GUH18 and Ors v Minister for Immigration and Anor

[2020] FCCA 1233

FEDERAL CIRCUIT COURT OF AUSTRALIA

GUH18 & ORS v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 1233

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of protection visas – applicants claiming a fear of harm in Bangladesh – principal applicant not believed – whether the Tribunal properly considered the applicant’s claims or misapplied the Migration Act 1958 (Cth) or the visa criteria considered – no jurisdictional error.

Legislation:

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

Cases cited:

Appellant S395/2002 v Minister for Immigration (2003) 216 CLR 473

MZYXS v Minister for Immigration [2013] FCA 614

SZSGA v Minister for Immigration [2013] FCA 774

First Applicant: GUH18

Second Applicant: GUJ18

Third Applicant: GUK18

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRATION SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3641 of 2018

Judgment of: Judge Driver

Hearing date: 19 May 2020

Delivered at: Sydney

Delivered on: 4 June 2020

REPRESENTATION

Counsel for the Applicant: Mr J Williams by telephone

Solicitors for the Applicant: Nikjoo Lawyers

Solicitors for the Respondents: Ms M Donald of Sparke Helmore by telephone

ORDERS

1. The application as amended by leave granted on 19 May 2020 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3641 of 2018

GUH18

First Applicant

GUJ18

Second Applicant

GUK18

Third Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

1. The applicants seek judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 7 December 2018.  The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicants protection visas. 

2. Background facts relating to this matter are set out in the Minister’s outline of submissions filed on 11 May 2020. 

3. The applicants, who are citizens of Bangladesh, first arrived in Australia on 23 August 2014 as holders of tourist (FA 600) visas.[1] The first and third applicants are married and the second applicant is their child. On 1 December 2015, the applicants applied for protection visas on the basis of the first applicant’s (applicant) claim to fear harm due to his political association with the Bangladesh National Party (BNP).[2]

   [1] Court Book (CB) 100-101

   [2] CB 1-37

4. On 22 June 2016, the delegate refused to grant the visas.[3]  On 8 July 2016, the applicants sought review of the delegate’s decision in the Tribunal with the assistance of a migration agent.[4] In their response to the hearing invitation, the applicants filed a number of documents consisting of identity documents, visa grant notices and an untranslated newspaper article.[5] On 18 September 2018, the applicants filed a change of contact details form removing the migration agent as their representative.[6]

   [3] CB 99-112

   [4] CB 113-119

   [5] CB 134-146

   [6] CB 147-148

5. On 18 September 2018, the applicants appeared before the Tribunal with the assistance of a Bengali interpreter to present arguments and give evidence.[7] The applicants presented a number of identity documents at the hearing.[8] On 7 December 2018, the Tribunal affirmed the decision under review.[9]

   [7] CB 149-151

   [8] CB 152-174

   [9] CB 177-194

Applicant’s claims

1. The applicant’s claims for protection were set out in a statement submitted in support of the visa application and can be summarised as follows:[10]

   a)he is a supporter of the BNP. While he was at college, he became involved with student politics and, in 1998, he became the organising secretary of the college committee for the student wing of the BNP;

   b)after the parliamentary election in 1996, the Awami League (AL) came into power. He was targeted at his college and was compelled to leave the area. He travelled to Dhaka and continued his political association with BNP;

   c)he assisted BNP candidates in the 2001 and 2008 elections. In 2002, he became an executive member of the BNP youth wing in his local area and in 2009, he became a joint secretary of the BNP in the Abadar area;

   d)in 2015, he filed an application to become a BNP candidate for the “ward councillor” position. His application to run in the election was not accepted by the AL members who administered the election enrolment. He was interviewed by a number of media outlets following this and became a target for the AL and the Rapid Action Battalion (RAB);

   e)from July 2015 he was repeatedly asked to attend the offices of the police and Assistant Police Commissioner. Upon his arrival in Australia, he was informed that the police had filed two cases against him and a court had issued a warrant for him. If he returns to Bangladesh, he fears that he will be persecuted and his life would not be protected.

