FEDERAL COURT OF AUSTRALIA

AWB17 v Minister for Immigration and Border Protection [2018] FCA 625

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant pay the first respondent’s costs as agreed or assessed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THAWLEY J:

1    This is an appeal from the decision of the Federal Circuit Court delivered on 12 October 2017, which dismissed the appellant’s application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) dated 17 February 2017. The Tribunal affirmed the decision made by the delegate of the Minister for Immigration and Border Protection (Minister) dated 4 May 2015 refusing to grant the appellant a protection visa.

BACKGROUND

2    The appellant is a citizen of Bangladesh. Apart from working in Saudi Arabia as a fruit vendor between 2001 to 2003 or 2004, the appellant resided in Bangladesh until 2013. On 20 March 2013, the appellant arrived in Australia by boat. He has not departed the country since.

3    On 16 July 2013, the appellant lodged with the Minister an application for a Protection (Class XA) visa. By reason of s 45AA of the Act and regulation 2.08F in the Migration Regulations 1994 (Regulations), from 16 December 2014, the application was taken to be, and to have always been, an application for a Temporary Protection (Class XD) visa.

4    The delegate concluded that the appellant did not meet any criteria of protection under the Act. The delegate interviewed the appellant on 9 January 2015. On 9 February 2015, the appellant emailed the Minister an unsigned and undated statement introducing further claims to his application. The delegate noted in paragraph [9] of the decision record:

In the statement from 9 February 2015 the applicant has altered his original statement and does not claim he relocated to Dhaka after he was arrested. The applicant has not provided an explanation for the alteration of the claim.

5    The delegate noted many aspects of the appellant’s claims considered not to be credible. In particular:

(1)    on being questioned about his relocation to Dhaka as claimed in his written statement, the delegate found that the appellant “appeared to have no memory” of the event;

(2)    the delegate did not find the appellant’s claim of having breached a court order, without re-arrest, to be credible and consequently rejected his claim he had been arrested for an assault in 2011 or that he was charged or tried in respect of it;

(3)    the delegate was not satisfied that an election poster sufficiently established that the appellant ran for a local election;

(4)    the delegate was not satisfied that the appellant was wanted by police for involvement in a protest in August 2012, because the delegate rejected his explanation that we was able to avoid arrest after a warrant was purportedly issued against him for commanding “several people” to “damage vehicles and [start a] fire”; and

(5)    the delegate found that the appellant’s claim to have been abducted in November 2012 to be “invented” as it “did not appear he was reciting personal events”.

THE TRIBUNAL

6    On 11 October 2016, the appellant appeared before the Tribunal to present arguments and give evidence. The appellant was represented by his registered migration agent and a Bengali interpreter was present. Before the hearing took place, the appellant provided the Tribunal a written statement dated 5 October 2016 addressing some of the concerns raised by the delegate, and a new claim that since his interview with the delegate, his brother returned to Bangladesh and became involved with the Awami League (AL). The appellant’s migration agent submitted pre-hearing submissions on 6 October 2016 and post-hearing submissions on 25 October 2016. The post-hearing submissions were accompanied by an unsigned statement dated 25 October 2016 from the appellant.

7    The Tribunal had serious concerns in relation to the appellant’s credibility and the veracity of his claims and noted that he was “unable to give a coherent account of events”. The Tribunal described “significant inconsistencies” in the appellant’s evidence and found aspects of the evidence to be “vague, evasive, implausible, contradictory and unconvincing”: [22].

8    The appellant displayed a lack of significant knowledge of the Bangladesh National Party (BNP) in which he had claimed to be interested since 1995. For example, he was unable to describe the BNP flag, was only able to name two of the colours of the flag and when invited to draw it stated he could not draw. The Tribunal raised with him his poor knowledge of the BNP and its doubt that he was a member. The Tribunal recorded at [29]:

Following the hearing, the Tribunal was provided with an unsigned written statement from the applicant dated 28 October 2016 in which he stated that he was confused at the hearing when questioned about the BNP flag. He stated that his confusion may have been due to interpreting miscommunications. During the hearing, he did not indicate that he had any difficulty understanding the questions. He was provided with a copy of the hearing recording on 21 October 2016 but has not provided any evidence, to date, that there were any errors in the interpretation during the hearing. He has been represented by a migration agent throughout his application. The Tribunal does not accept this explanation.

9    The Tribunal dealt at length with the appellant’s evidence about the positions he held in the BNP, noting many inconsistencies.

