DTJ16 v Minister for Immigration

[2017] FCCA 2049

FEDERAL CIRCUIT COURT OF AUSTRALIA

DTJ16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2049

Catchwords:
MIGRATION – Protection Visa – whether tribunal’s decision affected by jurisdictional error – where no error established in tribunal’s decision – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Applicant: DTJ16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 1136 of 2016

Judgment of: Judge Vasta

Hearing date: 21 August 2017

Date of Last Submission: 21 August 2017

Delivered at: Brisbane

Delivered on: 21 August 2017

REPRESENTATION

The Applicant appearing on their own behalf

Solicitors for the Respondents: SPARKE HELMORE

ORDERS

1. That the Application filed 8 December 2016 be dismissed.

2. That the Applicant pay the Respondents costs of and incidental to these proceedings fixed in the sum of $5,800.00 (inclusive of GST).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 1136 of 2016

DTJ16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore)

1. By application filed on 8 December 2016 the Applicant, DTJ16, has asked this Court to review the decision of the Administrative Appeals Tribunal (“the AAT”) that was given on 7 November 2016.  That decision, of itself, affirmed a previous decision not to grant the Applicant a protection visa. 

2. The circumstances, in short compass, are these. The Applicant is from the Comilla district in Bangladesh. He left Bangladesh in April 2013 by boat without any authorisation and arrived in Australia on 6 May 2013.

3. He applied for a protection visa on 2 September 2014 and was interviewed by a delegate of the Minister for Immigration on 24 September 2014.  On 31 October 2014, the delegate refused the application and the Applicant then made his application to the Administrative Appeals Tribunal (“the Tribunal”).  He appeared before that Tribunal on 19 September 2016 and, as I’ve said, on 7 November the Tribunal affirmed the decision of the delegate.

4. The Applicant is about 32 years old and had lived in the Comilla district for most of his life.  He identifies as an ethnic Bengali and a Sunni Muslim.  He is unmarried.  His parents live in Comilla.  He said to the Minister, when he first arrived in this country, that his father was a retired imam, but he changed that in his later claims before the Tribunal that the father was now disabled following an attack and, therefore, unable to perform services as an imam. 

5. The Applicant said that his brother is married and originally had said that his brother lived in the same village but then claimed, at the Tribunal hearing, that his brother lives in another part of the Comilla district and is working in the garment sector.

6. The Applicant said that he fears harm if he returns to Bangladesh because of his, and his family’s, association with Jamaat-e-Islami, (“JI”), and he fears that members of the ruling Awami League (“AL”) will seriously harm him or kill him if he returns to Bangladesh.  He gave evidence before the Tribunal to the effect that the AL had been trying to recruit him for some time. 

7. He said that the AL was not so much interested in him but were hoping that, by having him turn to the AL, they would, in effect, have the support of the father who, being an imam in the village, would have great sway over the rest of the population.

8. He claims that despite all of the pressure to join, he had refused to join.  He says that this pressure, which started in 2007, kept continuing and is a reason why he fears going back to Bangladesh.  He said that, in 2013, that men came to the shop that he was running and had, in effect, threatened him, or extorted him to pay a large sum of money. 

9. When he refused, he knew that he would be beaten and he fled the village. The shop that he was running was ransacked and vandalised.  He said that he kept running because of this and didn’t ever come back and he says this is because of his association with JI.

10. When he first came to Australia he told the authorities that he was a supporter of JI but that he was not particularly involved.  He certainly didn’t know who the local candidate was other than he thought it was the wife of the last BNP candidate for his particular area. 

11. He said that he had not really been involved in JI other than that JI was the political party that he preferred. 

12. He changed his evidence to this extent, that he said that he did actually attend demonstrations and rallies for JI. In particular, he conceded that despite all of this pressure from AL to join them from 2007 to 2013, nothing had occurred and he was able to run his shop in the village without really any problem.

