SZTPJ v Minister for Immigration
[2015] FCCA 1992
•29 July 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZTPJ v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 1992 |
| Catchwords: MIGRATION – Application to review decision of Refugee Review Tribunal – Whether Tribunal erred in failing to make inquiries – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.91R(3), 424A, 426(2), 426(3) |
| Minister for Immigration and Citizenship v Li & Anor (2013) 249 CLR 332; [2013] HCA 18 Minister for Immigration and Citizenship v SZIAI & Anor (2009) 83 ALJR 1123; [2009] HCA 39 Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 Re Refugee Review Tribunal & Anor; Ex parte H & Anor (2001) 75 ALJR 982; [2001] HCA 28 SZTKV v Minister for Immigration and Border Protection [2014] FCA 903 |
| Applicant: | SZTPJ |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2995 of 2013 |
| Judgment of: | Judge Barnes |
| Hearing dates: | 23 October 2014, 13 November 2014, 4 December 2014 |
| Delivered at: | Sydney |
| Delivered on: | 29 July 2015 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The name of the Second Respondent be amended to read “Administrative Appeals Tribunal”.
The Application be dismissed.
| FEDERAL CIRCUIT COURT AT SYDNEY |
SYG 2995 of 2013
| SZTPJ |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for review of a decision of the Refugee Review Tribunal dated 7 November 2013. The Tribunal affirmed a decision of a delegate of the First Respondent not to grant the Applicant a protection visa.
The Applicant, a citizen of Bangladesh, arrived in Australia in May 2011. He applied for a protection visa in August 2011. In essence, the Applicant claimed to fear harm if he returned to Bangladesh because of his political opinion as a member of the Bangladesh National Party (the “BNP”) and his religion as Hindu.
He claimed that he joined the BNP in 2005 and was joint secretary of the BNP for a particular area from 2005 to 2011, although he also claimed he worked and lived in South Korea from 2006 to 2011.
The Applicant claimed he was attacked by the members of the Awami League (the “AL”) in 2006 and fled to Korea. He claimed he returned to Bangladesh in 2010 to see his sick mother in hospital, but did not return to his home town. He claimed that after he returned to Korea he heard that Muslim terrorists had assaulted his sister and that she had committed suicide as a result. He claimed that his father’s business was destroyed and that his brother was tortured after he reported the assault on his sister. He claimed the police would not help his family.
The Applicant claimed that he returned to Bangladesh in 2011. In his visa application the Applicant claimed that he was arrested by Rapid Action Battalion (“RAB”) officers in front of Mirpur Stadium, was released after his sister arranged payment and hid in Dhaka for a “few days” before leaving Bangladesh on 6 May 2011 for Korea. From Korea he came to Australia.
However, according to the delegate, at interview he claimed that he had been arrested by police officers at a World Cup Cricket quarter final between New Zealand and South Africa at the Sher-e-Bangla National Cricket Stadium, Dhaka on 25 March 2011. He presented a ticket in support of this claim and submitted photographs which purported to show him being arrested by police inside the stadium. He claimed that the AL had found out that he had gone to the cricket match and had sent the police to harass him. He claimed that he was released from police custody after payment of money. He claimed that the police had told him that there was a case pending against him.
The Applicant also claimed at the departmental interview that he had been involved in an incident on 8 April 2011 between police and BNP activists during a BNP conference he attended.
The Applicant also claimed that he was involved with the BNP in Australia and that he feared persecution on that basis.
In addition, the Applicant claimed that as a Hindu he had been discriminated against throughout his life by Muslims in Bangladesh.
The Applicant submitted a number of documents in support of his claims, discussed further below where relevant.
On 3 August 2012 a delegate of the First Respondent refused the application finding, on the basis of serious deficiencies, inconsistencies and implausibilties in the Applicant’s claims and testimony, that the Applicant was not a credible witness.
The Tribunal Review
The Applicant sought review by the Tribunal by application lodged on 6 September 2012. On 11 July 2013 the Tribunal wrote to the Applicant, inviting him to attend a Tribunal hearing on 12 August 2013. In his response to the hearing invitation, the Applicant asked the Tribunal to take oral evidence from a Mr Roy about the Applicant’s political involvement, persecution and religious problems. He described Mr Roy as his “political leader” and provided a Bangladeshi address and telephone number. He had previously provided a letter of support from Mr Roy on letterhead which described him as a member of the National Standing Committee of the BNP in Bangladesh.
The Applicant attended the Tribunal hearing with his migration agent. A transcript of the hearing of 12 August 2013 is in evidence before the Court as an annexure to the affidavit of Hervee Dupont Dejean, affirmed on 27 November 2014.
On 22 August 2013 the Tribunal wrote to the Applicant pursuant to s.424A of the Migration Act 1958 (Cth) (the “Act”), raising with him a number of issues for comment or response. The Applicant responded through his adviser, by letter dated 5 September 2013.
On 2 October 2013 the Tribunal wrote to the Applicant inviting him to a further hearing on 4 November 2013. In addition, the Tribunal advised the Applicant’s adviser that he should provide a written submission setting out all claims made and maintained by the Applicant by 28 October 2013 and a signed declaration from the Applicant accepting the accuracy and completeness of such submission. The adviser was also informed that if it was proposed that a witness give evidence at the further hearing, a witness statement should be provided or, if that was not possible, particulars should be provided of the evidence the witness was expected to address and how it was relevant to the case.
The adviser did not provide any written submission or signed declaration from the Applicant. Nor was any request made that evidence be taken from any witness at the second hearing. At the second hearing the Applicant provided the Tribunal with further evidence, including a letter from a psychologist and also a letter a said to be from his mother in relation to a land dispute and a corrected version of the response to the s.424A letter.
A transcript of the hearing of 4 November 2013 is also in evidence before the Court as an annexure to the affidavit of Ms Dejean.
The Tribunal Decision
On 7 November 2013 the Tribunal affirmed the decision not to grant the Applicant a protection visa. The Tribunal summarised the Applicant’s claims. It listed the documents he had provided in support of his claims. It recorded that he had appeared before the Tribunal on 12 August 2013. It referred to the country information and medical evidence he had provided and also to the s.424A letter and the response.
The Tribunal stated that it had had concerns in relation to the Applicant’s evidence and that it had wanted to explore the claims related to his family’s land in greater detail. Hence it had invited him to give evidence at the second hearing on 4 November 2013.
The Tribunal accepted that the Applicant was a citizen of Bangladesh. However it found that aspects of the information he had provided to the Department and to the Tribunal gave rise to concerns relating to the credibility and plausibility of his claims. The Tribunal explained that these concerns related to inconsistencies between the evidence the Applicant had presented to the Department and his evidence to the Tribunal and also inconsistencies in his evidence to the Tribunal, as well as the implausibility of aspects of his claims. It set out its “primary concerns” in some detail.
