DRQ16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FCCA 1415

FEDERAL CIRCUIT COURT OF AUSTRALIA

DRQ16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1415

File number(s):	SYG 3412 of 2016
Judgment of:	JUDGE MANOUSARIDIS
Date of judgment:	25 June 2021
Catchwords:	MIGRATION – application for remedies under s 476 of the Migration Act 1958 (Cth) (Act) – whether Tribunal failed to disaggregate the statutory formulae under s 36(2)(a) and s 36(2)(aa) of the Act – whether Tribunal denied applicant procedural fairness – application dismissed
Legislation:	Migration Act 1958 (Cth) ss 36(2)(a), 36(2)(aa), 476
Number of paragraphs:	14
Date of hearing:	11 June 2021
Place:	Sydney
The Applicant:	Appeared in person, assisted by an interpreter
Solicitor for the First Respondent:	Mr L Dennis of Minter Ellison Lawyers

ORDERS

SYG 3412 of 2016

BETWEEN:

DRQ16

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE MANOUSARIDIS
DATE OF ORDER:	25 JUNE 2021

THE COURT ORDERS THAT:

1.The application is dismissed.

2.The applicant pay the first respondent’s costs set in the amount of $5,600.

REASONS FOR JUDGMENT

INTRODUCTION

1. The applicant applies for remedies under s 476 of the Migration Act 1958 (Cth) (Act) in relation to a decision of the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant a Protection (Class XA) visa (Protection visa).

   CLAIMS FOR PROTECTION

2. The applicant, a citizen of Bangladesh, stated his clams for protection in a statement that formed part of his application for a Protection visa.[1] The applicant claimed as follows:

   (a)During his study at college from 1995 to 2000 the applicant was an active member of Jatiyo Chatra Dal, the student wing of the Bangladesh Nationalist Party (BNP). The applicant attended political meetings, processions, and demonstrations inside and outside the college. The applicant had also been a close associate of a BNP member of parliament.

   (b)As a consequence of these activities the applicant became a target of local Awami League activists, and the applicant has been facing tremendous problems from his political rivals. The applicant’s brother noticed the applicant’s circumstances and he strongly advised the applicant to leave his political activities. The applicant tried to reduce his political activities, but he could not fully distance himself from the BNP.

   (c)After two years of unemployment the applicant found work as a sales and administration officer in a computer accessories company. The applicant continued his employment with that company until 2010. In early 2010 a group of Awami league workers attacked the applicant on his way home from work resulting in his losing consciousness. The applicant was taken to a local private clinic. The applicant’s brother advised the applicant to leave his job and start a business from home so that nobody could find out the applicant’s travelling schedule.

   (d)In March 2010 the applicant resigned from his position with the computer accessories company and he began his own garments machinery business. Within a few months that business became profitable. The applicant had to cut down his BNP activities because he was busy with his work. The applicant also joined the Lions Club.

   (e)The applicant became an “eye sore” to local Awami activists. Those activists began asking the applicant for money every now and then in the name of donations, and they harassed and assaulted the applicant in the street. If the applicant was late with paying donations they accused the applicant with false charges and threatened to kidnap the applicant’s sons from school and kill the applicant in front of his wife. Between March 2010 and August 2014 the applicant was ambushed and assaulted on three different occasions on the basis that he is a BNP activist. The applicant travelled to Singapore, India, and Malaysia on a few occasions for “peace of mind”.

   (f)In early 2014 the applicant received a phone call from a person who showed interest in purchasing some garments machinery the applicant was in the business of selling. The caller arranged for the applicant to meet in a place to discuss business. The applicant went to the house the caller had invited the applicant to and found three other Awami League activists “widely known in the area as [a] very dangerous element”. The person who arranged the meeting demanded the applicant pay Taka 5 lakhs because the applicant was a BNP activist. The applicant called his brother who came the next day and secured the applicant’s release by paying the money demanded.

   (g)Since that incident the applicant had nightmares and could not concentrate on his business. The applicant decided to escape from Bangladesh. He did so when he visited Australia, to attend a conference as a member of the Lion Club of Bangladesh.

