SZHGF v Minister for Immigration

[2017] FCCA 2402

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZHGF v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2402

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugee Division) – protection visa – whether the Tribunal failed to put adverse information to the applicant – whether the Tribunal’s decision was illogical – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 424A, 424AA, 476.

Cases cited:

SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235

Applicant: SZHGF

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1155 of 2017

Judgment of: Judge Street

Hearing date: 29 September 2017

Date of Last Submission: 29 September 2017

Delivered at: Sydney

Delivered on: 29 September 2017

REPRESENTATION

Counsel for the Applicant: Mr P Bodisco

Solicitors for the Applicant: Shelly Legal

Solicitors for the Respondents: Mr A Markus
Australian Government Solicitor

ORDERS

1. Grant leave to the applicant to file in Court the complete affidavit of Renae Nicole Dunstan dated 28 September 2017.

2. The amended application is dismissed.

3. The applicant pay the first respondent’s costs fixed in the amount of $6,948.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1155 of 2017

SZHGF

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 23 March 2017, affirming a decision of the delegate not to grant the applicant a protection visa. The applicant was found to be a citizen of Bangladesh and his claims were assessed against that country.

2. The applicant entered Australia on 1 September 2001 on a Temporary Work (Entertainment) visa (Subclass 420). The applicant made his first application for protection on 4 September 2001. The applicant was unsuccessful in relation to the Department and applied for a review before the Tribunal. The Tribunal affirmed the delegate’s decision on 9 April 2003 and the applicant then sought review by the Federal Magistrates Court and then the Full Court of the Federal Court and the High Court unsuccessfully. The applicant then made a number of requests for ministerial intervention.

3. The applicant then made further applications for review of the decision of the Tribunal in the Federal Magistrates Court, the Full Court of the Federal Court, which were dismissed for lack of jurisdiction.

4. The applicant remained in Australia as an unlawful citizen and was detained on 12 September 2012. On 18 December 2012, the applicant lodged a further claim for protection. Consistent with the principles then in SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235 this was treated as a valid application for a protection visa on the grounds of complementary protection. On 2 April 2015, the delegate found the applicant failed to meet the criteria under the Act and refused the application.

The Tribunal’s Decision

1. On 7 May 2015, the applicant applied for review. The applicant was invited to and attended a hearing on 31 October 2016 and then a further hearing on 7 December 2016. The Tribunal identified the applicant’s background to the application for review. The Tribunal set out the relevant law in relation to complementary protection.

Claims for protection

1. The Tribunal identified the applicant’s claims which were, in summary, that in 1991 he joined the Jatiyotabi Chhatra Dal (“Chhatra Dal”), the student wing of the Bangladesh National Party (“BNP”), and joined various political rallies and demonstrations arranged by the Chhatra Dal.

2. The applicant alleges that he was an activist of the Chhatra Dal at a particular college in Dhaka in 1990 to 1991. The applicant alleges he became vice president of the BNP student wing of Dhaka city north and an influential leader of the Chaatra Dal. The applicant alleges the Awami League started a conspiracy against him and he was threatened at home and that they attempted to kill him twice in 2001.

3. The applicant alleges that in 1993 he was attacked by Awami League goons and still carries a bullet mark on his body. The applicant alleges that on 14 April 2001, Muslim terrorists killed nine artists in an open-air concert and that the applicant also performed at that particular concert and was threatened and arranged to leave Bangladesh.

4. The applicant alleges that in the middle of 2001 the applicant was then nearly caught by the Awami League and that he had to hide for a number of days. The applicant alleges that he heard that the government had filed a case against him and a number of political friends. The applicant alleged that the charges asserted the applicant was acting against the state. The applicant alleged a warrant was issued for the arrest of the applicant by the Dhaka Metropolitan Magistrates Court. The applicant alleges that the case against him was fabricated and the police started to visit his residence in Dhaka.