First, under the heading “Political Claims”, the Tribunal expressed what it described as “significant” concerns about the Applicant’s claim to have been arrested at a World Cup Cricket match on 25 March 2011 in light of inconsistencies between his written statement, his evidence at the departmental interview and at the Tribunal hearing in relation to the stage in the match at which he was arrested (whether it was just after the coin toss or part-way through the game), whether he was arrested inside or outside the stadium, whether he was arrested by the RAB or by police officers or both, and whether the match was delayed by rain.
The Tribunal observed that it had listened to a recording of the Applicant’s departmental interview. It was of the view that the Applicant’s evidence at that interview had been clear, and that he had claimed he had been arrested by police officers at around 6:00-6:30pm, which he said was just after the coin toss as the game had been delayed by rain. The Tribunal found that while there was significant discussion with the delegate in relation to this claim, the Applicant had been consistent and clear in his claims. However it had regard to independent evidence in relation to the cricket match in question which it found clearly showed that the game in question was not delayed by rain and was played during daylight.
The Tribunal found that the Applicant’s evidence about this claim at the Tribunal hearing was “markedly different” to his evidence at the departmental interview. At the Tribunal hearing he stated that he was arrested by police officers and RAB working together at 6:00 or 6:30 pm, but that this was in the middle of the cricket match and that there was no rain delay. The Tribunal observed that this evidence was also different to the Applicant’s written statement in support of his protection visa application (in which he had stated that he had been arrested in front of Mirpur Stadium by the RAB).
The Tribunal had raised these concerns with the Applicant, including in the s.424A letter. It had regard to his explanation that he was mistaken in his evidence as a result of his mental state. It acknowledged that he had provided a medical certificate stating that he was suffering from a major depressive disorder and that he was on medication which affected his ability to concentrate. However it also had regard to the fact that at the start of the Tribunal hearing the Applicant had expressly stated that the fact that he was on medication would not affect his ability to provide evidence.
The Tribunal also considered the Applicant’s claim at the hearing that his inconsistent evidence about his arrest was because he was “preoccupied by his difficulties” and therefore did not concentrate on the cricket match. However the Tribunal found that, given the clarity and the depth of the Applicant’s evidence to the Department and the significantly differing accounts of his arrest, it did not accept that he was merely mistaken in his evidence to the Department. Moreover, given his expressed passion for cricket, the Tribunal did not find it plausible that the Applicant would not notice for a period of three to four hours whether the match had started or not and whether it was delayed by rain or not. The Tribunal considered that the Applicant had fabricated his evidence in relation to the arrest.
Insofar as the Applicant claimed that he had initially been mistaken about whether the people who arrested him were RAB officers and subsequently claimed that both the police and the RAB were involved, the Tribunal did not draw any adverse conclusions from the inconsistency about who arrested the Applicant. However it considered that the other inconsistencies were so significant that it was not satisfied that the Applicant had been truthful in his account of this event and the claimed arrest.
The Tribunal also expressed concern about why the Applicant would attend a cricket match while he was in hiding. It found that his claim that his friends persuaded him to do so as he was in a very stressful and traumatic situation was unpersuasive, as it appeared to be very likely there would be security or a police presence at the match. It found that it did not appear credible that a person who was in hiding would attend such an event. However the Tribunal acknowledged that the Applicant had provided a ticket from the match in March 2011 and a photograph of himself at the stadium with what appeared to be police officers. In light of these pieces of evidence from March 2011, the Tribunal accepted that the Applicant attended a cricket match in Bangladesh as claimed. However, it did not accept that he was arrested there.
The Tribunal referred to the fact that the Applicant had also provided a FIR in relation charges against him and a statement of the officer in charge. However it considered country information about the ready availability of forged or fraudulently obtained documents and the level of corruption in Bangladesh. The Tribunal was of the view that the Applicant could have obtained these documents fraudulently and hence placed little weight on these legal documents and the photograph said to be of the Applicant being arrested.
Secondly, the Tribunal expressed concerns about the Applicant’s claims about his role in the BNP. It found that the claims in his written statement clearly suggested that he joined the BNP for protection sometime after he completed his HSC (which he did not finish until April or May 2006) after being tortured by Muslims who took things from his father’s shop. However at the Tribunal hearing he had claimed he had become active in the BNP at a young age and that he became “very” active in late 2005. He claimed he was appointed Joint Secretary in April or May 2005. The Tribunal found that these accounts of when the Applicant’s involvement with the BNP began were so inconsistent that it cast doubt on whether he was involved with the BNP at all.
In addition, the Tribunal found that the Applicant was still studying full time at High School and on his own evidence had not yet started being “very active” in the BNP at a time he claimed he was appointed Joint Secretary. The Tribunal did not find this credible. It did not accept the Applicant’s explanation that it was his close connection to Mr Roy that enabled him to be appointed Joint Secretary at a very young age. It found that the examples he cited of other persons in Bangladeshi politics who had achieved prominent roles at a very young age because of their familial connections were examples of members of the same family and that none appeared to be as young as the Applicant had been.
The Tribunal addressed the Applicant’s claim that he had been able to continue in his role as Joint Secretary even after he left Bangladesh and lived in South Korea from 2006 to 2011. The Tribunal found that this was not credible, as it appeared to be inconsistent with the Applicant’s description of the role of Joint Secretary (to attend meetings, print and publish posters, encourage local people to join, fill in when the secretary was absent and give guidance to workers under him). It did not appear to the Tribunal that any of these aspects of the role could be satisfied while the Applicant was in South Korea. It observed that when this issue was discussed with the Applicant at the hearing he had claimed that none of the positions had changed in ten years, that although his responsibility was less, he continued to correspond with the party and provide financial support while in Korea and that this, together with the ongoing support of Mr Roy, meant that he continued in the position. As it had discussed with the Applicant at the second hearing, the Tribunal did not accept that this evidence was credible as it was inconsistent with the Article of the BNP Constitution which stated that the role of Joint Secretary should be held for a period of two years. The Tribunal also found that this claim was inconsistent with the Applicant’s evidence that the role of Joint Secretary changed when he was elected in 2005.
The Tribunal continued:
21. In contrast to these concerns, the applicant has provided letters of support from Mr Roy (Member of the National Standing Committee) and Mr Uddin (Convenor of BNP [for a particular area]) which confirm the applicant’s position as Joint Secretary [for a particular region]. However, in light of the above information about the prevalence of fraudulent and forged documents, the Tribunal places little weight on these letters and does not consider that they overcome the Tribunal’s concerns. The letter from Mr Hossain (Convenor of BNP Australia) also refers to the applicant as Joint Secretary of [the particular area in Bangladesh]. However, he states that he has only known the applicant since the applicant’s arrival in Australia. Therefore, the Tribunal places little weight on this letter as evidence of the applicant’s activities in Bangladesh and does not consider that it overcomes the Tribunal’s concerns.
