Ebt16 v Minister for Home Affairs

[2019] FCCA 75

FEDERAL CIRCUIT COURT OF AUSTRALIA

EBT16 v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 75

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

Legislation:

Migration Act 1958 (Cth), ss.5J(1)(a), 36(2)(a)

Applicant: EBT16

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 417 of 2018

Judgment of: Judge Vasta

Hearing date: 14 January 2019

Date of Last Submission: 14 January 2019

Delivered at: Brisbane

Delivered on: 14 January 2019

REPRESENTATION

The Applicant appearing on their own behalf

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. That the Application for an extension of time is refused.

2. That the Application filed 30 April 2018 is otherwise dismissed.

3. That the Applicant pay the costs of the First Respondent fixed in the sum of $5,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 417 of 2018

EBT16

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

1. The Applicant is a citizen of Bangladesh.  He obtained a visitor visa and arrived in this country on 4 May 2015.  That visa would have expired on 4 August 2015.  On 21 July 2015, the Applicant made his application to stay in Australia. 

2. This matter has been the subject of an Administrative Appeals Tribunal (“the AAT”) decision back on 1 December 2016.  On 23 December 2016, the Applicant applied to this Court for judicial review of the Tribunal’s decision.  On 1 August 2017, this Court ordered, by consent, that the matter be remitted to the Tribunal for reconsideration.

3. After that remittal, the Applicant was given the chance to appear before a differently constituted Tribunal.  He appeared before that Tribunal on 29 January 2018 and 8 February 2018.  He gave evidence and he presented arguments. 

4. On 28 February 2018, the Tribunal again affirmed the decision of the delegate not to grant the Applicant the protection visa.

5. That decision, having been made on 28 February 2018, meant that the Applicant had 35 days in which to come to this Court.  That 35 days expired sometime in early April 2018, it would seem.  The Applicant did not file his application until 30 April 2018.  He is therefore out of time unless it is that this Court allows an extension of time.

6. There are three matters that the Court looks at as to whether the grant of an extension of time should be given.  Firstly, there is the question of, what was the excuse for not filing the application in time; secondly, what is the prejudice, if any, to the Respondent; and thirdly, does the application itself warrant the Court looking at it. That is, are the merits sufficient so that a grant of leave should be given for the Court to consider the matter fully. 

7. The Applicant claims that he came from Faridpur Upazila, which is an administrative and geographic region.  He claims that he was the general secretary of that region of the Bangladesh Nationalist Party, the BNP.  The Applicant claims that he had been the subject of a number of attacks by rivals in the Awami League.  He claims that his predecessor in the position of general secretary was arrested and jailed and another person who was at his equivalent title, but in another region, was arrested and jailed.  He says that he was also the owner of a business dealing with computer training and that business was the subject of a number of attacks by the Awami League. 

8. The Tribunal very, very thoroughly went through all of the claims over the two days of hearings.  At paragraph 127, the Tribunal said:

   The Tribunal has its reservations about the applicant’s claims.  The Tribunal accepts the applicant wishes to stay in Australia to make a future for himself.  The Tribunal has strong reservations about the credibility of the applicant’s claims.  The numerous inconsistencies in his own evidence in this hearing, together with the inconsistencies as between the interview with the delegate, the hearing with the previous Tribunal, this hearing and his written claims, and the implausibility of some of his responses to other questions, causes this Tribunal to have no confidence in the integrity of the applicant’s claims…

9. The Tribunal noted that the Applicant did not apply for a protection visa until almost the very end of his visitor period, and found that there was a problem with that.  That was because the Applicant had said to the previous Tribunal that he arrived in Australia intending to return to Bangladesh but told this Tribunal that he did not intend to return to Bangladesh when he first arrived.  When he was reminded of that previous evidence, he denied that he had said that to the other Tribunal. 

10. He was then reminded of the previous Tribunal’s view of the implausibility of that response and he replied that he had intended to return until he realised that things had changed in Bangladesh in the six weeks that he had been in Australia.  But he also told the Tribunal that, when he arrived in Australia, he had little idea of what to expect. He found that he liked the place and then he just decided to stay.

11. The Tribunal did not accept that the Applicant was a member of the BNP.  This was because he had a very superficial understanding of what the BNP stood for.  The Tribunal found that someone who claimed to be a general secretary of the party would have some knowledge of the policies of the BNP and some knowledge of how it is that those policies differed from the opposition party.  The Applicant could not do that.

12. The Tribunal noted the Applicant provided inconsistent evidence as to the structure of the party organisation.  The Tribunal noted that the Applicant provided inconsistent evidence as to the process by which he became a member of the BNP.   The Tribunal noted that he could not recall when he became the general secretary of Upazila.  The Tribunal said that they would expect that the Applicant would remember such a significant date or even an approximate date, given his apparent pride in such an appointment.