5. The applicant also alleged involvement with the Muslim feminist author Taslima Nasreen and alleges he was attacked by Muslim fundamentalists for this reason. The applicant alleges that after he left Bangladesh, the Awami League won the elections and that if he returns he would be subject to oppression by the Awami League goons and law enforcement authorities.

6. The Tribunal also summarised the applicant’s claims and identified the applicant’s evidence, including the written submissions and documents provided in support of his claims. Those documents also included alleged involvement by the applicant by BNP Australia, as identified in the Tribunal’s reasons.

Credibility findings

1. The Tribunal identified that it had had credibility concerns, and having considered the written oral and evidence before it, found the applicant was not a credible witness and that his claims are not reliable or credible.

2. The Tribunal provided detailed reasons in support of the adverse credibility findings. No submission was advanced taking issue with those adverse credibility findings. In the context of those findings, the Tribunal made reference to the fact it may be accepted the applicant attended events relating to Bangladesh culture in Australia. The Tribunal did not accept that the applicant had created for himself in Australia any profile that would make him of any interest to anyone should he return to Bangladesh in the reasonably foreseeable future.

3. The Tribunal also identified in those findings on credibility, concerns due to the lateness of the claim by the applicant that he was involved in the BNP Australia activities and the Tribunal made reference to the applicant undertaking those activities for the purpose of assisting his protection claim.

4. The Tribunal observed that the applicant had not made any claims regarding his political profile with the BNP Australia when his application was filed in 2012 and that it was, at the time of interview with the delegate in 2014, that he produced his first letter of alleged involvement in the BNP. The Tribunal was of the view that the applicant would not have held back on claims involving the BNP had they been genuine.

5. The Tribunal did not accept, in the adverse credibility findings, the applicant’s claims as to his political activities in Australia as being reliable or that it should be afforded significant weight. The Tribunal made reference to asking the applicant at the hearing particular positions he held in the Australian organisation. The Tribunal found when the applicant was asked by the Tribunal what he did in the various roles for the BNP Australia he could not elaborate and was unable to provide the level of detail to the Tribunal that would have been expected for someone active in the organisation since 2001.

6. In the course of the adverse credibility findings in that regard, the Tribunal made reference to information that had been located on a Facebook page, accessed on 30 October 2016 for BNP Australia and explored posts regarding recent events with the applicant. The Tribunal observed the applicant shifted his evidence and claimed to be aware of these events that had taken place and he had received messages on his phone. The Tribunal observed that if the applicant was genuinely involved with the BNP Australia he would have been able to speak without prompting as to its activities and programs in Australia.

7. Given the Tribunal’s concerns as to the applicant’s credibility, the Tribunal was not satisfied that much weight should be attributed to the letters of reference supplied by the applicant. The Tribunal referred to the photographs submitted by the applicant in relation to this alleged involvement in BNP Australia. The Tribunal found the applicant demonstrated in his evidence little insight or memory of the events that he claimed to participate in with the BNP Australia.

8. The Tribunal noted that in attempting to discuss and explore with the applicant the individual photographs, the applicant’s evidence was extremely vague and lacking in detail. The Tribunal observed in exploring the photographs with the applicant that the applicant evaded the Tribunal’s question about how many times he had attended Canberra. The Tribunal was not satisfied that he had attended on more than one occasion, particularly as the applicant appears wearing the same clothes.

9. The Tribunal found the applicant demonstrated overall limited insight into the events he claimed to be participating in. The Tribunal also observed that the applicant did not mention any association with BNP Australia at the hearing on 31 October 2016 until prompted by the Tribunal. The Tribunal found the applicant’s conduct in the photographs to be staged and was undertaken for the purpose of assisting his claim for protection.

10. The Tribunal identified cumulatively the credibility issues for the Tribunal of the applicant’s evidence being so significant as to undermine the entirety of the applicant’s claims. The Tribunal found the applicant manufactured activities with the BNP Australia for the purpose of obtaining a positive migration outcome. The Tribunal found that the applicant would not continue to be involved with the party if he returned to Bangladesh.

