DVY16 v Minister for Immigration

[2017] FCCA 874

FEDERAL CIRCUIT COURT OF AUSTRALIA

DVY16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 874

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – applicant claiming political persecution in Bangladesh – applicant not believed – whether the Tribunal relied upon incorrect information or overlooked relevant information considered – no jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), s.418

Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259

Minister for Immigration v Indatissa (2001) 64 ALD 1; [2001] FCA 181
NAHI v Minister for Immigration [2004] FCAFC 10
SZOIN v Minister for Immigration [2011] FCAFC 38
VWFW v Minister for Immigration [2006] FCAFC 29
WAGP v Minister for Immigration [2006] FCAFC 103

Applicant: DVY16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: PEG 623 of 2016

Judgment of: Judge Driver

Hearing date: 23 March 2017

Date of Last Submission: 20 April 2017

Delivered at: Sydney via videolink to Perth

Delivered on: 18 May 2017

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Mr A Gerrard of Australian Government Solicitor

ORDERS

1. The application received on 9 December 2016 and filed on 21 December 2016 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 623 of 2016

DVY16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

1. The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 22 November 2016. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.

2. The following statement of background facts is derived from the submissions of the Minister filed on 9 March 2017.

3. The applicant is a citizen of Bangladesh who arrived in Australia on 21 April 2015 on a valid tourist visa but a false passport.[1] The applicant’s tourist visa was cancelled and the applicant was taken into immigration detention.

   [1] Court Book (CB) 107, 110-111, 149.

4. On 2 June 2015 the applicant applied for a temporary protection (subclass 785) protection visa (TPV).[2] On 27 May 2016 the applicant withdrew his application for a TPV and applied for a protection visa.[3]

   [2] CB 108.

   [3] CB 1-51, 108.

5. The applicant attended an interview before the delegate on 1 June 2016.[4] On 28 July 2016 the delegate refused to grant the applicant a protection visa.[5] 

   [4] CB 52-59, 109.

   [5] CB 107-120.

6. On 12 August 2016 the applicant sought review of the delegate’s decision by the Tribunal.[6] The applicant attended a hearing on 29 September 2016.[7] On 22 November 2016 the Tribunal affirmed the delegate’s decision.[8]

   [6] CB 127-128.

   [7] CB 181-184.

   [8] CB 190-204.

Tribunal decision

1. The Tribunal set out in detail the applicant’s claims made in his written application and before the delegate,[9] followed by a summary of the discussion of those claims between the applicant and the Tribunal at the hearing.[10] The applicant claimed to have engaged in campaigning for the Bangladeshi Nationalist Party (BNP), which resulted in supporters of the opposing Awami League (AL) bringing false charges against him. He said that he had been detained on these charges and assaulted by police, and then assaulted by AL supporters shortly after his release. He said he feared he would again be unlawfully detained, assaulted and tortured by the AL and the police if he returned to Bangladesh.

   [9] CB 191-3, [3]-[10].

   [10] CB 193-6, [11]-[26].

2. In its recount of its discussion with the applicant at hearing, the Tribunal noted the inconsistencies between the applicant’s written application and oral testimony in regard to the address of his family, his work history and his BNP membership status,[11] his confusing and at times implausible evidence about election campaigns he had been involved in,[12] his unclear evidence regarding his interactions with police after being released on bail,[13] his inconsistent evidence as to the timing of his assault by AL supporters,[14] and that it put to him that country information indicated low level BNP supporters and failed asylum seekers did not face a risk of serious harm in Bangladesh.[15]

   [11] CB 193-4, [11]-[15].

   [12] CB 194, [16]-[18].

   [13] CB 195, [20].

   [14] CB 195, [21].

   [15] CB 196, [23]-[26].

3. It found there was doubt over the credibility of the applicant’s evidence, in particular since he asserted he faced persecution from the AL due to campaigning in a national election in 2013, when, according to the Tribunal, there was no election in the applicant’s region or nationally in that year (when the Tribunal told the applicant there had been an election in 2014, the applicant agreed, but said there was one in 2013 too). The Tribunal also found his evidence regarding the period following his arrest to be “confusing and difficult to accept”, in particular given he claimed that he left Bangladesh in part due to being searched by police, but also that he was on bail at that time and did not leave the country until April 2015.[16]

   [16] CB 197-8, [27]-[28], [30]-[31].

4. The Tribunal accepted that the applicant had some familiarity with recent political history in Bangladesh and the BNP, but that the applicant was a low level supporter who, according to country information, did not face a well-founded fear of persecution.[17]

   [17] CB 197, [29].

5. Based on its analysis, the Tribunal did not accept that the applicant had faced harm in the past as a BNP supporter, and did not accept he had a well-founded fear of persecution if he returned to Bangladesh, either for his support for the BNP or as a returned asylum seeker.[18]

   [18] CB 198-9, [32]-[34].