The Tribunal also had regard to concerns about the Applicant’s claims he attended a BNP conference on 8 April 2011. It noted that this event was during the time the Applicant claimed to have been in hiding at his uncle’s house after being released following his arrest. While he initially claimed that he stayed at his uncle’s house during this time and communicated with his party by telephone only, he subsequently “inconsistently” stated that he decided to attend the conference because he was Joint Secretary and was in Bangladesh. The Tribunal did not find this persuasive, having regard to the Applicant’s claims that he was in hiding as he was afraid he would be killed because of his political activities and the fact that he had previously been in South Korea for many years without any need to attend meetings. The Tribunal did not find it credible that the Applicant would choose to attend a high-profile conference because of a sense of duty. Insofar as he later claimed that he also secretly attended the party office as well as the conference, the Tribunal found that this was inconsistent with his earlier evidence that he only communicated with the party by phone while in hiding.
The Tribunal acknowledged that the Applicant had provided newspaper reports in relation to the conference and the ensuing violence between the BNP and the AL which had resulted in charges being laid. However it found that these reports did not refer to the Applicant. While the Tribunal accepted that the conference occurred, it placed little weight on these reports as evidence of the Applicant’s involvement with the conference. The Tribunal considered a letter from a named advocate about charges said to have been laid against the Applicant, an FIR report and a statement of an officer in charge in which the Applicant was named as involved in the violence. However, in light of country information it had referred to in relation to the prevalence of fraudulent and forged documents in Bangladesh and the extent of corruption, the Tribunal placed little weight on these documents in support of the Applicant’s claim that there were false charges outstanding against him in Bangladesh.
In addition, the Tribunal found the Applicant’s evidence about where and for how long he had been in hiding was inconsistent. In his written statement the Applicant had claimed that after he was released he hid “in Dhaka” for “a few days” and departed Bangladesh on 6 May 2011. However at the Tribunal hearing the Applicant had claimed he had been in hiding at his uncle’s house from his release on 25 March 2011 until his departure from Bangladesh on 6 May 2011. He also claimed that his uncle’s house was some 60 or 70 kilometres from Dhaka. The Tribunal considered, but did not accept, the Applicant’s explanation for those inconsistencies. In particular, the Tribunal considered that there was a significant difference between being in hiding for a few days and for over a month, which could not be explained solely by language difficulties. This raised concerns for the Tribunal about whether the Applicant was in hiding as claimed.
The Tribunal also found that the Applicant’s evidence in relation to his return to Bangladesh in 2009/2010 was inconsistent, in particular as to whether he had just stayed by his mother’s side in hospital for a few days and had not seen any other family members or relatives or whether he had taken her to his uncle’s home where he remained until he returned to South Korea.
Finally, the Tribunal found that the Applicant’s claims in support of his protection visa application that he had been physically attacked before he joined the BNP were inconsistent with his evidence at the Tribunal hearing that he was attacked in 2006, by which time he was already Joint Secretary within the local BNP. The Tribunal had regard to the fact that the Applicant had not referred to a 2006 attack at the departmental interview and only raised this claim at the Tribunal hearing when the Tribunal asked him why a supporting letter from a Mr Uddin referred to him having been physically attacked. The Tribunal did not accept the Applicant’s explanation for this inconsistency. It found that the Applicant’s failure to raise this claim earlier and the inconsistency between his written and oral claims raised doubts about whether the Applicant had been attacked as claimed.
The Tribunal acknowledged that the Applicant had provided two medical certificates which referred to him having pain in his right hip and back, but observed that these did not provide any history about his injuries or opinion about what caused the pain or the nature or severity of the injuries. In these circumstances it placed no weight on these medical certificates in support of the Applicant’s claims to have been attacked in Bangladesh.
The Tribunal observed that there were other items of information and inconsistencies it had put to the Applicant in the s.424A letter and at the hearing. However it accepted that no witness’ evidence would be entirely consistent. In addition, in light of the psychologist’s report, it accepted that the Applicant was on medication and suffering from a depressive mental condition which may have affected his ability to concentrate on occasions (despite his evidence to the contrary at the hearing). The Tribunal stated that it had drawn no adverse conclusions from those other inconsistencies and accepted the explanations provided by the Applicant. However it was not satisfied that the Applicant’s depression or medication could explain the concerns detailed in its decision.
The Tribunal concluded that in light of these concerns it was not satisfied that the Applicant was a credible witness. It was not satisfied that the Applicant was involved with the BNP in Bangladesh; that he held any position with it; that he was attacked, threatened, or subject to extortion by the AL; that his brother or sister had been attacked by the AL; that his family’s shop or business was destroyed by the AL as a result of his political opinion or activities; that any false charges had been laid against him in Bangladesh; or that he was arrested or detained in Bangladesh.
The Tribunal acknowledged that the Applicant had provided a letter of support from the Chairman of Konda Union Parishad, stating that the Applicant was of good moral character. However it observed that this letter did not refer to the Applicant’s protection visa application or claims. The Tribunal found that this letter did not overcome its concerns in relation to the Applicant’s credibility.
While the Tribunal had some concerns about the evidence the Applicant provided concerning his relationship with Dr Yunus (which he claimed was intended to show he was from a wealthy influential background), it was willing to accept that he knew Dr Yunus, but did not have a close relationship with him. However the Tribunal did not consider that this overcame its concerns in relation to the Applicant’s credibility.
The Tribunal also had regard to the letter of support from the Convener of the Bangladesh Jatiaotabadi Dal. Australia (“BJD”) in Australia in relation to the Applicant’s claims about his activities in Australia. The Tribunal observed that while the letter stated that the Applicant had joined the BNP in Australia, it gave no information about what role the Applicant played or how active he was in BNP in Australia. Moreover, while the letter stated that the Applicant faced a “life threatening problem in Bangladesh at the moment”, it did not suggest this was a result of his activities in Australia. The Tribunal had regard to the fact that at the first Tribunal hearing, the Applicant had said he did not do much in Australia for the BNP, but attended meetings and discussed what was happening in Bangladesh and that when the “home minister” visited Australia they had held a protest. At the second Tribunal hearing the Applicant had also stated that his family was not aware of his activities in Australia, but that two of his BNP colleagues were, that he did not hold a position within the BNP in Australia but that they were planning that he may do so in the future. The Tribunal was willing to accept that the Applicant had joined the BNP in Australia, but did not consider that there was any evidence to suggest that the Applicant’s activities with the BNP in Australia would be known to the AL in Bangladesh or would cause him any difficulties in Bangladesh.
In light of its findings in relation to the Applicant’s credibility and lack of political involvement in Bangladesh, the Tribunal found that the Applicant’s involvement with the BNP in Australia was solely for the purpose of strengthening his claim to be a refugee within the meaning of the Refugees Convention and it therefore disregarded that conduct in accordance with s.91R(3) of the Act. It was not satisfied that the Applicant had any genuine interest in the BNP or that he would participate in the BNP or its related activities if he returned to Bangladesh.
