FEDERAL COURT OF AUSTRALIA

BFU15 v Minister for Immigration and Border Protection [2017] FCA 1446

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant pay the first respondent's costs of the appeal.

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

REASONS FOR JUDGMENT

RANGIAH J:

1    This is an appeal from a judgment of the Federal Circuit Court of Australia delivered on 21 June 2017. The primary judge dismissed the appellant’s application for review of a decision of the Refugee Review Tribunal (the Tribunal) dated 11 June 2015.

2    The appellant is a citizen of Bangladesh. On 19 December 2013, he applied for a Protection (Class XA) visa. He claimed to fear harm from supporters of the ruling Awami League political party due to his links with the Bangladesh Nationalist Party (BNP). A delegate of the first respondent refused the application for a protection visa on 4 July 2014.

3    The appellant applied for review of that decision by the Tribunal. On 11 June 2015, the Tribunal affirmed the decision under review.

4    The Tribunal concluded that the appellant’s claims to have been involved with the BNP and one of its associated organisations, Juba Dal, were highly implausible. The Tribunal did not accept that the appellant was ever harassed or threatened by supporters of the Awani League or was of any interest to the authorities because of a perception that he was a political activist with the BNP, or for any other reason. The Tribunal considered that there was only a remote chance that the appellant would be harmed in any way in the reasonably foreseeable future because of a political opinion imputed to him or for any other Convention reason. The Tribunal held that the appellant’s fear of being persecuted for a Convention reason in Bangladesh was not well founded and there were no substantial grounds for believing that there was a real risk that he would suffer significant harm.

5    The grounds set out in the appellant’s application for judicial review to the Federal Circuit Court were:

(1)    Refugee Review Tribunal failed to consider my Circumstance into Account in its decision (Affidavit Attached)

(2)    Migration Review Tribunal failed to consider the relevant fact of my circumstance which was critical in reaching the decision (Affidavit Attached)

(3)    That I hold genuine fears for my life

(Errors in original.)

6    The primary judge delivered judgment following the hearing of the matter on 21 June 2017. His Honour considered that the first and second grounds raised the same issue. His Honour’s view was that, in reality, those grounds were not that the Tribunal failed to take account of circumstances of the appellant, but that the Tribunal failed to accept the appellant’s claims. His Honour found that these grounds sought impermissible merits review. His Honour found that the third ground was merely an assertion of fact which was not capable of establishing jurisdictional error. His Honour, therefore, dismissed the application.

7    Before this Court, the grounds of the notice of appeal are set out in some detail. In summary, the grounds seem to assert that the Federal Circuit Court erred by failing to find that there was jurisdictional error, because:

(1)    The Tribunal did not make a positive finding as to the appellant’s circumstances and, therefore, did not properly consider his claim.

(2)    The Tribunal did not consider whether, considering the appellant’s claims cumulatively or collectively, he had a well-founded fear of persecution.

8    At the hearing, the appellant submitted only that he will face problems if he returns to Bangladesh, and that he had been unable to obtain evidence concerning the problems he will face.

9    The first ground of appeal is similar to the first and second grounds taken before the primary judge, where the appellant asserted that the Tribunal failed to consider his circumstances, those circumstances being set out in paragraphs 3 to 8 of the appellant’s affidavit of 26 June 2015 filed in support of his application. The primary judge found that those circumstances had been considered by the Tribunal and that the appellant’s real complaint was that the Tribunal should have made different factual findings.

10    The first ground of the notice of appeal relies upon the judgment in WZAQU v Minister for Immigration and Citizenship (2013) 140 ALD 612; [2013] FCA 327 at [12]-[13]. That case decided that the Tribunal must engage in an active intellectual process in relation to the evidence and submissions before it. The appellant asserts that the Tribunal failed to consider his circumstances, namely, those identified at paragraphs 3 to 8 of his affidavit of 26 June 2015. However, as the primary judge found, the Tribunal engaged with all the material before it, including the appellant’s claims and evidence, and made findings of fact open to it. The first ground does not disclose any error on the part of the primary judge.

11    The second ground of the notice of appeal asserts that the Tribunal failed to consider whether the appellant had a well-founded fear of persecution, referring to W352 v Minister for Immigration and Multicultural Affairs [2002] FCA 398 at [21], which refers to a requirement that the Tribunal must have regard to the whole of the case advanced by the applicant and consider all relevant possibilities by looking back at the material placed before the Tribunal. The appellant submits that the Tribunal did not consider the appellant’s claims cumulatively or collectively and that this amounted to jurisdictional error.

12    The Tribunal concluded that the appellant’s claims to have been involved with the BNP and Juba Dal were highly implausible and did not accept that he was perceived by anyone to be involved with such organisations. The Tribunal did not accept that the appellant was ever harassed or threatened by supporters of the Awami League or was of any interest to the authorities because of a perception that he was a political activist with the BNP, or for any other reason. Each individual aspect of the appellant’s claims was rejected or not accepted by the Tribunal. The Tribunal’s rejection or non-acceptance of these claims did not leave it with any scope for considering their cumulative effect. Ground 2 must, therefore, be rejected.

13    The appeal must be dismissed with costs.

Associate:

Dated:    4 December 2017