13. As to why it was that all of a sudden he was targeted out of the blue, he said that it was because he and his father had attended a JI demonstration in the weeks leading up to this attack.  This was, in effect, an act of revenge. 

14. He said that since he had come to Australia his father had been attacked because these same people returned to the shop looking for the Applicant and, when the father could not produce the Applicant, he was beaten to the point where he is now permanently disabled.

15. The story about the extortion demands and threats of violence was also somewhat inconsistent and the Tribunal went through this. The Tribunal questioned as to why the AL would target him and not his brother. The Tribunal also questioned if the aim of getting to the Applicant was really to get to his father, why they would then beat the father in this way.

16. None of what it was that the Applicant was saying made terribly much sense.  At paragraph 34 of their reasons, the Tribunal said:

    “The Tribunal takes into account that the applicant has consistently claimed that he left Bangladesh due to extortion demands and accompanying death threats made by AL thugs, who targeted him because of his affiliation with JI, Country information support this. However, the Tribunal has significant concerns about the seriousness of these threats and whether the applicant left Bangladesh in response to an imminent threat:

    For the reasons given above, the Tribunal accepts that the applicant and his family favour JI, and that his father was an imam. However, it does not accept that the applicant’s involvement with JI extended beyond having a general preference for the party, and occasionally attending religious or political events with his father.

    The applicant operated the grocery store from the time he left school until early 2013. First, the survival of the business over this period suggests that he and his father had some kind of accommodation with the local power brokers or strongmen, and casts doubt on his claim ‘never’ to have paid any bribes or extortion monies, Second, the applicant attributed the thugs’ sudden demand in early 2013 for Tk 150,000 and accompanying death threats to his participation in JI protests. However, this is inconsistent with earlier statements that he did not participate in any political activities, and with the Tribunals finding above.

    The Tribunal finds it difficult to accept that AL cadres would have been intent on trying to recruit the applicant, and to have targeted him because of his refusal to join them, or as a conduit to his father.

    The Tribunal found the applicant’s account of his period of hiding, his father’s ability to raise Tk 1,000,000 for his travel costs to Australia, and his (claimed) chance encounter with a man in a tea shop who suggested he could find safety in Australia to be exceedingly vague. Furthermore, his claim that his father raised at least some of the money by mortgaging land raises question about both the timing of the applicant’s departure and whether the family is under the intense security and pressure (financial and otherwise) from the ruling party.

    The Tribunal found the applicant’s evidence about his father and his brother to be somewhat selective. The father’s continued stay in the village and the applicant’s unsatisfactory account of his brother’s circumstances add to the Tribunal’s concerns about the applicant’s reasons for leaving Bangladesh.”

17. The Tribunal did not accept that the Applicant’s father was attacked for any reason linked with the Applicant’s protection claims.  It accepts that he may have suffered a broken leg or have limited mobility, but finds that there are reasons for that that are unrelated to this application.  The Tribunal also criticised the Applicant’s evidence regarding his brother.

18. Having made those findings, the Tribunal then looked at those findings and applied them to the Refugee Criterion, and also to the Complimentary Protection Criterion.  Given that the Tribunal did not accept the Applicant as a witness of truth, it is unsurprising that the Tribunal then refused to give the Applicant the protection visa. 

19. Having filed this matter on 8 December 2016, the Applicant appeared before me on 10 April 2017.  I noted at that time that his application had no grounds whatsoever and ordered him to provide some grounds, rather than dismissing the matter there and then.

20. On 31 July 2017, the Applicant filed submissions which had a number of grounds included in them.  The grounds are somewhat voluminous, but I will go through them seriatim.

21. Ground One was that the AAT had erred in law coming to the decision to dismiss the application because they did not consider that he was a victim of persecution.  In the ground, the applicant wrote this:

    “I think, compared to my first interview with department, and the second interview with department, is not a wise judgment.”