Under the heading “Religious Claims”, the Tribunal accepted that the Applicant was a Hindu. It discussed country information in relation to the situation for Hindus in Bangladesh. It considered the Applicant’s claim that when he was growing up he saw Muslims taking things from his father’s shop and not paying for them and that his father had no recourse; and that after his father died (and before 2006) threats were directed at him asking him to pay money because of the family business. The Tribunal observed that the Applicant had not referred to this claim in his written statement when discussing difficulties the store had with Muslims. It found that the claim was not credible. It had regard to the fact that at the time in question the Applicant was still in school and that his uncle was running the shop. The Tribunal was of the view that if there had been extortion demands they would have been directed towards the Applicant’s uncle, rather than the Applicant. Insofar as the Applicant had claimed at the Tribunal hearing that the threats were directed at him because he was politically active, the Tribunal had regard to its finding that he was not involved in politics as claimed. In light of its credibility findings and concerns about this claim, the Tribunal was not satisfied that the Applicant was subject to extortion or death threats while in Bangladesh as claimed.
Having regard to country information, the Tribunal was willing to accept that Muslims may have taken things from the father’s shop without paying for them. However it was not satisfied that this would constitute serious harm, having regard to the fact that the Applicant’s father appeared to be a wealthy and successful businessman with land and property.
The Tribunal was not satisfied, on the evidence before it, that the Applicant had suffered serious harm as a result of being a Hindu in the past or that he would suffer serious harm if he were to return to Bangladesh now or in the reasonably foreseeable future as a result of his religion.
Under the heading “Land Claims”, the Tribunal considered a claim that had been raised by the Applicant at the end of the first Tribunal hearing. He claimed he feared returning to Bangladesh because the AL was trying to take over the family shop and make it into the AL office, and that to achieve these ends the AL had told people that they had bought the land from the Applicant. He feared they would kill him for his land. The Tribunal had explored this claim further at the second hearing, when the Applicant presented a letter from his mother stating that the AL leader had occupied the family land and had told the local people that the AL had purchased it. His mother claimed she tried to go to the police, but that they would not take her case and that she thought the AL would kill the Applicant because of this if he returned.
The Tribunal did not find the Applicant’s evidence in relation to this claim to be credible. It had regard to the fact that at the first hearing he claimed his mother had told him that the AL was trying to make the family shop into the party office and occupy the land, whereas at the second hearing he had stated that the shop and home were located on separate pieces of land and that the AL was targeting the home although they may in future want to target the shop.
Furthermore, when asked at the second hearing (in November 2013) when he had found out about this, the Applicant had stated that it had been about a month earlier. The Tribunal found that this was inconsistent with his evidence at the 1 August 2013 hearing that his mother had already told him that the AL wanted the family’s shop and land. The Tribunal did not find the Applicant’s explanation for this inconsistency persuasive.
Finally, the Tribunal did not find it credible that the AL would want to kill the Applicant if he returned to Bangladesh because of the land, but had taken no action in Bangladesh against his brother (who also legally owned the land) or his mother (who had tried to take action by going to the police).
In light of the timing of this claim, the inconsistencies in the Applicant’s evidence and the Tribunal’s general concerns about his credibility, it was not satisfied that the AL was trying to take over the family shop or land or would harm the Applicant in order to do so. It was not satisfied there was a real chance the Applicant would be persecuted because of his family’s land in Bangladesh. The Tribunal considered the letter provided by the Applicant’s mother. The letter was not dated or signed and contained no contact details and therefore the Tribunal placed little weight on it. It considered that it did not overcome its concerns.
The Tribunal also addressed the Applicant’s Refugee Convention claims relating to the general situation in Bangladesh in particular general instability and generalised violence as a result of the upcoming elections. The Tribunal had regard to country information in relation to increasing political violence in Bangladesh, but found that it did not appear to be targeted at Bangladeshi citizens who were not involved in politics. The Tribunal found that the chance of the Applicant being harmed as a result of such generalised violence in Bangladesh was remote.
The Tribunal concluded that, having considered the Applicant’s claims individually and cumulatively, it was not satisfied that there was a real chance he would suffer persecution because of his political opinion, religion or for any other reason if he returned to Bangladesh now or in the reasonably foreseeable future.
The Tribunal considered the complementary protection criterion. It referred to the fact that for the reasons given it had found the Applicant was not a credible witness and that it was not satisfied that he was involved with the BNP in Bangladesh, attacked, harassed arrested or threatened or that his family was harmed as a result of his political activities or that he was of any adverse interest to the authorities.
The Tribunal had regard to the Applicant’s activities and involvement with the BNP in Australia, but for the reasons given was not satisfied the Applicant engaged in those activities out of any genuine political beliefs. The Tribunal also found that there was no evidence to suggest that the AL was aware of the Applicant’s involvement with the BNP in Australia or that, even if they were, this would result in him being of adverse interest to them. The Tribunal was not satisfied that the Applicant had any genuine interest in the BNP or that he would be involved in any political activities if he were to return to Bangladesh. It 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 there was a real risk he would suffer significant harm.
In addition, for the reasons discussed, the Tribunal was not satisfied that the Applicant had experienced significant harm in the past as a Hindu. On the basis of country information before it the Tribunal was not satisfied that the Applicant met the criterion for complementary protection because of his religion.
In relation to the Applicant’s claims about the family land, the Tribunal referred to the fact that for the reasons discussed it was not satisfied that the AL was trying to take over the family shop or land or would harm the Applicant in order to obtain the family land. Hence it was not satisfied he met the complementary protection because of this claim.
The Tribunal also recorded that, for the reasons discussed earlier in its reasons, it had found there was not a real chance the Applicant would be harmed because of generalised violence in Bangladesh for the same reasons the Tribunal was not satisfied there was a real risk the Applicant would be harmed because of generalised violence in Bangladesh.
The Tribunal was not satisfied the Applicant was a person in respect of whom Australia had protection obligations under the complementary protection criterion.
The Tribunal affirmed the decision not to grant the Applicant a protection visa.
Current Proceedings
The Applicant sought review by application filed in this Court on 2 December 2013. There are four grounds in the application. The Applicant did not file written submissions prior to the hearing. However when the matter came before the Court for hearing on 23 October 2014, he filed written submissions in Court addressing the grounds in his application. In addition he raised, for the first time, a claim that during the second Tribunal hearing, he “challenged” the Tribunal to verify documents he had submitted (in particular those signed by BNP leaders) with the High Commission and also with the people who had signed the documents. He claimed that the Tribunal had not responded to this “challenge”.
Notwithstanding that the Applicant had not filed a transcript of the Tribunal’s hearing, in these circumstances I considered it appropriate to allow the Applicant to tender the compact disc of the Tribunal hearing, provided he identified the part of the hearing in which he had the discussion with the Tribunal to which he referred.
Subsequently he filed an affidavit to which a compact disc was attached, which he said related to “Day 2 of the Tribunal hearing.” He identified three occasions during the hearing on which he claimed he had asked the Tribunal to make an inquiry about the genuineness of his submitted documents. As discussed below, I have considered whether this evidence supports any contention of jurisdictional error.