6. For the same reasons, the Tribunal found that the applicant did not face a real risk of suffering significant harm.[19]

   [19] CB 199-200, [35]-[37].

Present proceedings

1. These proceedings began with a show cause application received in the registry on 9 December 2016 and filed on 21 December 2016. The applicant continues to rely upon that application. The application contains three grounds:

   1.Several jurisdictional errors in the decision especially in paragraph ‘27’ ‘32’ ‘35’ where sweeping assumptions based on flimsy guidelines were made.

   2. Importance not given to available documentary evidence making the decision unfair to the applicant based on bureaucratic guidelines than the truth.

   3.Applicant face real danger of significant harm resulting in even death if return back to the country of origin.

   (errors in original)

2. I have before me as evidence the court book filed on 20 February 2017.

3. I also received the applicant’s affidavit filed with his application on 21 December 2016.

4. Both the applicant and the Minister filed pre-hearing written submissions. Those of the applicant were provided under cover of an affidavit made on 7 February 2017 and sought also to introduce as evidence a bundle of documents. I marked those documents for identification[20] pending further submissions or evidence.

   [20] MFI A1.

5. At the outset of the hearing before me on 22 March 2017 the applicant sought an adjournment of two to three months in order to obtain legal representation. It transpired that the applicant’s written submissions, and his oral submissions, were directed towards that objective. I refused the adjournment application on the basis that the applicant’s efforts to obtain legal representation to date had been unsuccessful and there was no indication that the applicant would have any more success following an adjournment.

Consideration

1. There is no substance to the applicant’s first and third grounds of review.  Ground 1 is an assertion that the Tribunal decision contains several jurisdictional errors, particularly at [27], [32] and [35] where assumptions were expressed that were based on incorrect information.

2. Paragraph [27] of the Tribunal decision[21] describes the applicant’s evidence of his involvement with the BNP, and that he had been involved in election campaigning in 2010, 2012 and 2013. It noted that the applicant was unable to tell the Tribunal which election he was involved in in 2010. It also noted that on the evidence before the Tribunal, there was no national election or election in the applicant’s local area in 2013. In reaching these findings, the Tribunal referred to reports published by Freedom House and an Election Working Group. The Tribunal was entitled to rely on these reports, and was not in error in doing so. The applicant has not provided any evidence that the information in these reports was incorrect.

   [21] CB 197, [27].

3. Paragraph [32] of the Tribunal decision[22] lists a number of the Tribunal’s factual findings as to the truth of the applicant’s claims. It then states a conclusion that, based on these findings and country information the Tribunal earlier referred to at [29], it did not accept that the applicant faced a real chance of serious harm based on his involvement with the BNP. These findings and conclusions were open to the Tribunal on the evidence before it. At [29][23] the Tribunal relied on reports of the Department of Foreign Affairs and Trade and the UK Home Office for drawing a distinction between BNP leaders and low level BNP supporters in the risk of harm that they faced on account of their political activity. The Tribunal was entitled to rely on these reports and place weight on them as it saw fit.[24] Again, the applicant has not provided any evidence that the information in these reports was incorrect. The Tribunal was similarly entitled to make adverse findings on the applicant’s credibility based on the inconsistencies and implausibilities of his evidence.[25]

   [22] CB 198, [32].

   [23] CB 197, [29].

   [24] NAHI v Minister for Immigration [2004] FCAFC 10 [11]-[14[; VWFW v Minister for Immigration [2006] FCAFC 29 at [63].

   [25] See Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 at 272 and 281-282.

4. Paragraph [35] of the Tribunal decision[26] refers to the Tribunal’s earlier findings, including the country information the Tribunal referred to at [29], to make the same factual findings for complementary protection as it did in respect of the applicant’s refugee status. As mentioned above at [20], the Tribunal was entitled to make these findings.

   [26] CB 199, [35].

5. There is nothing in these or any other paragraphs that constitutes jurisdictional error.  

6. Ground 3 appears to be an invitation for the Court to engage in impermissible merits review. It is, as such, not a proper ground of review.

Ground 2

1. To the extent that Ground 2 asserts that the Tribunal placed insufficient weight on the applicant’s documentary evidence and too much weight on “guidelines” the ground cannot succeed.

2. The weight that the Tribunal gives to any piece of evidence falls within the Tribunal’s discretion.[27]  There is nothing to suggest that the exercise of discretion miscarried.

   [27] Minister for Immigration v Indatissa (2001) 64 ALD 1; [2001] FCA 181 at [32].

3. The Tribunal in its decision set out the applicant’s claims in detail, as well as a summary of the documentary evidence the applicant provided, including identity documents[28] and a letter dated 10 June 2015 from a lawyer in Bangladesh suggesting the applicant had had a charge placed against him in 2013 and that he would face harm as a result.[29]

   [28] CB 192-3, [10].

