FEDERAL CIRCUIT COURT OF AUSTRALIA
| DLE16 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1392 |
| Catchwords: MIGRATION – Review of decision by Administrative Appeals Tribunal – whether Administrative Appeals Tribunal’s decision affected by jurisdictional error – whether the Administrative Appeals Tribunal’s findings were open to it – whether the Administrative Appeals Tribunal had regard to all relevant material – whether the Administrative Appeals Tribunal approached its task with bias – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 45AA, 91R, 424AA, 438, 474 |
| Applicant: | DLE16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3162 of 2016 |
| Judgment of: | Judge Emmett |
| Hearing date: | 29 May 2018 |
| Date of Last Submission: | 29 May 2018 |
| Delivered at: | Sydney |
| Delivered on: | 29 May 2018 |
REPRESENTATION
| The Applicant appeared in person, with the assistance of an interpreter in the Bengali language |
| Solicitors for the Respondents: | Ms Jennifer Strugnell (Minter Ellison) |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3162 of 2016
| DLE16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
This is an for judicial review of a decision of the Administrative Appeals Tribunal (“the Tribunal”) dated 31 October 2016, dismissing an application for review by the Tribunal of a decision of a delegate of the first respondent (“the Delegate”) made 29 April refusing the applicant a Temporary Protection (Class XD) visa.
The applicant is a citizen of Bangladesh and of Muslim faith, who fears harm from the Awami League (“AL”) in Bangladesh on account of his involvement with and support of the Bangladesh Nationalist Party (“BNP”).
The factual background the applicant’s claims and…
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Details
- Case
- [2018] FCCA 1392
- Decision Date
CaseChat Overview and Summary
The applicant, a citizen of Bangladesh, arrived in Australia as an irregular maritime arrival and applied for a Protection (Class XA) visa, which was treated as an application for a Temporary Protection Visa (TPV). A delegate of the Minister refused to grant the visa, and the applicant sought review before the Administrative Appeals Tribunal (the Tribunal). The Tribunal affirmed the delegate's decision, finding the applicant was not a credible witness and rejecting his claims of fearing harm in Bangladesh due to his membership and support for the Bangladesh Nationalist Party (BNP) and opposition to the Awami League (AL). The applicant then sought judicial review of the Tribunal's decision in the Federal Court.
The legal issues before Emmett J were whether the Tribunal had erred in its assessment of the applicant's claims and its adverse credibility findings. Specifically, the court was required to consider whether the Tribunal's findings that the applicant's evidence was vague, inconsistent, and implausible, leading to the rejection of his claims of past persecution and fear of future harm, were legally sound. This involved examining whether the Tribunal properly considered the applicant's alleged injuries, his involvement with the BNP, and the cumulative effect of its credibility concerns.
Emmett J found that the Tribunal had made comprehensive adverse credibility findings based on the applicant's inconsistent and vague evidence regarding his alleged injuries, his political involvement, and the events he claimed to have experienced. The Tribunal's reasoning, as set out in its decision, demonstrated a thorough assessment of the applicant's testimony, including his implausible claims about voting at a young age and the lack of supporting medical evidence for his alleged memory loss. The Tribunal correctly applied the principles of assessing credibility, considering the evidence both individually and cumulatively, and concluded that the applicant had not established a real chance of meeting the criteria for a protection visa. The court therefore dismissed the application for judicial review.
The legal issues before Emmett J were whether the Tribunal had erred in its assessment of the applicant's claims and its adverse credibility findings. Specifically, the court was required to consider whether the Tribunal's findings that the applicant's evidence was vague, inconsistent, and implausible, leading to the rejection of his claims of past persecution and fear of future harm, were legally sound. This involved examining whether the Tribunal properly considered the applicant's alleged injuries, his involvement with the BNP, and the cumulative effect of its credibility concerns.
Emmett J found that the Tribunal had made comprehensive adverse credibility findings based on the applicant's inconsistent and vague evidence regarding his alleged injuries, his political involvement, and the events he claimed to have experienced. The Tribunal's reasoning, as set out in its decision, demonstrated a thorough assessment of the applicant's testimony, including his implausible claims about voting at a young age and the lack of supporting medical evidence for his alleged memory loss. The Tribunal correctly applied the principles of assessing credibility, considering the evidence both individually and cumulatively, and concluded that the applicant had not established a real chance of meeting the criteria for a protection visa. The court therefore dismissed the application for judicial review.