22. He talks about the reason why there may be some differences in those interviews, and he talks about his fear, about adding details about his involvement with the BNP in his second interview because he thought the case officer would ask him why he didn’t mention this material in the first interview.  He said that the Tribunal failed to understand the political culture of Bangladesh, and the Tribunal officer assessed his claim by using the context of Australian politics. 

23. When one looks at this ground, it really is a ground that cavils with the factual basis for the finding.  As has been said in this Court on many occasions, it is not whether the finding should have been made but whether it could have been made. 

24. Whether the Tribunal should have compared the two interviews, as they did, is not a matter that the Court can say that the Tribunal was absolutely prohibited from doing.  Whether this Court, if it had been sitting in the stead of the AAT, would have done the same thing, is not the question here.  The question here is whether or not it was permissible for the Tribunal to do so.  It certainly was within the purview of the Tribunal to do that. 

25. Therefore there is no ground in this particular claim.

26. Ground Two is that the AAT did not find there was a lack of procedural fairness in the decision of the delegate of the Minister. The ground talks about the fact that the Applicant was not accepted by the Tribunal as a credible witness and that the Tribunal used the DFAT country information.

27. The Applicant says that there are many sources of information the Applicant provided before the Tribunal, and the Tribunal did ignore that valuable information that could support the Applicant’s claim as a refugee.

28. Again, this ground is another attempt to engage the court in an impermissible merits review. The Tribunal is obligated to look at the DFAT information, and it has done so. There is no jurisdictional error in this ground.

29. Ground Three was that the AAT failed to accept that the Applicant would be imprisoned and tortured if he returned to Bangladesh.  The ground says:

    “The Tribunal officer ignores the evidence General diary about the incident and other documents. Some of the oral information was misinterpreted during the DIBP interview time. I inform the Tribunal officer regarding this matter but the Tribunal officer did not accept my claim moreover the Tribunal officer raised doubt that I am not a credible witness to claim as a refugee.”

30. I have looked at the court book and have sought confirmation from Mr Kyranis, who was appearing for the Minister.  There does not seem to be any reference to a general diary. If this document existed, the Applicant did not bring it to the attention of the Tribunal. 

31. There is also no notation by the Tribunal that the Applicant claimed that he had been misinterpreted during the interview time, and what it was that was misinterpreted, and what role that misinterpreted information then had upon the decision of the Tribunal.  There has been no clarification during the oral submissions in this hearing that would lead me to find that there was any ground in this claim either. 

32. The Applicant then made a combined ground of ground 4 and 5, saying that the AAT erred in not finding that the delegate refused his application on the ground that he would face punishment would be completely politically motivated and then that they erred in finding that the delegate erred in law amounting to jurisdictional error in finding that he does not have a genuine fear of persecution for a convention reason.

33. It seems to me that, again, this is an attempt to engage in an impermissible merits review.  The Tribunal has set out in its reasons, quite thoroughly, why it is that they have found that the criterion for the refugee declaration or complementary protection has not been met.  There has been no error in that reasoning that I have been able to see, and the Applicant has not made any claim other than he does not like the finding that has been made.  There does not seem to be in these grounds any merit whatsoever.

34. Before me today, the Applicant simply said that what he has said in these documents, and before the Tribunal, is the truth, and that after he was attacked in his shop, he left and came here to Australia.  Quite curiously, he made this statement:

    “I would not have left if I was not attacked and my father was not attacked.”

35. I tried to point out to the Applicant that his whole tale has been that his father was not attacked until after he left.  Therefore, the attack on his father was not a reason that he had left the country.  The Applicant did not explain satisfactorily why it was that he made this remark but simply kept reiterating the fact that his father was attacked. 

36. That gave me an insight into the inconsistency of the Applicant and reinforced the finding by the Tribunal that he was not a credible witness.

37. But that is a matter that I do not take into consideration in looking at whether the Tribunal has committed any jurisdictional errors.  As I have pointed out in my recitation of the facts of this matter, I cannot see that there has been any jurisdictional error. 

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date:  4 October 2017