SZVBH v Minister for Immigration

[2015] FCCA 2332

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVBH v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2332

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), s.36

NAHI v Minister for Immigration [2004] FCAFC 10

Applicant: SZVBH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2541 of 2014

Judgment of: Judge Driver

Hearing date: 27 August 2015

Delivered at: Sydney

Delivered on: 27 August 2015

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms R Krishnan of Australian Government Solicitor

INTERLOCUTORY ORDERS

1. The name of the second respondent is amended to the “Administrative Appeals Tribunal”.

2. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

3. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,265.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2541 of 2014

SZVBH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the former Refugee Review Tribunal, now the Administrative Appeals Tribunal (Tribunal).  The decision was made on 18 August 2014.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.  The applicant had made claims of political persecution in Bangladesh.  The Minister’s submissions filed on 20 August 2015 detail those claims and the Tribunal’s decision on them. 

2. The applicant is a citizen of Bangladesh. He arrived in Australia on 5 March 2013, and applied for a protection visa on 3 June 2013[1]. That application was refused by a delegate of the Minister 27 November 2013[2]. On 23 December 2013, the applicant applied to the Tribunal for review of the delegate’s decision[3]. On 23 June 2014, the applicant appeared at a hearing before the Tribunal with the assistance of his authorised representative[4].  On 18 August 2014, the Tribunal affirmed the Minister’s delegate’s decision[5].

   [1] Court Book (CB) 1-46

   [2] CB 56-71

   [3] CB 73-78

   [4] CB 262-264

   [5] CB 274-285

3. The applicant’s claims to engage Australia’s protection obligations relate to his involvement with the Bangladesh Nationalist Party (BNP). In summary, the applicant claims that he was involved in parliamentary elections held in Bangladesh in 2001 and 2008, and that he has been targeted by members of the Awami League as result. He also claims to be a talented cricket player.

Tribunal’s decision

1. The Tribunal reached the following conclusion at [26][6]:

   The Tribunal finds [its] concerns so significant that it leads the Tribunal to find that the applicant is not a credible witness. It does not accept that he is or was a member of the BNP, that he held any position in the BNP, that he was threatened in Bangladesh, that he was forced to go into hiding in Bangladesh or that he fled Bangladesh because of any fear. The Tribunal is not satisfied that the applicant has any genuine interest in politics in Bangladesh. The Tribunal is not satisfied that the applicant has any political profile in Bangladesh, that he has any genuine interest in politics or that he would engage in any political activities if he were to return to Bangladesh. It follows that the Tribunal is not satisfied that there is a real chance or risk that the applicant would be harmed because of his political opinion or activities. There is no evidence before the Tribunal to suggest that the applicant would be harmed for any other reason.

   [6] CB 281

2. There were seven reasons expressed by the Tribunal underpinning this conclusion on the applicant’s credibility. These were:

   a)first, the applicant’s evidence in relation to his claim to be a member of the BNP was “vague, inconsistent and unpersuasive”[7];

   b)secondly, the applicant’s evidence in relation to his claims to have been appointed to certain positions within the BNP was “inconsistent and unpersuasive”[8];

   c)thirdly, the applicant’s knowledge of the BNP and its leadership was inconsistent with his claims to have been involved with the BNP since 1999[9];

   d)fourthly, the applicant’s evidence as to why he was of adverse interest to the Awami League was unpersuasive and he gave “significantly inconsistent evidence about when and how often he was being threatened”[10];

   e)fifthly, the applicant provided no supporting documentation for his claims to have been involved with the BNP. The Tribunal found the applicant’s ‘inconsistent evidence about his lack of supporting documentation to be [un]persuasive’ and that it reflected poorly on his credibility[11];

   f)sixthly, the applicant appeared to change and fabricate his evidence at the hearing about having received threats since 2008 and being unable to stay at his home in Sylhet since 2009[12];

   g)seventhly, the applicant’s travel history was not consistent with his claimed fears[13].

   [7] CB 277-278 [12]-[17]

   [8] CB 278-279 [18]

   [9] CB 279-280 [19]-[20]

   [10] CB 280 [21]-[22]

   [11] at CB 280-281 [23]

   [12] at CB 281 [24]

   [13] CB 281 [25]

3. The Tribunal found that the applicant’s supporting documentation as to his successful cricketing career did not bear on the legitimacy of his claims to have departed Bangladesh because of a fear of persecution[14].

   [14] CB 281 [27]

4. The Tribunal therefore concluded that the applicant’s claims did not engage Australia’s protection obligations under s.36(2) of the Migration Act 1958 (Migration Act)[15].

   [15] CB 282 [28]-[29]

5. These proceedings began with a show cause application filed on 15 September 2014.  I gave directions in the matter on 28 October 2014.  I provided the applicant with the opportunity to file and serve an amended application and additional evidence; he continues to rely on his original application and the supporting affidavit, which I received in part as a submission.  The application contains three grounds:

   1. The Second Respondent made jurisdictional errors not considering the current situation prevailed in Bangladesh, where human rights have reached its lowest ebb.

   2. The Second Respondent made jurisdictional error by taking into account matter which it stated it would not take into account.

   3. The Second Respondent made decision on assumption not on reality, thus the Tribunal made error in this regard.

   (errors in original)

6. I have before me as evidence the book of relevant documents (court book) filed on 27 October 2014. 

7. The applicant has not filed any written submissions and made only oral submissions.  In his oral submissions, the applicant explained that he is afraid to return to Bangladesh and has no family connections there.  His mother is apparently in the course of relocating to the United Kingdom. The applicant has relatives in Australia, who will be concerned about him if he has to return to Bangladesh. 

8. Those are matters going to the merits of the Tribunal decision, but they do not assist me in considering whether the applicant has an arguable case of jurisdictional error by the Tribunal.  I reminded the applicant of the grounds advanced in his application, in particular Ground 2, which, if particularised, might have disclosed an arguable case.  Unfortunately, the applicant was not able to say anything in support of the grounds of review.  It appears that he sought some professional advice in relation to his application but has not secured legal representation. 

9. In the absence of further particulars, none of the grounds disclose an arguable case of error. I otherwise agree with the Minister’s submissions. 

Ground 1

1. The Tribunal considered available country information concerning the incidence of political violence in Bangladesh at [10][16].  It accepted on the basis of this information that political violence is a frequent occurrence in Bangladesh and has increased as a result of the election in January 2014. However, it found that the applicant had not been truthful in relation to his involvement with the BNP, reasons for leaving Bangladesh or fears about returning there, and rejected the applicant’s claimed fear harm on this basis[17].

   [16] CB 276-277

   [17] CB 277 [11], 281 [26]

2. It is well settled that the country information to which the Tribunal has regard and the weight it gives that information is a matter for it[18].  In substance, the applicant’s complaint that the Tribunal did not consider the current situation in Bangladesh rises no higher than a plea for impermissible merits review.

   [18] NAHI v Minister for Immigration [2004] FCAFC 10 at [11]

Ground 2

1. The allegation that the Tribunal took into account matters which it stated that it would not take into account is not supported by any particulars or evidence and cannot be made out.

Ground 3

1. The allegation that the Tribunal made its decision on the basis of assumption and not reality is plainly an attempt to cavil with the factual findings of the Tribunal. It must fail.

2. I conclude that the applicant has failed to establish an arguable case of jurisdictional error by the Tribunal. I will order that pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

3. The name of the second respondent is amended to the “Administrative Appeals Tribunal”.

4. In consequence of the dismissal of the application, the Minister seeks an order for costs.  The applicant did not wish to be heard on costs.

5. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,265.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  28 August 2015