10    The Tribunal had concerns with the documents provided by the appellant. For example, it said at [46]-[47]:

46.    During his interview with the Department on 9 February 2015, the delegate raised as an issue with the applicant that he had not been able to find any country information to support his claim that he ran in an election in 2011. He was requested to provide information or evidence to the Department that he ran for electing in 2011. In response, he provided the Department with a copy of a poster which has a photograph of him, a symbol of a football and writing in what appears to be Bengali. An English translation was not provided to the Department. He subsequently provided to the Tribunal an English translation of the poster, a ‘Nomination Paper of Candidate’ dated 18 May 2011, an Invoice Form and copies of 18 poor quality photographs of what appears to be people holding up the poster.

47.     The Nomination Form nominates the applicant as a candidate in the election. It is dated 18 May 2011. The Tribunal has concerns about the authenticity of this document. Firstly, it describes the applicant’s marital status as ‘widower’. His evidence to the Tribunal is that he is married and was married on 20 February 2008. Secondly, paragraph 15 of the Nomination Form requires information about his children including their names and dates of birth. It is not consistent with his evidence in his visa application, which he told the Tribunal was accurate. In his visa application, he stated that he has three children who were born in 2007 (from his first marriage), 2009 and 2011. None of them are named Rejoyan Hussain (Somrat) or born in 2010.

11    Having considered his claims and evidence at length, the Tribunal stated at [96]-[113]:

96.    Having considered all the applicant’s claims, all the evidence and the submissions, the Tribunal finds that the applicant is not a witness of truth. The Tribunal finds that he fabricated his material claims for the purpose of obtaining a Protection visa.

97.     The Tribunal accepts that the applicant was born on 12 March 1978 at Nayakandi village in Monshiganj district in Bangladesh. The Tribunal accepts that he is of Bengali ethnicity and is a Sunni Muslim. The Tribunal accepts that he has three brothers and three sisters and that his parents and siblings reside in Bangladesh. The Tribunal accepts that he has been married twice. The Tribunal accepts that he has a child from his first marriage and that his first wife has passed away. The Tribunal accepts that he married his second wife on 20 February 2008 and has two children of this marriage.

98.     The Tribunal accepts that the applicant attended school between 1984 and 1995. The Tribunal accepts that after he left school he worked with his father, who was a farm produce wholesaler and a fish farmer, until 2001. The Tribunal accepts that he lived and worked in Saudi Arabia from 2001 to 2003. The Tribunal accepts that after he returned to Bangladesh he worked as a self-employed farm produce wholesaler and fish farmer from 2003 until 2013 at his village of Nayakandi. The Tribunal accepts that he left Bangladesh in February 2013 to travel to Australia. The Tribunal accepts that he travelled to Malaysia and Indonesia prior to arriving in Australia on 20 March 2013.

99.     The Tribunal accepts that the applicant’s father was a supporter of the BNP and that he was also a supporter of the BNP. The Tribunal does not accept that he was a member or officer holder in the BNP or that he had a reputation for being a reader in the BNP. It follows that the Tribunal does not accept any of his claims that flow from this. The Tribunal does not accept that he had any involvement with the BNP in Australia. The Tribunal does not accept that he was a candidate in the Union Council election in 2011. It follows that the Tribunal does not accept any of his claims that flow from this. The Tribunal does not accept that he was implicated in or charged with any offence in Bangladesh. It follows that the Tribunal does not accept any of his claims that flow from this including that he has outstanding warrants for his arrest.

100.     The Tribunal does not accept that the applicant always got into arguments about equality and freedom of expression with members of the AL. The Tribunal does not accept that he advocated on behalf of people who were not treated fairly by local government officials and spoke up and intervened when local officials harassed people. The Tribunal does not accept that, during meetings of the heads of the village and community elders, he presented the issues and complaints of people who sought his assistance. The Tribunal does not accept that he had a profile as a leader or an advocate for the downtrodden.

101.     The Tribunal does not accept that the applicant stood up to, confronted and was the “number one enemy” of Nuru, a supplier of drugs and alcohol in his area. It follows that the Tribunal does not accept any of his claims that flow from this.

102.     The Tribunal does not accept that the applicant’s brothers, Misir Ali and Mirzan Dewan are supporters or members of the AL. It follows that the Tribunal does not accept any of his claims that flow from this.

103.     The Tribunal accepts that the applicant got into a dispute with his brother Misir Ali which resulted in his brother assaulting him and pushing his second wife to the floor when she tried to intervene. The Tribunal does not accept that this dispute had anything to do with politics. The Tribunal does not accept that his brother Misir Ali threatened him that he would pay money to have him killed or that he made a complaint to the Police about Misir Ali.