   [10] CB 44-47

2. At the interview with the delegate on 13 April 2016, the applicant provided the following additional information:[11]

   a)he was once arrested by local police and taken into police custody. He was beaten and released on bail three days later;

   b)he delivered important material to the son of Khaleda Zia (a politician and former Prime Minister), in the United Kingdom while he was there on holiday with his family.

   [11] CB 102

Tribunal decision

1. The Tribunal set out the applicant’s claims and the documents filed with the Minister’s Department and Tribunal.[12] The Tribunal found that the applicant was not a credible witness and that aspects of his evidence were “evasive, vague, implausible, contradictory and unconvincing”.[13] Those findings were based on inconsistent information between the applicant’s statement of claims, documentary evidence and oral evidence given at hearing in relation to the following:

   [12] CB 180-181, [12], [14], [17]

   [13] CB 182, [22]

   a)the applicant’s attendance at college and his association with a student political committee;[14]

   [14] CB 182, [23]-[26]

   b)the positions held by the applicant in local BNP groups and his participation in the 2002 and 2008 elections;[15]

   [15] CB182-183, [27]-[29]

   c)the applicant’s claims that he was oppressed by AL cadres;[16]

   d)the applicant’s failed attempt to register as a candidate in the Dhaka City Corporation elections and his claim that he became a target for the AL cadres, police and RAB following media coverage;[17]

   e)the authenticity of documents before the Tribunal issued by a court, the police and an election office in Bangladesh;[18]

   f)documents before the Tribunal pertaining to civil proceedings involving the applicant;[19]

   g)information pertaining to a construction business the applicant owned and the dates of ownership;[20]

   h)the purpose of the applicants overseas travel and the applicant’s claim made before the delegate that the purpose of a trip to London was to deliver important material to the son of Khaleda Zia;[21]

   i)the applicant’s claim that there were two outstanding warrants for his arrest;[22]

   j)a new claim raised by the applicant that allegations were raised against him in Bangladesh in relation to destroyed government vehicles and an alleged assault;[23]

   k)the applicant’s evidence as to the quality of his life in Bangladesh;[24] and

   l)the delay in applying for the visas.[25]

   [16] CB 182-183, [28]

   [17] CB 183-185, [30]-[34], [36]-[41]

   [18] CB 185-189, [42]-[60]

   [19] CB 188-189, [57]-[60]

   [20] CB 189, [61]

   [21] CB 189-190, [62]-[65]

   [22] CB 190, [66]-[68]

   [23] CB 191, [69]-[71]

   [24] CB 191, [72]

   [25] CB 192, [74]

2. The Tribunal found that the applicant was not a witness of truth and that he fabricated his material claims for the purpose of obtaining a protection visa.[26] While the Tribunal accepted that the applicant was a member of the BNP, it did not accept that he held any official position in the BNP or that he campaigned on behalf of the BNP.[27] The Tribunal accepted that the applicant wanted to nominate to be a candidate in the Dhaka City Council election, but his nomination was not accepted because it was lodged out of time rather than because of his affiliation with the BNP or because a local Member of Parliament instructed the election office not to accept the nomination.[28]

   [26] CB 192, [76]

   [27] CB 192, [78]

   [28] CB 192, [79]

3. The Tribunal did not accept that the applicant was targeted by the police and RAB or that the local Member of Parliament and AL cadres were against him.[29] The Tribunal did not accept that the police and Assistant Police Commissioner asked him to attend their offices or attempted to capture him, and was not satisfied that the supporting documents provided by the applicant in relation to this issue were authentic documents.[30]  Further, the Tribunal did not accept that the applicant:[31]

   a)was arrested by local police, beaten and released on bail three days later;

   b)bribed police officers to tip him off when police were planning to go to his house, or

   c)bribed officers at the airport to allow him to depart Bangladesh.