11. The Tribunal, on the evidence, found that the applicant was not a member or supporter of the Chaatra Dal or BNP or politically active for several years prior to his departure from Bangladesh. The Tribunal was not satisfied on the evidence that anything happened to the applicant for several years prior to his departure from Bangladesh.

12. The Tribunal made reference to the 20 years that had passed since the applicant had any political involvement in Bangladesh and did not consider the applicant’s student support for the Chaatra Dal would place him at any risk of harm.

13. The Tribunal made reference to accepting that the applicant had engaged in some activities with groups affiliated with the BNP in Australia. The Tribunal found the applicant had engaged in that activity for the purpose of his claim for protection and proceeded to consider whether due to this activity he would be perceived to hold views antithetic to the government and to be at risk for this reason. The Tribunal was not satisfied that the Awami League or anyone else in Bangladesh would have any knowledge of the applicant’s limited involvement in the BNP Australia such that there would be a real risk of the applicant facing significant harm.

14. The Tribunal made reference to the photographs taken on the applicant’s camera and the attempt to explore with the applicant the purpose of the photographs and the applicant consistently evading the questioning. The Tribunal was not satisfied that any photographs of the applicant at BNP events in Australia have been published.

15. The Tribunal also considered the risk of information by word of mouth or other means. The Tribunal then made reference to a Facebook page which it is accepted was accessed on 22 December 2016 after he second hearing before the Tribunal. The Tribunal made reference to that Facebook page indicating that a group calling itself Bangladesh National Party Australia has a total 137 people who “like” the page/organisation. The Tribunal proceeded with its reasoning and in this context the Tribunal was not satisfied that the applicant has a political profile that would place him at a real risk of significant harm.

16. On a fair reading, the context to which the Tribunal was referring related to the whole of the findings to which the Tribunal has earlier referred. The Tribunal proceeded to refer to the fact it could locate no country information to suggest that the Bangladeshi government were engaged in any monitoring of BNP or protest activities either in Australia or overseas in general. The Tribunal found it was not satisfied that the government of Bangladesh, the Awami League or anyone else has any interest in or monitors the activities the BNP Australia such that this would give rise to any risk of creating a profile for the applicant.

17. The Tribunal did not accept that if the applicant returns to Bangladesh, that his involvement with BNP Australia, or that his prior involvement with the Chaatra Dal, would place him at risk of significant harm. The Tribunal was not satisfied the applicant would have any significant political involvement on return to Bangladesh. The Tribunal found the applicant had demonstrated little insight into political events in Bangladesh or those involving the BNP.

18. The Tribunal also turned to the applicant’s claim that he left the country on a false passport. The Tribunal noted that the applicant now has a new Bangladeshi passport issued whilst he was in Australia. The Tribunal observed that this suggests that the Bangladeshi authorities have no adverse interest in him and, in particular, there are no outstanding police charges against him. The Tribunal did not accept that the applicant has a real risk of significant harm by reason of having allegedly left Bangladesh unlawfully.

19. The Tribunal then made reference to other country information. The Tribunal did not accept that the applicant would be involved in or campaign for the BNP in the future. The Tribunal was not satisfied on the material that the applicant’s circumstances, merely preferring the BNP over the Awami League, or having involvement in the Chaatra League two decades earlier, or having some BNP contacts in Australia, create, as a necessary and foreseeable consequence, a real risk of significant harm to the applicant on political grounds. The Tribunal was not satisfied that the contact the applicant has had with the BNP in Australia or any other factors elevate his profile such that there is a real risk that the applicant will be subjected to torture by government authorities or Awami League associates for reason of his BNP support or his previous activities. The Tribunal did not accept that the applicant’s support for the BNP and his prior activities will place him at real risk of cruel or inhumane treatment or punishment or degrading treatment or punishment.

20. The Tribunal made reference to the applicant being formerly a businessman and made reference to the skills that the applicant had obtained in acting and music, and was not satisfied that the applicant would return to his business if he returned to Bangladesh, and was not satisfied that his activity as a businessman would give rise to real risk of significant harm.