   [29] CB 192, [6].

4. The Tribunal noted at [32] that it placed greater weight on the problems it had identified with the applicant’s evidence than it did on the 10 June 2015 letter.[30] The Tribunal was entitled to place importance on the letter as it saw fit. It clearly did not fail to take the letter into account in its assessment of the applicant’s claims. It similarly did not fail to give due regard to the applicant’s identity documents.

   [30] CB 198, [32].

5. As noted above at [19] to [21], the Tribunal was entitled to rely on country information and place weight on it as it saw fit.

6. However, the second ground may also be read as an assertion that the Tribunal overlooked relevant material. Apart from the applicant’s typewritten and handwritten submissions to the Court, the documents constituting MFI A1 are photocopies of documents which the applicant asserts were provided to the Minister’s Department following his interview with the delegate. The first four documents are identity documents and also appear in the court book. So does a fifth document, which is an advocates letter which was referred to specifically both by the delegate and the Tribunal in their reasons. The remaining documents, like the advocate’s letter, deal with the alleged false case made against the applicant in Bangladesh. They are numerous, and on their face, all appear to pre-date the Tribunal decision. None of them appear in the court book. The applicant told me from the bar table at the trial of this matter that he provided all the documents at the same time to the Minister’s Department.

7. I gave the applicant the opportunity to provide evidence of delivery of the documents to the Minister’s Department and any further submissions in relation thereto. I provided a like opportunity to the Minister in response to whatever the applicant might provide.

8. The applicant filed a further affidavit on 6 April 2017.  Annexed to the affidavit is a statement of further submissions, in which the applicant asserts that the delegate ridiculed the applicant’s efforts to produce documentary evidence and mocked his English.  The applicant further asserts that the delegate refused to accept and inspect what he describes as “case related documents”.

9. The body of the applicant's affidavit only refers to three annexures. The first annexure, Annex A, is a “shipper's copy” of a consignment note purportedly showing that the applicant was sent documents from Bangladesh on 14 March 2016.  The documents that were included in the consignment are not identified, nor is there any indication as to when the applicant received the documents. Even if it is accepted that the note relates to the documents attached to his affidavit sworn on 7 February 2017, the note does not, of itself, provide evidence of him having provided any documents to the Minister’s Department.

10. The second annexure, Annex B, is a disc containing an audio recording of the applicant's interview with the Minister’s Department on 1 June 2016. The relevance of this interview is referred to in the third annexure, Annex C, which is the statement of submissions referred to above.  In the submissions, the applicant refers to a segment of his interview with the delegate and asserts that the delegate refused to accept and inspect documents related to his case. A transcript of the section of the interview is set out in the affidavit of David George Ireland filed on 20 April 2017.

11. I received the applicant’s affidavit for the purpose of introducing into evidence the first two annexures and introducing the third annexure as a submission.  I received the affidavit of Mr Ireland for the purpose of introducing into evidence the transcript of the sound recording.

12. The Minister filed further submissions on 20 April 2017.  I accept those submissions.

13. This segment of interview does not establish that the applicant had any relevant documents in his possession during the interview (let alone those attached to his affidavit of 7 February 2017) or that he attempted to provide documents to the delegate. Accordingly, the segment of interview does not establish that the delegate rejected any documents.

14. The segment of interview, rather, appears to be in the nature of a request made by the delegate to the applicant to provide, at a later stage, documents to establish his identity, of which the Minister’s Department was, to that point, not yet satisfied. During the interview, the applicant made reference to having in his possession “case documents”.

15. In response, the delegate stated that she was referring to identity documents and not case documents. This comment was not a refusal to accept case documents, but a clarification of the scope of her request. Any misinterpretation by the applicant of the delegate’s comments was not the fault of the Minister’s Department.

16. The assertion at [1] of the applicant's submissions that the delegate ridiculed the applicant's attempt to produce documents and mocked his English is unfounded.

17. In any event, even if the applicant could establish that he did provide the documents attached to his affidavit of 7 February 2017 to the Minister’s Department (and he has not done so), there is no evidence that that information was provided by the Minister’s Department to, and was therefore “before”, the Tribunal. A mere failure by the Secretary of the Minister’s Department to comply with the obligation in s.418(3) of the Migration Act 1958 (Cth) to provide relevant documents to the Tribunal does not, without more, amount to jurisdictional error by the Tribunal.[31]

    [31] WAGP v Minister for Immigration [2006] FCAFC 103 at [63]; SZOIN v Minister for Immigration [2011] FCAFC 38 at [65]−[66].

Conclusion

1. The applicant has failed to establish that the decision of the Tribunal is affected by any jurisdictional error.  The decision is therefore a privative clause decision and the application must be dismissed.  I will so order.

2. I will hear the parties as to costs.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date: 18 May 2017