   [1] CB55-58

3. Before the Tribunal the applicant also claimed that in 2008 some men attacked the applicant’s brother while returning from work. The men assaulted the applicant’s brother, holding a gun to his head, and warning they would kill the applicant’s brother if he did not stop the applicant’s political activities.[2]

   [2] CB210 at [32]

   TRIBUNAL’S REASONS

4. The Tribunal accepted the applicant was a businessman; that he prefers the BNP; and that he may have tried to associate with the BNP’s student wing and a former BNP member of parliament, particularly when the BNP was in power from 2001 to 2006. The Tribunal found, however, that the applicant pursued these contacts mainly for the pragmatic reasons of career and business advancement; and the applicant’s interest in local politics did not give him any political profile. The Tribunal in any event found the applicant’s interest in politics petered out in around 2010 when he then immersed himself in his garments machinery business and overseas travel, and not because of the election of the Awami League government, or because of any ongoing threats, harassment, or attacks.

5. The Tribunal accepted the applicant came under pressure to pay bribes, or protection money, or some other form of corrupt transfer, and that the applicant knows or suspects that the people who have made such demands are linked with the ruling Awami League government. The Tribunal did not accept, however, that the applicant’s brother had been assaulted in 2008, or that the applicant had been assaulted from 2010 to 2014, or that there were any ongoing threats or harassment such as to constitute “persecutory harm or significant harm”.

6. On the basis of these findings, and after considering country information about politics and corruption and other criminal activity in Bangladesh, the Tribunal found the applicant does not have a well-founded fear of persecution because of political opinion and, for that reason, the applicant did not meet s 36(2)(a) of the Act. The Tribunal also concluded it was not satisfied the applicant met s 36(2)(aa) of the Act because it was not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Bangladesh, there is a real risk that he will suffer significant harm.

   GROUNDS OF APPLICATION

7. The application contains the following two grounds of application (errors in original):

   1.The RRT has failed to apply the correct test pursuant to Section 36(2)(aa) of the Migration Act 1958

   Particulars:

   In dealing with the Applicant’s claims under section 36(2)(aa) of the Migration Act 1958 (Cth), the Refugee Review Tribunal explicitly failed to disaggregate the statutory formulae under section 36(2)(a) and 36(2)(aa) of the Act.

   2.The Refuge Review Tribunal denied the Applicant’s procedural fairness.

8. Both grounds, as stated, are manifestly hopeless. As to ground 1, it is clear on the face of the Tribunal’s reasons that the Tribunal considered the applicant’s claims separately as against s 36(2)(a) and s 36(aa) of the Act; and ground 2 is an unparticularised allegation of denial of procedural fairness.

9. At the hearing I invited the applicant, who is not legally represented, to make submissions about why the Tribunal’s decision should be set aside. The applicant’s submissions were directed to his personal circumstances. The applicant said he has been in Australia for 7 years where he has been struggling just to survive; he has lost his mother; and he has been suffering because of the uncertain outcome of his application for a Protection visa. The applicant also referred to his brother and child having passed away. The applicant asked for mercy.

10. Although the applicant’s submissions merit sympathy, as I explained to him, the Court’s jurisdiction is limited to determining whether, on the grounds advanced by an applicant (or on any grounds that may be apparent from the material before the Court), the Tribunal has made a jurisdictional error. The Court does not have jurisdiction to determine whether the Tribunal was correct in affirming the delegate’s decision; and the Court does not have any power to grant a Protection visa.

11. I asked the applicant whether he believed the Tribunal was unfair to him in any way. The applicant said he could not judge. The applicant said the Tribunal could have decided his case differently had he submitted further documents to the Tribunal; but he said he was unable to obtain documents from Bangladesh because of the three deaths to which he earlier referred. The applicant said he did not think straight because of the news of those deaths. These matters do not disclose any jurisdictional error.

    DISPOSITION AND COSTS

12. The applicant has not demonstrated the Tribunal made any jurisdictional error. I propose, therefore to order that the application be dismissed

13. The Minister applied for an order for costs in the event the applicant failed, and that the Minister’s costs be set in the amount of $5,600. The applicant said it will be impossible for him to meet any costs order, and he requested that I waive the requirement that he pay the Minister’s costs.

14. Although unfortunate, an applicant’s inability to meet an order for costs is not a factor which ordinarily leads a court not to make the usual order as to costs, namely, that costs follow the event.  I am satisfied the usual order as to costs should be made, and that $5,600 reflects a fair indemnity of the costs the Minister has incurred in defending the proceeding. I will therefore also order that the applicant pay the first respondent’s costs set in the amount of $5,600.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis.

Associate:

Dated:       25 June 2021