   [29] CB 192 [80]

   [30] CB 193, [80]

   [31] CB 193, [82]

4. On the basis of the above credibility findings, the Tribunal was not satisfied that the applicant was at risk of serious harm or significant harm for the reasons claimed and found that the applicant did not satisfy the criterion in s.36(2)(a) of the Migration Act 1958 (Cth) (Migration Act).[32] In view of the above findings, the Tribunal was not satisfied that there were substantial grounds for believing that as a necessary and foreseeable consequence of removal, there was a real risk the applicant would suffer significant harm and concluded that the criterion in s.36(2)(aa) was not met.[33]

   [32] CB 193, [84]

   [33] CB 193, [86]-[88]

5. On the basis of its findings in relation to the applicant, the Tribunal found that the second and third applicants were unable to satisfy the criteria in s.36(2)(b) or (c) of the Migration Act and affirmed the decision under review.[34]

   [34] CB 194, [91]-[92]

The current proceedings

1. These proceedings began with a show cause application filed on 31 December 2018.  The applicants now rely upon an amended application (which was further amended during the course of the hearing before me) in respect of which leave was granted on 19 May 2020.  The grounds in that application as amended are:

   Ground 1: The Tribunal either misapplied the relevant statutory principle, or failed to give genuine, realistic or proper consideration to the claims of the applicants or there was an insufficient logical or evidentiary basis for the decision by the Tribunal

   1.The decision by the Tribunal was affected by jurisdictional error as the Tribunal either misapplied the relevant statutory principles, or failed to give genuine, realistic or proper consideration to the claims of the applicants or there was an insufficient logical or evidentiary basis for the Tribunal to find that the applicant did not face a real risk of harm for his ethnicity as a Bengali, religion as a Muslim or for his political opinion as a member of the BJP at [84] under the refugee criterion and at [86], after accepting at [77] that he is of Bengali ethnicity and is a Muslim and at [78[ that he is a member of the BJP. 

   Particulars

   The protection claims

   a) At [77] the Tribunal “accept[ed] that the first named applicant was born on [date] at [place] in Bangladesh.  The Tribunal accept[ed] that he is of Bengali ethnicity and is a Muslim.”

   Jurisdictional error

   b)At [78], the Tribunal "accept[ed] that the first named applicant was a member of the BNP." The Tribunal erred by finding that the "Tribunal does not accept that he held any official position in the BNP or that he campaigned on behalf of the BNP. It follows that the Tribunal does not accept any of his claims that flow from that."

   78.The Tribunal accepts that the first named applicant was a member of the BNP. The Tribunal does not accept that he held any official position in the BNP or that he campaigned on behalf of the BNP. It follows that the Tribunal does not accept any of his claims that flow from that.

   The adverse credibility finding

   c)The Tribunal erred at [76] by finding that "[h]aving considered all the first named applicant's claims and all the evidence, the Tribunal finds that he is not a witness of truth."

   76.    Having considered all the first named applicant's claims and all the evidence, the Tribunal finds that he is not a witness of truth. The Tribunal formed the view that he was prepared to say anything to obtain a favourable outcome without any regard for the truth. The Tribunal finds that he fabricated his material claims for the purpose of obtaining a Protection visa.

   The nomination to be candidate in the Dhaka City council election

   d)At [79], the Tribunal accepted that "he wanted to nominate to be a candidate in the Dhaka City Council election ... " The Tribunal erred by finding that it "does not accept that his nomination was not accepted because of his affiliation with the BNP ... "

   79.    The Tribunal accepts that he wanted to nominate to be a candidate in the Dhaka City Council election but that the Election Office did not accept his nomination because it was lodged out of time. The Tribunal accepts that 25 to 30 other people, including people backed by the AL, who also wanted to nominate to be candidates in that election did not have their nominations accepted by the Election Office for the same reason. The Tribunal does not accept that his nomination was not accepted because of his affiliation with the BNP, because a local Member of Parliament instructed the Election Office not to do so or for any other reason claimed.

   e)At [80], the Tribunal "accept[ed] that the first named applicant and other people who were unable to file their nominations with the Election Office were interviewed by the media." However, the Tribunal erred by finding it "does not accept that no one was protesting against the AL at that time but once he spoke to the media many others followed."