Orders
Orders of the court
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Background
Background to the litigation
The factual background the applicant’s claims and the Tribunal decision are accurately set out in the written submissions of the first respondent, as follows:“B FACTUAL BACKGROUND4. The applicant is a citizen of Bangladesh, who arrived in Australia as an irregular maritime arrival on 6 May 2013. The applicant applied for a Protection (Class XA) visa on 2 September 2013 (court book (CB) 20–45). However, by operation of section 45AA of the Act and regulation 2.08F of the Migration Regulations 1994 (Cth) (the Regulations), his application was taken to be, and to have always been, an application for a TPV.5. On 29 April 2015, a delegate of the Minister for Immigration and Border Protection (the delegate) refused to grant the applicant a TPV (CB 100–114). 6. The applicant sought review of the delegate's decision before the Tribunal by application dated 11 May 2015 (CB 116–122). 7. The applicant appeared at a hearing before the Tribunal on 7 October 2016 (CB 149–151).8. The Tribunal made its decision on 31 October 2016, affirming the decision not to grant the applicant a TPV (CB 397–416).C APPLICANT’S CLAIMS9. The applicant claimed to fear harm in Bangladesh by members or supporters of the Awami League (AL) for reason of his membership of and support for the Bangladesh Nationalist Party (BNP). In support of this claim, the applicant recounted the following events (CB 70–72):(a) he was from Kulia village, Panisara union, Jessore district and resided there until March 2012;(b) he joined the BNP between two and a half and eight years ago (having previously voted for them in 1991 and 1996) and he held the 'number 5' position in the BNP in his village;(c) he was the 'organising secretary' and he organised the meetings;(d) there was a bomb attack at one of the meetings;(e) in 2011 or 2012 he was hit over the head with a hockey stick and his wrist broken when he was attacked by AL supporters and he has a poor memory as a result;(f) after the attack he fled to Dhaka, where he owned a grocery store for 12 months before leaving Bangladesh;(g) while in Dhaka, someone 'ran behind him' and he suspected it was an AL supporter;(h) AL supporters would find him in Dhaka because they have telephones; and(i) the applicant has attended four to seven BNP meetings since arriving in Australia.D TRIBUNAL DECISION10. The Tribunal rejected the applicant's claims on the basis of comprehensive adverse credibility findings. The Tribunal made the following key findings:(a) it was not satisfied the applicant had any injuries or medical conditions which caused memory loss or explained the deficiencies in his evidence, especially given he had not provided any medical evidence despite being allowed time to do so (CB 410–411: [65]–[66], [71]);(b) it did not accept the applicant voted in 1991 aged 8 or 1996 aged 13, because his evidence in this respect was implausible (CB 410–411: [68], [70]);(c) it found the applicant's evidence about when he first became involved in the BNP was vague and shifted over time (CB 411: [70]);(d) it found the applicant's evidence about the problems he encountered as a BNP supporter was vague and unpersuasive with respect to whether his wrist was broken or whether there had been a bomb at a meeting (CB 411: [71]);(e) it found the applicant's evidence about his involvement in the BNP lacked detail and had shifted over time such that his evidence that he was of adverse interest to AL supporters in his home area was not credible (CB 412: [72]–[73]);(f) it found the applicant's evidence about why and how he joined the BNP was inconsistent and unpersuasive (CB 412–413: [74]);(g) it found the applicant's claims were fabricated to obtain a protection visa and the poor quality of his evidence was not due to memory issues, but was due to 'struggling to describe experiences that he never actually had' (CB 413: [75]);(h) having regard to its cumulative concerns about the applicant's credibility, the Tribunal found the applicant was not a credible witness and rejected the entirely of his claims about his past experiences in Bangladesh (CB 413–414: [76]–[77]); (i) while the Tribunal was prepared to accept the applicant may have attended BNP meetings in Australia, it considered he did so for 'the sole purpose of strengthening his protection visa claim' and disregarded his conduct under section 91R3 of the Act (CB 414–415: [79]–[80]); and (j) it accepted that the applicant would return to Bangladesh as a failed asylum seeker, but having regard to subsection 91R(3) of the Act, and on the basis of country information, it did not accept that the applicant would face harm because of his profile as a failed asylum seeker or because of his limited involvement with the BNP in Australia (CB 415–416: [81], [82]).11. For these reasons, and having considered the applicant's claims individually and cumulatively, the Tribunal was not satisfied that there was a real chance the applicant met the refugee criterion (CB 415–416: [82], [84]). For the same reasons, the Tribunal was not satisfied the applicant met the complementary protection criterion (CB 415–416: [83], [85]).” (Emphasis in original)
Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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