21. The Tribunal was not satisfied there were substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Bangladesh, that there is a real risk he will suffer significant harm for the reasons the applicant claimed or for any other reason.

22. The Tribunal found that the applicant failed to meet the criteria set out in s.36(2)(aa) and found that the applicant is not a person in respect of whom Australia has protection obligations on the grounds of complementary protection, and affirmed the decision under review.

Proceedings before this Court

Grounds of the application

1. The grounds in the amended application are as follows:

   GROUND ONE:

   The Tribunal breached section 424A of the Migration Act.

   Particulars

   The Tribunal has failed to put adverse information to the Applicant as per the procedures mandated by sections 424A or 424AA of the Migration Act, namely the Facebook page of the group calling itself the 'Bangladesh Nationality Party Australia' as cited at paragraph [44] of the decision.

   GROUND TWO:

   The Tribunal has asked itself the wrong question and/or made a decision so illogical that no reasonable person would have made it.

   Particulars

   The Tribunal has asked itself the wrong question by considering the claim by the Applicant to have left Bangladesh without a Passport by instead dealing with the proposition at paragraph [47] of the decision that the Applicant “now has a new Bangladeshi passport” and considering whether the Applicant therefore has “no outstanding police charges against him”.

Consideration

Ground 1

1. Mr Bodisco of counsel argued on behalf of the applicant that the Tribunal’s reference to the Facebook page accessed on 22 December 2016 was information enlivening an obligation under s.424A of the Act. It was common ground that this access occurred after the hearing date, and in respect of the content of the Facebook page referred to in terms of being an organisation calling itself Bangladesh National Party of Australia and having a total of 137 people who like the page/organisation, that there was no compliance with the requirements of s.424AA of the Act if that was information enlivening an obligation under s.424A.

2. Mr Bodisco argued that the reference to the 137 people liking the Facebook page and organisation was information used in a way that took it outside the scope of s.424A(3)(a). Mr Bodisco argued that the information was used in a way to undermine the applicant’s claim that he had a political profile by reason of his involvement in BNP Australia activities. The information referred to by the Tribunal in respect of the Facebook page is not information that negates, undermines, denies or rejects the applicant’s claims.

3. The information is not of the kind that enlivens any obligation under s.424A. Further, the information is of a kind that falls within the exception under s.424A(3)(a). I do not accept that the information was used in a fashion as if it was personally about the applicant.

4. The Tribunal’s reasons are not to be read with a keen eye for error. The reference in this context is a reference to the context of the findings made by the Tribunal in respect of the applicant’s credibility, including the observations made by the Tribunal in respect of the applicant’s belated raising of activities in Australia, his limited ability to explain the activities, and his role in the photographs in respect of which the applicant was evasive. No jurisdictional error as alleged in Ground 1 is made out.

Ground 2

1. In relation to Ground 2, Mr Bodisco contended that the ability of the applicant to obtain a current passport is not a matter that rationally or logically supports findings that the applicant is not of interest to the Bangladeshi authorities, and that there are no outstanding police charges against the applicant.

2. The assertion of the applicant that he had left on a false passport is the subject of the adverse credibility findings by the Tribunal and also the identified migration history of the applicant in which the applicant arrived in Australia on a Temporary Work (Entertainment) visa (Subclass 420). The observations by the Tribunal were the obtaining of a new passport suggests the Bangladeshi authorities had no adverse in him, and, in particular, that no outstanding police charges against him was an open observation by the Tribunal and cannot be said to lack an evident and intelligible justification.

1. That observation was neither unreasonable or irrational or illogical. The Tribunal’s reasons are not to be read with a keen eye for error. The finding of the Tribunal that the applicant does not face a real risk of significant harm for reason of allegedly leaving Bangladesh on a false passport was open to the Tribunal and was logical and reasonable. No jurisdictional error of the kind alleged in Ground 2 is made out.

Conclusion

1. For these reasons, the amended application is dismissed.

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

Date: 11 October 2017