EVU17 v Minister for Immigration
[2020] FCCA 2845
•14 October 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| EVU17 & ORS v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 2845 |
| Catchwords: MIGRATION – Judicial review – decision of the Administrative Appeals Tribunal to refuse the applicants’ protection visas – where the applicants’ grounds for review express disagreements with the Tribunal’s conclusions rather than grounds of jurisdictional error – where the Tribunal’s conclusions were reasonably open to the Tribunal – satisfied no jurisdictional error in the consideration by the Tribunal – application dismissed. |
| Legislation: Migration Act 1958 (Cth) |
| First Applicant: | EVU17 |
| Second Applicant: | EWA17 |
| Third Applicant | EWB17 |
| Fourth Applicant | EWC17 |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3383 of 2017 |
| Judgment of: | Judge Young |
| Hearing date: | 14 October 2020 |
| Date of Last Submission: | 14 October 2020 |
| Delivered at: | Darwin |
| Delivered on: | 14 October 2020 |
REPRESENTATION
| The first Applicant: | In person |
The second Applicant: | In person |
| Counsel for the First Respondent: | Mr Retallick |
| Solicitors for the First Respondent: | Australian Government Solicitor |
ORDERS
The application is dismissed.
The first applicant may make written submissions within seven days in relation to the question of costs and failing this the first applicant is to pay the first respondent’s costs fixed in the sum of $6,000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT DARWIN |
SYG 3383 of 2017
| EVU17 |
First Applicant
| EWA17 |
Second Applicant
| EWB17 |
Third Applicant
| EWC17 |
Fourth Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Ex-Tempore
These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
This is an application by the first and second applicants, who are adults, for protection visas. The third and fourth applicants are their children who, certainly at the time of the decision of the Administrative Appeals Tribunal (“the Tribunal”) on 9 October 2017, were said to be seven years and two years old. As it is three years since that decision, the children would now be about 10 and five. The adult applicants are citizens of Bangladesh. They came to Australia on tourist visas with their eldest child, the youngest child not having been born at that point, on 21 April 2014. They sought protection visas on 17 July 2014.
The background, in general terms at least, is that the first applicant at least, the male applicant, claims to have been a mid-level activist in the Bangladesh Nationalist Party (“BNP”) and claims to have been a member and supporter and activist with the BNP since his student days. He said that because of his political activism on the part of the BNP, he came to the notice of the opposition party, and at the 2014 government party, the Awami League. He said that as a result of his support of the BNP he was persecuted and harmed by various persons, including the police who were acting on the behest of the Awami League or members of the Awami League.
In broad terms, the applicant said that prior to his departure for Australia, he operated a textile factory in Dhaka, Bangladesh. He said that as a result of the threats and harm he had suffered he fled to Australia. The harm, in summary at least, that he alleged to have experienced in Bangladesh was that in September 2012, his car was not returned by a person who forced him to sign blank cheques, apparently to obtain the return of the car. In November 2012, his factory was attacked and, again, he was forced to sign blank cheques at gunpoint. He reported that matter to the police but because the police were under the influence or in cahoots with the Awami League, his complaints were ignored.
He said that in 2013 cases were brought, apparently in the criminal courts in Bangladesh, alleging that he had uttered or passed false cheques. He said that in October 2013 he was arrested and tortured by police acting at the behest of the Awami League or their supporters. He said that following this torture at the hands of the police, which occurred on 3 October 2013, he sought medical treatment. He produced some medical documents which said that he had been treated from 5 October, I think, to 11 October. The Tribunal noted that the medical documents were unsatisfactory and lacked detail. It said in particular that the applicant’s injuries were described as “multiple physical injury” but without any actual medical details, as one might, expect of the injuries. The Tribunal gave those documents no weight.
The applicant also said that he and his family were the victims of a home invasion on 17 January 2014 when police officers invaded his home and threatened his wife, including threatening her at gunpoint, again, as I understood it, at the behest of his enemies, including those in the Awami League. Also of significance is that around about that time, the applicant produced documents which, in substance, appeared to be bail documents showing that he had attended a Magistrates Court in Dhaka on 26 February 2014 and 11 March 2014 when he was being dealt with, it appears for the criminal case, the false criminal case he said, in relation to fraudulent or dishonoured cheques.
The Tribunal, in a long and detailed decision, formed the view that the applicant was not to be believed in significant aspects of his claim. The Tribunal listed those in some detail. The Tribunal was of the view that the applicant had exaggerated his profile as a political activist. Ultimately, the Tribunal accepted that the applicant had been a student member or activist of the BNP many years before but did not accept that he was, as he claimed, a mid-level activist in the BNP immediately before his departure for Australia. I do not need to go through the details of those credit findings, but nevertheless, I was not taken to any material by the applicant that would suggest that those findings were, at least, not open to the Tribunal.