104.     The Tribunal accepts that, following his altercation with his brother Misir Ali, the applicant’s second wife left him and moved to her parents’ home with their child. The Tribunal accepts that this made him very depressed. The Tribunal accepts that his child subsequently became ill and was hospitalised. The Tribunal accepts that this led to him and his second wife reconciling. The Tribunal accepts that his second wife and child thereafter returned to his home in Nayakandi and they continued to reside there as a family until he left Bangladesh.

105.     The Tribunal does not accept that the applicant was abducted in November 2012. It follows that the Tribunal does not accept any of his claims that flow from this.

106.     The Tribunal is not satisfied that the supporting documents provided by the applicant to the Department and the Tribunal in relation to his involvement with the BNP, being a candidate in the Union Council election in 2011, complaints to the Police, charges before the Courts and an Arrest Warrant are authentic documents.

107.     The Tribunal does not accept that the applicant was or is of adverse interest to the AL, its leaders, members or supporters. The Tribunal is not satisfied that, as an ordinary supporter of the BNP, he is at risk of serious harm or significant harm from the AL, its leaders, members or supporters if he returns to Bangladesh now or in the reasonably foreseeable future.

108.     The Tribunal does not accept that the applicant was or is of adverse interest to the Police, the Courts or any other Bangladeshi authority. It follows that the Tribunal does not accept that he will be arrested or harmed by any Bangladeshi authority if he returns to Bangladesh now or in the reasonably foreseeable future.

109.     The Tribunal does not accept that the applicant was or is of adverse interest to Nuru, a drug and alcohol dealer. It follows that the Tribunal does not accept that he will be at risk of serious harm or significant harm from Nuru and his associates if he returns to Bangladesh now or in the reasonably foreseeable future.

110.     The Tribunal does not accept that the applicant is at risk of serious harm or significant harm from his brothers, Misir Ali and Mirzan Dewan, or their associates or any other family member if he returns to Bangladesh now or in the reasonably foreseeable future.

111.     The Tribunal accepts that the applicant does not wish to return to Bangladesh and would prefer to live in Australia.

Cumulative findings

112.     In view of the above findings, the Tribunal is not satisfied that there is a real chance that the applicant will suffer serious harm for any of the reasons claimed if he returns to Bangladesh now or in the reasonably foreseeable future.

113.     Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence and submissions, the Tribunal finds that there is no real chance that the applicant will suffer persecution on the grounds of his actual or imputed political opinion or any other Refugee Convention reason if he returns to Bangladesh now or in the reasonably foreseeable future. Therefore, the Tribunal finds that the applicant does not have a well-founded fear of persecution for a Refugee Convention reason. Accordingly, the Tribunal finds that he does not satisfy the criterion in s.36(2)(a) of the Act.

12    The Tribunal affirmed the delegate’s decision.

THE FEDERAL CIRCUIT COURT

13    The appellant filed an application for judicial review in the Federal Circuit Court on 6 March 2017. His sole ground read as follows:

I have no way to go back Bangladesh unless I die here few peoples are waiting in Bangladesh to kill me. I do not want to die at this early age. I want to stay here at any condition provided by Australian Immigration.

14    The primary judge concluded that the appellant’s sole ground of review was, in substance, a claim for merits review of the Tribunal’s decision.

15    The Federal Circuit Court held that there did not appear to be any ground for judicial review open to the appellant. In an ex tempore judgment delivered on 12 October 2017, the primary judge dismissed the application with costs.

THE APPEAL

16    The appellant identified four grounds of appeal in his notice of appeal filed 2 November 2017. Those grounds, with the possible partial exception of ground two, were not advanced in the court below. No written submissions were filed by the appellant prior to the hearing before me on 7 May 2018. The appellant presented oral argument.

17    The Court may grant leave if the grounds not raised in the Federal Circuit Court have sufficient merit and permitting it would be of no real prejudice to the respondent: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588; [2004] FCAFC 158 at [48].

Ground one

18    Ground one is in the following terms:

The Judge of the Federal Circuit Court in his honourable judgement delivered on the 12/10/17 failed error of law and relief under the judiciary Act. The Judge failed to find that the AAT has not found any evidence in relation to my claims and thus its decision influenced by sufficient doubt.

19    The Tribunal formed clear conclusions and did so on the basis of adequate material. Its reasoning was not shown to be based on an absence of probative material or on the basis of reasoning which could be said to be illogical or legally unreasonable. The Federal Circuit Court was correct in concluding that there was no jurisdictional error on the part of the Tribunal.

Ground two

20    Ground two is in the following terms:

Honourable Judge failed to hold that the Tribunal made an error of law when it did not take up and separately deal with the factual issues. The Tribunal failed to understand the persecution until political killing in Bangladesh under present dictatorial role in Bangladesh. The Tribunal member concluded that I will not suffer from any harm if I go to Bangladesh, which is not feasible.