13. The Tribunal noted that the Applicant provided inconsistent evidence about his role as general secretary and he could not explain how many meetings he attended and what happened and what the purpose of the meetings were. 

14. The Tribunal noted that the Applicant was unable to address the Tribunal’s concerns about his responses to the previous Tribunal about his apparent lack of knowledge about the BNP flag.  The Tribunal noted the Applicant had no independent evidence of his membership of the BNP.  The Tribunal noted that the Applicant had no difficulty leaving Bangladesh at the airport, given that the country information was that authorities had prevented both senior and ordinary members of the BNP from leaving the country. 

15. The Tribunal accepted that the Applicant sustained some injuries in 2010 but did not accept that the assault that caused the injuries was as a result of his involvement in the BNP.  They noted that the Applicant told the Tribunal his attackers wore masks, but in his written claims he said that he was able to identify who his attackers were.  The answer that he gave to the Tribunal as to this inconsistency was that, after he thought about it, he worked it out from their eyes.  The Tribunal noted that, if the Applicant was assaulted in August 2010, it would not have expected him to wait almost five years before hatching the plan that he did to come to Australia.

16. The Applicant presented a number of documents in support of the claims and the Tribunal placed no weight on a number of those documents and even suggested that some of those documents could well be forgeries, and that caused the Tribunal to further doubt his credibility. 

17. The Tribunal had some doubts as to whether the Applicant operated the business known as the Ankur Institute of ICT, and those doubts were based on Ankur ICT Development Foundation and other information that it had.

18. On the issue of witnesses, the Tribunal gave the Applicant both notice of his right and the opportunities to call his witnesses that he had advised the Tribunal in his response to hearing that he would call.  The Tribunal noted that the reason that the review to the Federal Circuit Court (‘the FCC”) in 2017 was successful was that the FCC had agreed that the Applicant had been denied by the previous Tribunal the opportunity to call witnesses in support of his claims.  The Applicant rejected all invitations to call his witnesses to this hearing in support of his claims.

19. After considering all of that evidence, the Tribunal was unable to satisfy itself that the Applicant has a well-founded fear of persecution for any of the reasons mentioned in s.5J(1)(a) of the Migration Act 1958 (Cth) (“the Act”).

20. The Tribunal looked at all of his claims individually and cumulatively and came to the conclusion that the Applicant did not satisfy the criteria in s.36(2)(a) of the Act.

21. The Tribunal looked at the complementary protection criteria and, for similar reasons, found that there were no grounds to suggest that the Applicant would be subject to significant harm for any reason if he returns to Bangladesh, therefore that criterion was not met. 

22. That really left the AAT with no real reason to find that the Applicant should be granted the protection visa.

23. The grounds of this application are:

    (1) Jurisdictional error

    (2) Unreasonableness

    (3) Irrelevant consideration. 

24. The Applicant was asked to expand upon those grounds.  Not only did he not do that, he could not, in any way, show that there was any jurisdictional error, or that there was unreasonableness, or that there was any irrelevant consideration.  All that he said to me was the mistake the Tribunal made was that, “They did not find in my favour.”  That could hardly be cause for jurisdictional error. 

25. The Applicant has said to me that the situation in Bangladesh is very bad.  He said that there was an election held last year, 2018, and it was a one-sided election and a month after the election, the situation in Bangladesh got worse.  He submitted to me that he wanted to bring his son here to have an education in Australia; that he wants his wife and his son to come here.  None of those grounds demonstrate any form of jurisdictional error. 

26. Obviously, if this were a matter that was properly before me, having been filed in time, I would dismiss the application because there was no jurisdictional error.

27. There are two other aspects to the extension of time application that I must consider.  I do not consider that there would be any prejudice to the Respondents if there were a grant of an extension of time. 

28. As for the excuse as to why the matter was not filed in time, all the Applicant has said is that:

    Previous application was not accepted as filing fee payment was not made within 35 days of AAT decision.

29. That gives me no understanding as to why this was filed out of time and the Applicant himself has not given me any excuse in his oral submissions today as to why it was filed out of time. 

30. Given that he has already had an opportunity to come to the FCC, it would seem, over two years ago, he knew what he had to do and did not do it in this case. 

31. Therefore, I do not find that there is any merit in any of his excuses. 

32. Given that there is no valid excuse as to why the matter was not before this Court in time and given that there is no merit in the application overall, I refuse to grant the Applicant an extension of time within which to file this matter. 

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date:  18 January 2019