The Tribunal’s concerns on that first point related, really, to two areas. First, it considered that the applicant was drawing on his own experiences or knowledge of the corrupt connection between politicians and business, a view that was supported by the country information the Tribunal considered, which was that politics, business and criminality in Bangladesh overlapped.
The second area of concern to the Tribunal, or the second area of the first part of the Tribunal’s concern, was that, notwithstanding the applicant alleged that he feared harm when he and his family fled to Australia, the evidence suggested that there had been an orderly winding up of the applicant’s business affairs in Bangladesh and he had finalised his financial and family affairs before his departure.
The second area of concern related to the applicant’s conduct in Bangladesh and Australia relating to the chronology of him obtaining visas, and his departure, and his protection claims. The applicant and his family obtained tourist visas for Australia on 4 December 2013. However, they did not arrive in Australia until 21 April 2014. The applicant said that he had initially intended to visit Australia for business but changed his mind after the home invasion on 17 January 2014 and then he feared for his safety and that of his family.
When it questioned him about the delay in departure for Australia after the home invasion, a delay of more than three months, he said that, for various reasons, his fear abated after that, primarily because of political developments in Bangladesh and, it would appear, the he said that he paid a local criminal for protection. The Tribunal was not satisfied with that explanation and did not accept it.
The other area of concern related to the timing of the applicant’s arrival in Australia, as I said, on 21 April, and the applicants’ delay, in seeking protection visas until 17 July 2014, a delay of almost three months.
The applicant was questioned about that and he said that on arrival in Australia, he first explored options for a skilled migration visa. He repeated those claims to me today and said that was the explanation for his delay. Generally speaking, the Tribunal was not satisfied that the applicant’s explanations about those matters were truthful and the Tribunal formed the view that, essentially, the applicant had gone about winding up his affairs and that of his family in Bangladesh in an orderly way and had delayed his departure in order to do that, inconsistent with fearing harm. Secondly, once he arrived in Australia, he and the second applicant had delayed applying for protection visas and the Tribunal was not satisfied with the explanation for that.
The grounds of review relied on by the applicants are attached as an annexure to his application for review. They are not conventional grounds of jurisdictional review and indeed they are, in my view, not grounds of review at all but, as the counsel for the Minister submitted, essentially, an expression of disagreement with the conclusions of the Tribunal and an impermissible attempt at merits review. Nonetheless, I will address some of those matters.
Ground one, so called, takes issue with some factual findings made by the Tribunal. I asked, or I attempted to explain to the applicant that jurisdictional error may well consist of a Tribunal acting on an irrational basis or on a basis where there was no evidence for such a finding. The applicant was, as he is unrepresented, not able to refine his claim to constitute, in my view, a ground of jurisdictional error. Ground one, I am satisfied, is simply taking issue with factual findings that, on my view, were open to the Tribunal.
The second so called ground is that “There were so many unnecessary observations in the decision.” It is difficult, having read that material, to see how they could conceivably relate to or amount to jurisdictional error. I think much the same can be said of what are said to be grounds three and four.
Ground five takes issue with the credibility findings of the Tribunal, again, essentially relating to the matters I have referred to. In my view, while those stated grounds are, as Mr Retallick for the Minister said, no more than an expression of disagreement with the Tribunal’s conclusions, conclusions that were, in my view, open to the Tribunal.
In oral submissions, and I might say that the applicants did not file any written submissions, the applicant said and repeated that the Tribunal had overlooked country information that was relevant to his claims.
I asked the first applicant if he could identify the country information that he says was overlooked. He pointed to material at pages 357, 358, 359 and 360 of the court book, which is evidently a submission, and it appears to be a submission from the applicant himself, but it points to a number of extrajudicial killings related to political conflict in Bangladesh. He said that this indicated that what he described in the submission as “mid-profile leaders” of the Bangladesh Nationalist Party were at risk of harassment and killing by the officials of the state aligned with the Awami League.
The first point to be made in relation to that is that the Tribunal did not accept that the applicant was a mid-profile or mid-level leader or activist or member of the Bangladesh Nationalist Party. It accepted that he had been a student activist or a student member of the BNP but did not accept that his activism had continued after that point. In relation to violence and political violence and politically motivated violence in Bangladesh, the Tribunal, in my view, was cognisant of, in broad terms, the applicant’s claims of conflict, of corrupt violence and, indeed, politically motivated killing in Bangladesh and those matters are addressed throughout the decision.
Mr Retallick for the Minister referred in particular to paragraphs 50, 52, 57, 101 to 104 and 111. Also, as is apparent from the footnote, the Tribunal refers to country information. In broad terms, there can be little doubt that the Tribunal was aware that politically motivated violence and, indeed, politically motivated killing existed in Bangladesh but, essentially, it was not satisfied that the applicant had a profile which put him at risk and, indeed, the Tribunal found specifically that he had exaggerated his profile. I see no jurisdictional error in the consideration by the Tribunal and the application is dismissed.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Young
Associate:
Date: 19 October 2020
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