At the resumed hearing parts of the hearing tape were played. In the second part of the hearing relied on by the Applicant, the Tribunal informed the Applicant that while he had said (in the response to hearing invitation form) that he would like the Tribunal to take evidence by telephone from Mr Roy, the Tribunal member did not intend to do so, because she had no way of knowing to whom she was speaking.
However the Tribunal member also informed the Applicant that the Tribunal was aware that he had already provided a statement or letter from Mr Roy and that the Tribunal was happy to take any further statements or evidence (Transcript, p.47 at lines 44-47):
MEMBER: You have said here that you would like me to take evidence by phone from Mr Roy. I don't intend to do that because I have no way of knowing who I’m speaking to. So I know that you’ve provided a statement from him, or a letter from him, and I’m happy to take any further statements or evidence that you would like me to.
The Tribunal member also informed the Applicant that if she was not going to make a positive finding based on evidence he had already provided, she would write him a letter which would give him an opportunity to submit any extra evidence (Transcript, p.47 at lines 34-35 and p.48 at lines 1-3):
MEMBER: I said at the beginning of the hearing that I don’t make decisions today. So I want to take away all the evidence and consider it further. …
…
MEMBER: But, as I said, if I’m not going to make a positive finding based on evidence you’ve already provided then I will write to you a letter which will give you a date … which will also give you an opportunity to submit any extra evidence.
In light of the fact that the Applicant claimed the recording was of the second Tribunal hearing held on 4 November 2013 and the Tribunal decision was made on 7 November 2013 (without any intervening communication with the Applicant), I raised with the solicitor for the Minister the question of whether the Tribunal’s apparent failure to write to the Applicant after the second hearing was indicative of jurisdictional error. The hearing was again adjourned.
Subsequently the solicitors for the First Respondent filed an affidavit of Ms Dejean affirmed on 27 November 2014 to which were annexed transcripts of the Tribunal hearings of both 12 August 2013 and of 4 November 2013.
When the matter came back before the Court, the Applicant accepted that such transcripts could be relied upon as an accurate record of what was said in English at each of the hearings. He acknowledged that the portions of the transcript identified in Ms Dejean’s affidavit as corresponding with the parts relied on by him were the relevant portions of the Tribunal hearings.
I am satisfied on the basis of the evidence now before me, including the transcripts of the Tribunal hearings, that the hearing referred to by the Applicant, including the exchange in which the Tribunal undertook that it would write to the Applicant if it was not going to make a positive finding on the evidence before, was the first hearing which was conducted on 12 August 2013.
I note first that it is clear that after the first hearing the Tribunal did precisely what it said it would do, in that on 22 August 2013 the Tribunal wrote to the Applicant pursuant to s.424A of the Act, inviting him to comment on or respond to several items of information.
Furthermore, after receiving the Applicant’s response of 5 September 2013, the Tribunal invited him to appear before it for a further hearing to give evidence and present arguments relating to the issues arising in relation to the decision under review. Thus the Tribunal gave the Applicant the opportunity referred to in the first hearing (Transcript, p.47). No issue of possible jurisdictional error arises in this respect.
Whether the Tribunal was under an obligation to make inquiries
After the First Respondent filed the affidavit to which the transcripts of the two hearings were annexed, the Applicant acknowledged that the issues he raised in support of the proposition that the Tribunal was under an obligation to make inquiries were based on what he said to the Tribunal during the first hearing.
The first part of the first hearing relied on by the Applicant in this respect is at p.45 of the Transcript of the hearing of 12 August 2013. After the Applicant explained that he had provided evidence about Dr Yunus to demonstrate that he was from a rich, influential and popular family and knew Dr Yunus, the hearing continued (Transcript, p.45 at 24-34):
APPLICANT [THROUGH INTERPRETER]: I am not a lower‑class person who is planning to come here. So please consider the things. I will verify the documents, and give me a decision.
MEMBER: Country information states that fraudulent documents are very common on Bangladesh.
APPLICANT: He is a – I mean, member of the standing committee of BNP. This – that I was arrested by police. I submitted this picture, and the newspaper incidents are there. That was another case. Then my sister died, but we ..... medical certificate. That I was a general secretary, my ..... that – that I joined in Australia. Also the letter that was here. How many evidence do you need to prove that?
The Transcript indicates that at line 25 the Applicant said, “I will verify the documents”.It is not clear why the Applicant would make such a remark. It appears from the recording of the hearing that he may have asked “Please verify the documents and give me a decision”.
The Applicant relied on this part of the hearing as an indication of an instance of a request to the Tribunal to verify documents. However, at its highest, on the assumption that the Applicant did ask the Tribunal to “verify the documents”, this was no more than a generally expressed request. The Applicant did not ask the Tribunal to make any particular inquiries. It is apparent from what the Applicant went on to say that his concern was the Tribunal’s consideration of the genuineness of the letters and other documents he had provided to establish his claims. He asked the Tribunal, in effect, what evidence it needed “to prove his claims” after the Tribunal member had indicated to him that country information indicated that fraudulent documents were very common in Bangladesh (Transcript, p.45 line 34).
It is the case that French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ accepted in Minister for Immigration and Citizenship v SZIAI & Anor (2009) 83 ALJR 1123; [2009] HCA 39 at [25] that:
…It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review…
However there is no general duty to inquire (SZTKV v Minister for Immigration and Border Protection [2014] FCA 903 at [25]). The circumstances of this case, including the exchange between the Applicant and the Tribunal set out above from p.45 of the Transcript of the first hearing, are not such as to establish that the Tribunal was under an obligation to make inquiries to “verify” the genuineness of all the supporting documentation submitted by the Applicant as appears to be contended. The Tribunal was not obliged to accept the genuineness of such documents. The circumstances before the Tribunal were not such as to indicate that there was a critical fact, the existence of which was easily ascertained, such that the Tribunal’s failure to make inquiries about the existence of that fact constituted a failure to review. Insofar as the Applicant may have intended to suggest that the Tribunal should have made or instituted calls to the persons whose telephone numbers were shown on letters of support, as in SZIAI at [26], the question of whether such documents contained false statements (for example, about the Applicant’s involvement in the BNP) “would not be able to be determined by calls placed to those telephone numbers”.
Moreover the Tribunal gave the Applicant the opportunity to provide further statements or evidence from any witnesses (including Mr Roy) or other additional evidence after the first Tribunal hearing. It had raised with him its concerns, including about the genuineness of his documents, inconsistencies in his evidence and the credibility of some of his claims.
Having regard to the numerous significant issues of concern in relation to inconsistencies and implausibility in the Applicant’s claims it was open to the Tribunal to place weight on the adverse view which it reached in relation to the Applicant’s oral and written account of his claims and to place no weight or little weight on the supporting documents, finding that they did not overcome the Tribunal’s concerns (see SZTKV at [24] – [25]). This exchange at the Tribunal hearing is not indicative of jurisdictional error, or such as to give rise to an obligation on the part of the Tribunal to inquire, either considered alone or in conjunction with the other parts of the hearing discussed further below.