   80.    The Tribunal accepts that the first named applicant and other people who were unable to file their nominations with the Election Office were interviewed by the media. The Tribunal does not accept that no one was protesting against the AL at that time but once he spoke to the media many others followed.

   f)At [80], the Tribunal erred by finding that "[f]or the reasons given above, the Tribunal is not satisfied that the supporting documents provided by him in relation to applications and complaints to the Police, Notices and letters from the Police and Election Office, Memoranda from the Police and documents in relation to Court proceedings are authentic documents."

   The applicant’s claim that he went into hiding

   g) At [81], the Tribunal erred by finding that the “Tribunal does not accept that the first named applicant went into hiding in 1996 or in 2014. The Tribunal does not accept that he consulted a Psychologist or Psychiatrist in Bangladesh in relation to mental health issues or that he was prescribed medication by his doctor for mental health issues. The Tribunal does not accept that he was assigned with the task of delivering important material to Khaleda Zia's son, Mr Rahman, in the UK while he was there on holiday with his family."

   81.    The Tribunal does not accept that the first named applicant went into hiding in 1996 or in 2014. The Tribunal does not accept that he consulted a Psychologist or Psychiatrist in Bangladesh in relation to mental health issues or that he was prescribed medication by his doctor for mental health issues. The Tribunal does not accept that he was assigned with the task of delivering important material to Khaleda Zia's son, Mr Rahman, in the UK while he was there on holiday with his family

   The applicant’s claim that he was arrested

   h) At [82], the Tribunal erred by finding that the "Tribunal does not accept that the first  named applicant was arrested by the local Police, taken into custody, beaten and  released on bail three days later. Alternatively, the Tribunal [erred by finding that it] "does not accept that he was never arrested by the Police because he bribed certain Police Officers to tip him off when the Police were planning to go to his house. The Tribunal does not accept that he bribed officers at the airport so that he could depart Bangladesh on the last occasion that he left Bangladesh.”

   82.    The Tribunal does not accept that the first named applicant was arrested by the local Police, taken into custody, beaten and released on bail three days later. Alternatively, the Tribunal does not accept that he was never arrested by the Police because he bribed certain Police Officers to tip him off when the Police were planning to go to his house. The Tribunal does not accept that he bribed officers at the airport so that he could depart Bangladesh on the last occasion that he left Bangladesh.

   The applicant’s claim that he has “any” application for entry in the General Diary, complaints, investigations, charged, Court cases or warrants against him

   i) At [83], the Tribunal erred by finding that the “Tribunal does not accept that the first named applicant had or has any applications for entry in the General Diary, complaints, investigations, charges, Court cases or warrants against him. The Tribunal is not satisfied that he is of adverse interest to any person or organization claimed. The Tribunal is not satisfied that he is at risk of serious harm or significant harm for any of the reasons claimed if he returns to Bangladesh now or in the reasonably foreseeable future."

   The refugee criterion

   j)Ultimately, the Tribunal erred at [84] under the refugee criterion by finding that "[h]aving considered all of the first named applicant's claims, individually and cumulatively, all the evidence and in view of the findings above, the Tribunal finds that there is no real chance that the first named applicant will suffer serious harm for reason of his actual or imputed political opinion or any other reason set out in s.5J(l )(a) of the Act if he returns to Bangladesh now or in the reasonably foreseeable future. Therefore, the Tribunal finds that he does not have a well-founded fear of persecution and is not a refugee as defined in s.5H of the Act. Accordingly, the Tribunal finds that he does not satisfy the criterion in s.36(2)(a) of the Act."

   84.    Having considered all of the first named applicant's claims, individually and cumulatively, all the evidence and in view of the findings above, the Tribunal finds that there is no real chance that the first named applicant will suffer serious harm for reason of his actual or imputed political opinion or any other reason set out in s.5J(l )(a) of the Act if he returns to Bangladesh now or in the reasonably foreseeable future. Therefore, the Tribunal finds that he does not have a well-founded fear of persecution and is not a refugee as defined in s.5H of the Act. Accordingly, the Tribunal finds that he does not satisfy the criterion in s.36(2)(a) of the Act.

   The complementary criterion

   k) Similarly, the Tribunal erred at [86] of the decision record, by finding the “Tribunal is not satisfied that there is a real risk that he will suffer significant harm for any of the reasons claimed.”