21    This ground essentially seeks a review of the merits. This Court cannot review the merits of the decision made by the Tribunal. The role of this Court is restricted to the identification and, if applicable, correction of error on the part of the Federal Circuit Court. The Federal Circuit Court did not make an error of law. To the extent this ground is intended to argue that the Tribunal had an obligation to make its own enquiries, it did not in the circumstances of this case. Section 424 of the Act empowers the Tribunal to seek additional information, and s 427(1)(d) of the Act empowers the Tribunal to make further enquiries. Neither provision is mandatory: VCAK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 459 at [27] per Crennan J. There was no obligation in the present case to make enquiries as a result of any circumstance particular to the present case or as a result of the way in which the hearing was conducted.

22    The primary judge correctly concluded that the Tribunal considered and dealt with the appellant’s claims. The Tribunal exercised its jurisdiction of review and did so without erring in a way which could be characterised as jurisdictional error.

Ground three

23    Ground three is as follows:

I was denied procedural fairness, when the Tribunal member made opinion based on assumption and possibilities without any proper investigation. The Tribunal failed to assess the current situation in Bangladesh where thousands of my party leaders AND workers are arrested and killed by so called crossfire and harassed by the autocratic present Awami League Government & the Authority. It is well established that independent report like Amnesty International Country Reports. Present circumstance very danger for me, the Tribunal undermined the danger, I will face if I am compelled to return Bangladesh as returned asylum seeker. And also, I came by boat in Australia only protect my life.

24    The Tribunal referred to country information on Bangladesh which it found relevant. It was entitled to do so. There was no obligation on the Tribunal to conduct enquiries or to prefer particular country information over other country information: NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10; VTAG v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 141 FCR 291 at [41]. It also had regard to information regarding the BNP by referring to two websites at [25] and [27]. The Tribunal used information obtained from another website in considering whether the appellant provided a fraudulent document (at [89]). The Tribunal discussed with the appellant this country information, which indicated that there was a significant prevalence of fraudulent documents in Bangladesh, and that there was no difficulty for anyone to obtain them. The Tribunal was entitled to have regard to this material.

25    The appellant was not denied procedural fairness. The appellant was represented at the hearing before the Tribunal by his registered migration agent and was given an opportunity to present arguments with the assistance of an interpreter. The Tribunal’s reasons make clear that the appellant was asked to address the Tribunal’s credibility concerns. During the hearing, the Tribunal discussed with the appellant his background, family, travel to Saudi Arabia, involvement with the BNP, why he had left Bangladesh and why he fears returning to Bangladesh. In particular, the Tribunal asked the appellant about the policies of BNP at [26]; why there were inconsistencies in his accounts regarding when he became a member (at [40]); his claimed positions with BNP (at [25]-[38]); the claimed attack against the appellant in Dhaka in 2000 (at [40]); his claimed running of the local election in 2011 (at [46]); his claimed abduction (at [68]); his claimed arrests (at [59]) and the claimed bombing of his house before his elections (at [52]). The Tribunal provided the appellant with an opportunity to be heard in respect of the claims he made in his visa application, the claims he made at the interview before the Minister, and before the Tribunal. The Tribunal identified its concerns to the appellant and provided him with an opportunity to respond.

Ground four

26    Ground four states:

Besides, the AAT did not follow the proper procedure as required by the Act in arriving my protection visa merit review application. Thus, the procedures that were required by the act or regulations to be observed, in connection with the making of the decision were not observed.

27    Ground four is not particularised. The Tribunal followed the procedures it was required to follow, in particular those set out in Division 4 of Part 7 of the Act.

CONCLUSION

28    In oral submissions at the hearing, the appellant referred to a 13 page document which he had prepared and given to his lawyer after the Tribunal judgment and before the Federal Circuit Court hearing. No explanation was provided as to how this document could have any bearing on whether the Tribunal committed jurisdictional error or the Federal Circuit Court erred. The appellant had the opportunity before this Court to put whatever argument he wanted.

29    The appellant also stated that the Tribunal should not have reached adverse conclusions on the basis of particular documents and that it failed to understand that the 2011 election was a low level union election. However, any errors made by the Tribunal on these matters (and I am not satisfied it did err) were not errors which constituted jurisdictional error. They were also not matters which could reasonably be seen to go to the core of its reasoning.

30    The grounds of appeal have insufficient merit to warrant the appellant being permitted to raise them on appeal.

31    To the extent that ground two is not new, it is not made out.

32    The appeal is dismissed with costs.

Associate:

Dated:    7 May 2018