The second part of the first hearing relied on by the Applicant in support of the proposition that he asked the Tribunal to make inquiries is at p.48 of the Transcript. The Applicant responded to a question from the Tribunal as to whether he wanted to say “anything”. In order to understand his response, it is relevant to set out the prior remarks of the Tribunal (at Transcript p. 47, line 34 to Transcript p. 48, line 14) in which the Tribunal indicated it would write to the Applicant after the hearing if it had concerns and addressed the issue of taking telephone evidence from Mr Roy. As outlined above, the Tribunal stated:
MEMBER: I said at the beginning of the hearing that I don’t make decisions today. So I want to take away all the evidence and consider it. I do have some concerns about some inconsistencies in your evidence. Um, and also the credibility of some of some of the claims, for example, about the age that you became Joint Secretary and your role within the BNP. Um, what that means is that one of two things will happen after the hearing. If having reviewed the evidence I think that I can make a positive finding, then you will just receive my decision. If I still have some concerns then I will write to you in a letter inviting you to comment on certain…. And following your answers to those concerns I will make my decision.
You have said here that you would like me to take evidence by phone from Mr Roy. I don’t intend to do that because I have no way of knowing who I’m speaking to. So, um, I know that you’ve provided a statement or a letter from him. And I’m happy to take any further statements or evidence you want me to. But as I said if I am not going to make a positive finding based on evidence you have already provided then I will write you a letter which will give you a date which will also give you an opportunity to submit any extra evidence. Did you want to say anything?
The Applicant relied on his response (at Transcript p.48, lines 6-14), which was:
APPLICANT (through interpreter): The inconsistency that you are talking about I may be wrong or made mistake in stating that the documents I gave… that I’m going to doctor for my physical things… and for nine months I’m taking medicine. I cannot say all I want to say. That maybe some inconsistencies are because I cannot remember things. My documents are maybe… I give evidence inconsistent because when I think about my family and my situation… I get myself lost, I’m not in myself. And there today I’m seeing that I’m losing my memory…Day after day I see that I am losing my memory. …he is senior vice chairperson of the BNP, because his mother is the prime minister – was the prime minister.
Contrary to the Applicant’s submission, there is nothing in this part of the transcript to indicate that the Applicant asked the Tribunal to make any enquiries about the genuineness of his submitted documents. Nor does this exchange support any contention that the Tribunal’s failure to make inquiries supplied a sufficient link to the outcome to constitute a failure to review.
For the sake of completeness, I note that insofar as in this part of the Tribunal hearing the Applicant raised his medical condition and the fact that he had been taking medicine, in its reasons for decision the Tribunal accepted that the Applicant was on medication and suffering from a depressive mental condition which may have affected his ability to concentrate, but did not accept that this could explain the particular concerns it had detailed in the decision. Beyond those matters referred to in its findings and reasons, the Tribunal drew no adverse conclusions from other inconsistencies put to the Applicant in the s.424A letter and at the hearings. I also note that when asked if he was on medication that may affect his evidence, memory or concentration at the first hearing the Applicant had indicated (Transcript, p.6) that he had not taken any medication that day. There is no claim or evidence that the Applicant was not fit to participate in either hearing.
I have also considered the fact that the Applicant had, in his Response to Hearing Invitation Form, given written notice that he wanted the Tribunal to take evidence from Mr Roy (see s.426(2) of the Act).
The Tribunal was not required to obtain such evidence, but must have regard to the Applicant’s wishes (s.426(3)). In accordance with the principles considered in Minister for Immigration and Citizenship v Li & Anor (2013) 249 CLR 332; [2013] HCA 18 the Tribunal must exercise such discretion reasonably.
The exchange in the first hearing shows that the Tribunal had regard to the Applicant’s wishes. The Tribunal Member explained that she did not intend to take oral evidence by telephone on the number provided (as the Applicant suggested) as she had no way of knowing to whom she was speaking. However she expressed a willingness to take any further statements or evidence from Mr Roy.
Moreover, the Tribunal subsequently advised the Applicant, through his migration agent, that if he was proposing that a witness give evidence at the second hearing, he should provide a witness statement setting out the witness’ evidence by a specified date and if a witness was unable to adopt or sign such a proposed witness statement, particulars of the evidence the witness was expected to address and how it was relevant to the case should be provided by that date.
In this way the Tribunal addressed the Applicant’s concern that it had not tried to take evidence from Mr Roy at the first hearing. It has not been established that it acted unreasonably in exercising its discretion in this regard. It considered the request. There was an evidence and intelligible justification for the approach it took. No failure to comply with s.426(3) of the Act has been established.
The Applicant did not provide any further written submission or supporting statutory declaration. Nor did he make any further request to the Tribunal to take evidence from any witnesses or provide any witness statement or particulars. The Applicant attended the second hearing on 4 November 2013. No issue is now taken by the Applicant with anything said or done by the Tribunal at the second hearing.
The last part of the transcript relied on by the Applicant is on p.48 of the Transcript of the first Tribunal hearing of 12 August 2013 (at lines 34-40). This exchange occurred after the Applicant, in further response to the Tribunal’s invitation to him to “say anything”, provided what appeared to be intended to be an explanation for how he had obtained the position of Joint Secretary in the BNP and held that position from 2005 to 2011, including while he was living in South Korea (Transcript p.48, lines 12-34).
In this context, the Applicant referred to other people who had obtained positions of influence through connections. He claimed he was very active from a young age and eventually in a good position, so he easily obtained the position. He claimed that if you had money in Bangladesh people would give you extra importance. He also claimed that for the last ten years there had been no elections and that the same committees had existed. The Applicant then explained (Transcript, p.48 at lines 32-38):
City council, chairman member, there were last five years and new five years. There was no formation of new committee and as a result, I continued, and I also gave financial support to the party while I was…so kindly consider my situation. I may be mistaken in one or two places, but please consider my situation, and deeply research the things and if you have any doubt you can – if you cannot call – or do not want to call…you can use somebody from your embassy and talk about me and ask about me, and then if you don’t trust me…
(Emphasis added)
The Tribunal then asked the Applicant’s adviser if there was anything he wanted to say. In response, the adviser referred to the fact that the Applicant had submitted documentation about his role in the BNP and took issue with independent country information in relation to the existence of fraudulent documents in Bangladesh. He also provided an explanation about Bangladeshi legal proceedings in support of the Applicant’s claim that he had been arrested. He addressed the political situation in Bangladesh.
This part of the Transcript does provide some support for the Applicant’s contention that he asked the Tribunal to make an inquiry. However he referred generally to the fact that the Tribunal could call or use someone from the Embassy to “ask about” him. Contrary to his submissions he did not ask the Tribunal to verify documents, whether with the signatories or otherwise.
