jurisdictional error.

1. The assertion that the Tribunal discarded all relevant documents is not supported by any evidence. The Tribunal's reasons clearly identify a real and meaningful engagement with the applicant's claims and evidence, including the applicant's submissions.

2. The contention that the Tribunal misconstrued or mistook the facts and substance of the applicant’s claims reflects a disagreement with the adverse findings in relation to the applicant's alleged membership of the Jamaat-e-Islami party. No misconstruction of the applicant's claims and evidence has been identified in the Tribunal's reasons. 

3. The assertion that the Tribunal asked questions to confuse the applicant is not supported by any evidence and is not consistent with the reasons of the Tribunal, which reflect a real and meaningful hearing. The Court also takes into account that the applicant was represented by his migration agent at the hearing. No jurisdictional error is made out by ground 2.

Ground 3

1. In relation to ground 3, the applicant alleges that the reasons are confused and that the Tribunal failed to apply the correct test in relation to complementary protection. Other than disagreeing with the Tribunal's adverse findings, the particulars do not identify any illogicality or inconsistency in the Tribunal's reasons. The Court does not accept that there was any confusion in the adverse findings by the Tribunal. On the face of the material before the Court, the Tribunal correctly identified the relevant law in relation to complementary protection.

2. It was open to the Tribunal to take into account the adverse findings under the 1951 Refugee Convention in relation to the determination of the applicant's claims and evidence under the complementary protection provisions. There is no part of the Tribunal's reasons that supports the assertion that the Tribunal did not correctly apply the relevant law. The Tribunal's reasons, on their face, reflect a real and genuine consideration of the applicant's claims in respect of complementary protection. There is no failure by the Tribunal to give reasons for the adverse findings in relation to complementary protection.

3. The Tribunal expressly referred, in relation to complementary protection, to the assessment of the applicant's claims in relation to the 1951 Refugees Convention and the findings that the Tribunal had made. Further, the Tribunal's reasons in respect of complementary protection, commencing at paragraph 121 through to 125 and 127, must not be read with a keen eye for error and should be read with the Tribunal's reasons as a whole. No jurisdictional error, as alleged in the particulars to ground 3, is made out. 

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

I certify that the preceding forty-one (41) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 29 October 2019 and the parties were provided sealed copies of the Court’s orders

Associate: 

Date:  17 January 2020