   86. The Tribunal has considered the first named applicant's claims under complementary protection. In view of the above findings, the Tribunal is not satisfied that there is a real risk that he will suffer significant harm for any of the reasons claimed if he returns to Bangladesh now or in the reasonably foreseeable future.

   Ground 2: The Tribunal misapplied section 5J(3)(i) of the Migration Act 1958 (Cth) by finding the applicant should modify his behaviour so as to avoid a real chance of persecution

   2. The Tribunal misapplied section 5J(3)(i) of the Migration Act 1958 (Cth) by failing to consider whether the applicant will be forced to modify his (a) ethnic beliefs as a Bengali; or (b) his religious beliefs as a Muslims or (c) his political opinion or membership of a social group as a member of the BHP, so as to avoid persecution in Bangladesh. Alternatively, the Tribunal erred by finding by implication that the applicant can or should modify his (a) ethnic beliefs as a Bengali; or (b) his religious beliefs as a Muslims or (c) his political opinion or membership of a social group as a member of the BHP, so as to avoid a real chance of persecution.

   Particulars

   The protection claims

   a)At [77] the Tribunal "accept[ ed] that he is of Bengali ethnicity and is a Muslim."

   b)At [78], the Tribunal "accept[ed] that the first named applicant was a member of the BNP."

   Jurisdictional error

   c) the Tribunal failed entirely to consider entirely whether the applicant will be forced to, or can or should modify his (a) ethnic beliefs as a Bengali or (b) his religious beliefs as a Muslims or (c) his political opinion or membership of a social group as a member of the BHP, so as to avoid persecution in Bangladesh.

   The refugee criterion

   d)The Tribunal erred by finding at [84] that he does not have a well-founded fear of persecution and is not a refugee as defined in s.5H of the Act.

   84.    Having considered all of the first named applicant's claims, individually and cumulatively, all the evidence and in view of the findings above, the Tribunal finds that there is no real chance that the first named applicant will suffer serious harm for reason of his actual or imputed political opinion or any other reason set out in s.5J(l )(a) of the Act if he returns to Bangladesh now or in the reasonably foreseeable future. Therefore, the Tribunal finds that he does not have a well-founded fear of persecution and is not a refugee as defined in s.5H of the Act. Accordingly, the Tribunal finds that he does not satisfy the criterion in s.36(2)(a) of the Act.

   The complementary criterion

   e)The Tribunal erred at [86] by finding that it "is not satisfied that there is a real risk that he will suffer significant harm for any of the reasons claimed."

   86.    The Tribunal has considered the first named applicant's claims under complementary protection. In view of the above findings, the Tribunal is not satisfied that there is a real risk that he will suffer significant harm for any of the reasons claimed if he returns to Bangladesh now or in the reasonably foreseeable future.

   Ground 3: The Tribunal erred by failing to distinguish the application of section 5J(6) of the Migration Act 1958 (Cth) to refugee criterion from the complementary criterion

   3. The decision by the Tribunal was affected by jurisdictional error as the Tribunal failed to distinguish the applicant's claims that he faces a real risk of serious harm in Bangladesh based on (a) his ethnic beliefs as a Bengali; or (b) his religious beliefs as a Muslims or (c) his political opinion or membership of a social group as a member of the BHP with the claims of significant harm under the complementa1y criterion at [86] of the decision record. The Tribunal therefore erred by misinterpreting, misunderstanding or misapplying the applicable law by conflating the considerations regarding the applicant’s claims under the refugee criterion at [84] of the decision record, with the considerations under the complementary criterion at [86] of the decision record.

   Particulars

   The failure by the Tribunal to distinguish the considerations and findings under the refugee criterion with the considerations and findings under the complementary criterion

   a) At [85], the Tribunal erred by failing to distinguish and conflating the considerations and findings under the refugee criterion with the considerations and findings under the complementary criterion by finding that the "Tribunal has found that the first named applicant does not meet the refugee criterion in s.36(2)(a) of the Act, the Tribunal has considered whether he may nevertheless meet the criterion for the grant of a Protection visa pursuant to the complementary protection criterion."