The Applicant did not ask the Tribunal to institute a specific inquiry through the Embassy or High Commission or to make an inquiry to a particular organisation or to any particular person. It is clear that the Tribunal did not undertake to make any inquiries.
I have considered whether this exchange, together with the other evidence before the Court, including the other parts of the Transcript relied upon by the Applicant, is such as to establish that the Tribunal fell into jurisdictional error by failing to make an inquiry about a critical fact, the existence of which was easily ascertained.
The Applicant’s request that the Tribunal consider his situation, notwithstanding that he may be mistaken in one or two places and deeply research things, and his suggestion that if the Tribunal had any doubt it “can use someone from [the] embassy to talk about [him] and ask about [him]” was not such as to give rise to an obligation on the Tribunal to embark upon an inquiry through an Australian High Commission or Embassy about him or as to whether the documents submitted by him or his claims were genuine or not (SZTKV at [25]).
The Tribunal rejected the Applicant’s credibility for reasons relating to matters other than the genuineness of his supporting documents. It has not been established that there was a critical fact “the existence of which is easily ascertained” with a sufficient link to the outcome that the Tribunal’s failure to inquire could be said to constitute a failure to undertake the statutory duty of review or that it was otherwise unreasonable in the sense referred to in SZIAI at [26]. It has not been established that the Tribunal fell into error by failing to make inquiries.
More generally, the Tribunal brought to the Applicant’s attention its concern about his claim to be Joint Secretary within the BNP in Bangladesh. While the Tribunal member had indicated that she was not prepared to telephone the telephone number the Applicant had provided for Mr Roy (as she would have no way of knowing to whom she was speaking), the Member had also addressed issues of procedural fairness in her indication that she would raise issues of concern with the Applicant after the hearing and would give him the opportunity to provide further statements or evidence (whether from Mr Roy or extra evidence of some other form). As outlined above, the Tribunal sent a s.424A letter to the Applicant and gave him the opportunity to provide evidence from witnesses at a second hearing.
Having regard to all of the circumstances, in particular the generality of the Applicant’s suggestions to the Tribunal, the absence of identification of the manner in which any critical fact could be easily ascertained and the absence of any undertaking by the Tribunal to inquire, I am not satisfied that the Tribunal failed to make an obvious inquiry about a critical fact the existence of which was easily ascertained, or, as was described in SZTKV at [25] per Siopis J, that it failed to make a “simple inquiry which [was] open to make” such as to constitute jurisdictional error.
Moreover in its reasons for decision the Tribunal set out its concerns in detail, including inconsistencies about when the Applicant’s claimed involvement with the BNP began; the lack of plausibility in his claim that he was appointed Joint Secretary at a time when he was studying full-time in high school and before the time he claimed to have started being very active in the BNP; and whether it was credible or plausible that he had been able to continue in the role as Joint Secretary after he left Bangladesh and lived in South Korea from 2006 to 2011. The Tribunal made comprehensive adverse credibility findings based on the concerns it detailed. It was open to it to place weight on its adverse view of the Applicant’s inconsistent and implausible evidence and to place little weight on documentary evidence intended to support his claims (SZTKV at [24]).
The grounds in the Application
Ground 1 in the Application is a contention that the Tribunal failed to assess the Applicant’s credibility in terms of the Act. The Applicant submitted that the Tribunal failed to maintain an open mind or to be mindful of the issues raised in the material before it when undertaking its assessment of the credibility of his claims. In particular, it was submitted that the Tribunal’s s.424A letter made it apparent that the Tribunal had made up its mind.
The part of the Tribunal’s s.424A letter relied on in this respect referred to the fact that at the departmental interview the Applicant had described his brother and sister as being older than him (contrary to their birth certificates and the dates of birth provided). When the delegate questioned him about why he would describe his younger brother as his older brother, he had stated that this was because the brother was described as his older brother in the file (and it was a slip of the tongue). The s.424A letter continued:
The information above is relevant to the review because in your written statement you describe your brother and sister as being older than you but the birth certificates and dates of birth provided show that they are younger. Your statement at the Departmental interview suggests that your brother is not the age you have described. It is also relevant because the Tribunal does not accept that you would incorrectly describe your brother as being elder to be consistent with a mistake in your written application.
The Applicant’s written submission in this respect mirrors the response to the s.424A letter. It was submitted that the Tribunal’s statement that it “did not accept” the reason the Applicant gave for incorrectly describing his brother as being older (to be consistent with a mistake in his written application) indicated that the Tribunal had already made up its mind.
In addition, in oral submissions the Applicant took issue with the fact that he had submitted various documents to the Tribunal and that the Tribunal had failed to accept his claims. He also submitted that the fact that the Tribunal decision was made only four days after the second Tribunal hearing indicated that the Tribunal had already made up its mind.
An allegation of bias must be distinctly made and clearly proved. In this case it has not been established that there was actual bias in the sense of prejudgment on the part of the Tribunal so committed to a conclusion already formed as to be incapable of alteration whatever evidence or arguments may be presented (see Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 at [69] and [72]). Nor is apprehended bias, considered from the perspective of the hypothetical fair-minded lay person properly informed as to the nature of the proceedings, the matters in issue and the conduct said to give rise to an apprehension of bias established (see Re Refugee Review Tribunal & Anor; Ex parte H & Anor (2001) 75 ALJR 982; [2001] HCA 28 at [28]).
It is notable that, consistent with the wording of s.424A of the Act, the s.424A letter commenced by explaining to the Applicant that the letter was an invitation to comment on or respond to certain information which the Tribunal considered would, “subject to [the Applicant’s] comments or response”, be the reason or part of the reason for affirming the decision under review. It explained that the Tribunal had not made up its mind about the information.
The Tribunal’s reference to the fact that it “does not accept” the explanation previously provided by the Applicant for describing his younger brother as his older brother was an explanation for the Tribunal’s credibility concerns about the information on which the Applicant’s comment was invited. In isolation, it was not such as to establish either actual or apprehended bias. Moreover, after the Applicant responded to the s.424A letter (again explaining that he made a slip of the tongue when he tried to say that his brother was younger, that there was a typing mistake in his protection visa application and pointing out that to correct this mistake he had provided all of his siblings’ birth certificates to the Tribunal) the Tribunal invited the Applicant to a second hearing and gave him the opportunity to provide additional evidence.
In its reasons for decision, not only did the Tribunal not rely on this aspect of the information put to the Applicant in the s.424A letter or its concerns about his explanation, in its reasons for decision the Tribunal accepted that no witness’s evidence would be entirely consistent and that the Applicant was on medication and suffered from a depressive mental condition which may have affected his ability to concentrate on occasions. The Tribunal drew no adverse conclusions from inconsistencies other than those detailed in its reasons for decision. This would include this particular aspect of the information put to the Applicant for comment.
Insofar as a more general allegation of bias is made by the Applicant on the basis of the Tribunal’s failure to accept his claims in circumstances where he provided corroborative evidence, it is for the Tribunal to assess the evidence provided and to give such weight to that evidence as it considers appropriate. In this case the Tribunal gave detailed reasons for rejecting the Applicant’s claims and for placing little weight on documents he provided that were intended to corroborate his claimed activities in Bangladesh.
The Tribunal considered all of the documents provided by the Applicant. It placed little weight on some documents. It found that others did not relate to the Applicant’s protection visa claims or did not overcome its concerns in relation to the Applicant’s credibility. The Tribunal was of the view that medical certificates did not provide any history about injuries, or opinion as to what caused injuries, or evidence as to the nature or severity of the injuries and in light of this placed no weight on them in support of the Applicant’s claims to have been attacked in Bangladesh. It accepted the veracity of the letter of support from the convenor of the BNP in Australia, but noted the limitations on what was contained in that letter and the fact that the writer had only known the Applicant since his arrival in Australia.
The Tribunal’s approach to the Applicant’s credibility, on the basis of detailed inconsistencies and implausibility in aspects of the Applicant’s evidence, involved findings that were reasonably open to it for the reasons that it gave on the material before it. The Applicant’s disagreement with the Tribunal’s conclusions on the basis that he provided documentary evidence in support of his claims is not such as to establish either actual or apprehended bias, whether considered alone or in conjunction with the other issues that he raised. Ground 1 is not made out.
Ground 2 in the Application is that the Tribunal was “influenced by an opinion that fraudulent documents are available in Bangladesh”.
The Applicant submitted that he was the subject of a false case filed against him. He made submissions in relation to the activities of the regime in Bangladesh and what was said to be its practice of filing false cases in relation to central and district leaders. He contended that the false case against him was an integral part of his claim which the Tribunal had failed to consider.
Insofar as this is a contention that the Tribunal failed to consider an integer of the Applicant’s claims, it is not made out. The Tribunal considered the Applicant’s claims that he was arrested at a cricket match and also that he was charged following events at the BNP Conference in April 2011. The fact that the Tribunal did not accept that there were false charges outstanding against the Applicant in Bangladesh or that he was arrested at the cricket match does not mean that it failed to consider those claims.
This ground was expressed as a concern that the Tribunal relied on country information which suggested that forged or fraudulently obtained documents were readily available or prevalent in Bangladesh. The Tribunal did have regard to such information and also to information about the extent of corruption in Bangladesh. On this basis it placed little weight on various documents provided by the Applicant in support of his claims. However the weight to be given to particular items of country information is a matter for the Tribunal (see NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10). It was open to the Tribunal to take the approach that it did on the material before it.
The Tribunal closely analysed the various aspects of the Applicant’s claims. It gave detailed reasons for its failure to accept aspects of those claims relevant to his claim to have a well-founded fear of persecution. The Tribunal considered all the information before it. It did not simply make its decision based on the fact that it gave little weight to certain documents provided by the Applicant. It found that these documents did not overcome its concerns about inconsistencies and implausibilities in the Applicant’s evidence. Such an approach is not indicative of jurisdictional error. Ground 2 is not made out.
Ground 3 in the Application is that the Tribunal failed to consider the application on the basis of the Applicant’s claim to fear harm because of his Hindu religion. In submissions the Applicant reiterated his claims to be a member of the minority Hindu community and contended that his community was subject to oppression by the Muslim community and that the Tribunal had made an error in considering this issue.
Contrary to the Applicant’s assertion, the Tribunal clearly considered his claim to fear harm on the basis of his Hindu religion, both in the context of assessing the Refugees Convention and complementary protection criteria. The Tribunal accepted that Hindus were a minority group in Bangladesh who had experienced some harassment, but had regard to country information to the effect that this harassment was not solely attributable to religious belief or affiliation, but normally had political or economic dimensions. Moreover it found that the Applicant himself had not suffered serious harm in the past as a Hindu and concluded that there was not a real chance that he would suffer such harm now or in the reasonably foreseeable future if he returned to Bangladesh and also that he did not meet the complementary protection criterion. Insofar as the Applicant seeks merits review, merits review is not available in this Court. Ground 3 is not made out.
Ground 4 in the Application is as follows:
The tribunal accepted that I was in favour of BNP. However, the tribunal failed to assess my claims that as my involvement with the BNP, I may face adverse situation on my return to Bangladesh.
The Applicant contended that the Tribunal had accepted that he had been involved with the BNP in Australia and participated in meetings and demonstrations. He submitted he was a “leading activist” and that the Tribunal had made an error in not considering him as a member of the Australian section of the BNP. In addition, it was contended that the Tribunal had erred in failing to consider the Applicant as a member of the BNP in Bangladesh and in failing to “admit” the oppression towards the BNP in Bangladesh.
The Tribunal did accept that the Applicant had become involved with the BNP in Australia. However it had regard to the absence of information in the letter of support from the convener of the BNP in Australia in relation to the role the Applicant played or how active he was in BNP in Australia. It also had regard to the Applicant’s evidence at the first hearing about his activities, including his statement that he did not do much in Australia for the BNP, he did not hold a position with the BNP in Australia, and that his family was not aware of his activities in Australia. The Tribunal considered this evidence and did not accept that there was any evidence before it to suggest that the Applicant’s activities in Australia would be known by the AL in Bangladesh or would cause him any difficulties.
It was open to the Tribunal to find, having regard to its findings in relation to the Applicant’s credibility and lack of political involvement in Bangladesh, that the Applicant’s involvement with the BNP in Australia was solely for the purpose of strengthening his claim to be a refugee within the meaning of the Refugees Convention. It disregarded that conduct for the purpose of assessing the Refugee Convention claim. However, in the context of considering complementary protection, the Tribunal had regard to and considered the Applicant’s activities and involvement with the BNP in Australia. It was not satisfied he had engaged in those activities out of any genuine political beliefs, that the AL was aware of his involvement in Australia or that even if they were, this would result in him being of adverse interest to them. It did not fail to consider the Applicant’s claims in relation to the BNP in Australia. This aspect of ground 4 is not made out.
Insofar as it was submitted that the Tribunal failed to consider whether the Applicant was a member of the BNP in Bangladesh or the consequences of such membership, the Tribunal addressed the Applicant’s claims in relation to his activities and involvement in Bangladesh. For the detailed credibility reasons that it gave it was not satisfied that the Applicant was involved with the BNP in Bangladesh, that he held any position with the BNP or that he experienced the incidents in Bangladesh he relied on in support of his claims. In circumstances where the Tribunal did not accept that the Applicant was involved with the BNP in Bangladesh, it was not necessary for it to go on to consider the treatment of persons who were involved with the BNP in Bangladesh. Ground 4 is not made out.
As none of the grounds relied on by the Applicant are made out, the Application must be dismissed.
I certify that the preceding one hundred and twenty-four (124) paragraphs are a true copy of the reasons for judgment of Judge Barnes
Associate:
Date: 29 July 2015
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