   The refugee criterion

   b)The Tribunal erred by finding at [84] that he does not have a well-founded fear of persecution and is not a refugee as defined in s.5H of the Act.

   84.    Having considered all of the first named applicant's claims, individually and cumulatively, all the evidence and in view of the findings above. The Tribunal finds that there is no real chance that the first named applicant will suffer serious harm for reason of his actual or imputed political opinion or any other reason set out in s.5J(1)(a) of the Act if he returns to Bangladesh now or in the reasonably foreseeable future.

   Therefore, the Tribunal finds that he does not have a well-founded fear of persecution and is not a refugee as defined in s.5H of the Act. Accordingly, the Tribunal finds that he does not satisfy the criterion in s.36(2)(a) of the Act.

   The complementary criterion

   c)The Tribunal erred at [86] by finding that it "is not satisfied that there is a real risk that he will suffer significant harm for any of the reasons claimed."

   86.    The Tribunal has considered the first named applicant's claims under complementary protection. In view of the above findings, the Tribunal is not satisfied that there is a real risk that he will suffer significant harm for any of the reasons claimed if he returns to Bangladesh now or in the reasonably foreseeable future.

   (errors in original)

1. I received the affidavit of Fardin Nikjoo made on 6 May 2020 for the purpose of dealing with the applicants’ Application in a Case filed on 7 May 2020.[35]

   [35] The Application in a Case sought leave for the amended application to be filed

2. I have before me as evidence for the proceeding generally the court book filed on 26 March 2019.

Consideration

1. Contrary to the applicants’ assertions, the applicant’s claims were claims based upon his asserted political opinion as a member and office holder of the BJP.  Although his religion and ethnicity were mentioned in the applicant’s statement of claims[36] there is nothing in the court book to support the proposition that the applicant had advanced any claim for protection based upon his ethnicity or religion.  This was plainly a claim based upon the applicant’s asserted political opinion and his activities in the pursuit of politics. Neither could a claim based upon religion or ethnicity be said to arise squarely on the material.  Indeed, it did not arise at all.

   [36] CB 44

2. To the extent that the applicants challenge the comprehensive adverse credibility findings made by the Tribunal, the answer to that challenge can be found in the detailed consideration by the Tribunal of the applicant’s credibility.  The Tribunal advanced 19 reasons for rejecting his credibility. 

3. Further, having rejected the applicant’s claims of past harm, the Tribunal was entitled to use those factual findings also to deal with the claim of complementary protection.

4. It is true that at [78][37] the Tribunal accepted that the applicant was a member of the BNP.  It is also true that at [79]-[80][38] the Tribunal accepted the putative candidacy of the applicant in the Dhaka City Council election.  However, there was no claim before the Tribunal (either expressly advanced by the applicants or arising from the material) that the applicant faced a risk of harm simply by reason by his membership of the BNP.  The Tribunal rejected the claim that the applicant suffered harm or was discriminated against in his attempted candidacy in the Dhaka City Council election. 

   [37] CB 192

   [38] CB 192-193

5. Further, having dealt comprehensively with the applicant’s claims based upon his political opinion, it was unnecessary for the Tribunal to consider whether the applicant would have had to modify his behaviour

   
   

   (in relation to his political activities) should he return to Bangladesh.  As I have already indicated, there was no claim based upon religion or ethnicity in relation to which any issue of modification of behaviour could be said to arise. 

6. I otherwise agree with the Minister’s submissions concerning the amended grounds of review advanced. 

7. Ground 1 contends that either:

   a)the Tribunal misapplied the relevant statutory principle; or

   b)the Tribunal failed to give genuine, realistic, or proper consideration to the claims of the applicants; or

   c)there was an insufficient logical or evidentiary basis for the Tribunal’s decision.

8. I reject the contentions in this ground.  The Tribunal plainly understood the task that it had to perform and engaged in detail with the applicant’s claims.  The 19 reasons advanced by the Tribunal for rejecting his credibility were a cogent and logical basis for the conclusions reached.

9. Ground 2 asserts that the Tribunal misapplied s.5J(3)(i) of the Migration Act at [52] of its decision by failing to consider whether the applicant would be forced to modify his behaviour in relation to his “ethnic beliefs as a Bengali”, his religious beliefs as a Muslim or his political opinion or membership of the BNP so as to avoid a real chance of persecution.

10. There is a disconnection between what the Tribunal is alleged to have found and what it actually found. At [52] the Tribunal considered a letter dated 26 March 2015 regarding the applicant’s claim to have violated Bangladesh Election Conduct Rules, where no such rules exist (thus raising concerns about the authenticity of that document).  As I have already found, the applicant did not claim to fear harm for reasons of his ethnicity or religious beliefs. The Tribunal is not required to consider a claim not made, nor one which cannot be said to squarely arise on the material before it.

11. In relation to the contention that the Tribunal failed to consider whether the applicant would be forced to modify his political opinion or membership of the BNP, this cannot be made out. Although the Tribunal accepted at [78] that the applicant was a member of the BNP, it found that he had not held any official position in the BNP and did not accept any claims that flowed from that. It found at [84] that there was not a real chance that the applicant would suffer serious harm for reasons of his actual or imputed political opinion or any other reason set out in s.5J(1) of the Migration Act. It was open to the Tribunal to find that there was not a real chance of serious harm to the applicant on this basis upon return to Bangladesh in circumstances where it had rejected the entirety of his factual claims related to his claimed BNP membership other than the mere fact of that membership. On the basis of the inconsistencies set out by the Tribunal at [23]-[29] of its decision record, it found that the applicant was not a witness of truth at [76] and that aspects of his evidence were “evasive, vague, implausible, contradictory and unconvincing” at [22]. The inconsistencies identified by the Tribunal in the applicant’s evidence led the Tribunal to find at [76] that the applicant had fabricated his material claims for the purposes of obtaining a protection visa. The Tribunal’s adverse findings at [78] were open on the material before it.

12. To the extent that this ground contends that the Tribunal made the same error as identified in Appellant S395/2002 v Minister for Immigration,[39] the Tribunal has not made any findings or assumptions about how the risk of persecution might be avoided. That is, it rejected the applicant’s claims about how he was involved in the BNP such that there was no need for it to consider whether he would need to modify such behaviour upon return. The only claim it did accept in relation his claims about his political opinion was that he was a BNP member, but did not accept that he held any official position in the BNP, campaigned on behalf of them or any of his claims that flowed from that.[40] Once it found that there was not a real chance of persecution to the applicant on this basis, it did not need to consider the matters set out in s.5J(3) of the Migration Act.

    [39] (2003) 216 CLR 473

    [40] CB 192, [78]

13. Ground 3 contends that the Tribunal erred in the application of s.5J(6) of the Migration Act by failing to distinguish the application of s.5J(6) to the refugee criterion from the complementary criterion in considering the applicant’s claim to fear harm based on his “ethnic beliefs”, religious beliefs and political opinion and membership of a particular social group.

14. This contention fails at a factual level. First, the applicant did not claim to fear harm on the basis of his ethnicity or religious beliefs. Further, the Tribunal was clearly cognisant of his claim to fear harm based on his membership of the BNP. However, the Tribunal was not satisfied at [78] that the applicant held any official position in the BNP and rejected his claims that flowed from that. Accordingly, it was not satisfied at [83] that he faced a real chance of harm for any of the reasons claimed. Having regard to the relevant legislative provisions governing complementary protection, the Tribunal relied on its anterior findings to find at [88] that the applicant would not face a real risk of significant harm on return to Bangladesh.

15. The Tribunal was clearly aware of the different tests as between the refugee and complementary protection criteria in assessing any significant harm the applicant may face. There is no jurisdictional error in the Tribunal referring to its previous findings of fact in relation to the applicant’s claims when assessing his claims under the complementary protection provisions.[41] The proposed third ground does not establish jurisdictional error.

    [41] SZSGA v Minister for Immigration [2013] FCA 774 at [54]-[56]; MZYXS v Minister for Immigration [2013] FCA 614 at [31]

Conclusion

1. The applicants have 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.

2. I will so order.

3. I will hear the parties as to costs.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  4 June 2020