FEDERAL COURT OF AUSTRALIA

DCD17 v Minister for Immigration and Border Protection [2018] FCA 1262

Appeal from:

DCD17 v Minister for Immigration & Anor [2018] FCCA 399

File number(s):

NSD 339 of 2018

Judge(s):

DERRINGTON J

Date of judgment:

22 August 2018

Catchwords:

MIGRATION where AAT dismissed application for review because it disbelieved the appellant on several counts – where there were several inconsistencies in the appellant’s evidence – where appeal to FCC attempted to re-engage the merits – where grounds of appeal to this Court mirrored those in the FCC – held, grounds properly considered below – appeal dismissed

Legislation:

Migration Act 1958 (Cth)

Cases cited:

AAO15 v Minister for Immigration and Border Protection [2015] FCA 1291

ACF16 v Minister for Immigration and Border Protection [2016] FCA 982

CNN15 v Minister for Immigration and Border Protection [2017] FCA 579

NAKD v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 321

Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437

SZJHE v Minister for Immigration and Citizenship [2008] FCA 1771

Date of hearing:

21 August 2018

Registry:

New South Wales

Division:

General Division

National Practice Area:

Administrative and Constitutional Law and Human Rights

Category:

Catchwords

Number of paragraphs:

33

Counsel for the Appellant:

The appellant appeared in person with the assistance of an interpreter

Solicitor for the Respondents:

Ms S A Given of HWL Ebsworth

ORDERS

NSD 339 of 2018

BETWEEN:

DCD17

Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:

DERRINGTON J

DATE OF ORDER:

22 AUGUST 2018

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant is to 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

DERRINGTON J:

Introduction

1    This is an appeal from a decision of the Federal Circuit Court of Australia (FCC) of 21 February 2018 in which the appellant’s application for a Constitutional writ directed to the Administrative Appeals Tribunal (the Tribunal) was dismissed. The Tribunal’s decision of 16 June 2017 affirmed the decision of a delegate of the respondent Minister (the Minister) not to grant the appellant a protection visa.

2    The appellant is a citizen of Bangladesh and his claims were assessed as against that country. He arrived in Australia on 8 February 2015 as the holder of a sponsored family visitor visa. On 20 February 2015, he applied for a Protection (Class XA) Visa.

3    The substance of the appellant’s claim was that he had been a supporter, member and former office bearer of the opposition, Bangladesh National Party (BNP), and, as such, claimed to fear that activists from the ruling Awami League (AL) would detain, imprison and assault him if he returned to Bangladesh. He claimed that AL is backed by the government which would not protect him. He also claimed that he will be persecuted by the agitation of false criminal charges against him.

4    On 7 August 2015, the Minister’s delegate refused to grant the appellant the protection visa he sought and provided reasons for that decision. The delegate did not accept the appellant’s claims of past acts of violence against him, did not accept that he was concerned for his safety, did not accept that he had been in hiding since approximately March 2012, and did not accept that false criminal charges were being brought against him. Overall, the delegate did not accept that the appellant would have a genuine fear of harm were he to be returned to Bangladesh.

The Tribunal’s decision

5    On 16 June 2017, the Tribunal dismissed the appellant’s application for review. After a thorough and detailed examination of the circumstances of his case, it disbelieved his claims of political involvement in Bangladesh, his assertions as to his working circumstances and his living conditions in Australia his claims that he had been attacked in Bangladesh, and the claims that the police had sought to make false charges against him. The Tribunal was concerned by the many inconsistencies in his evidence, including in the documentary evidence advanced by him and, therefore, did not accept his claims of fear of persecution. It did accept he had engaged in low level political activities in Bangladesh, but found that would not have exposed him to any real chance of attracting adverse attention from political rivals.

6    The Tribunal reached an adverse conclusion as to the appellant’s credibility. This arose for a number of reasons, including his claims to significant involvement in the political activities of the BNP which the Tribunal did not believe given his lack of knowledge and lack of any documentary evidence supporting it.

7    The Tribunal found that whilst the appellant supported the activities of the BNP in Bangladesh his lack of knowledge and inability to provide details about his direct experience with that organisation suggested his involvement was minimal. Although he claimed to be involved in the BNP at a relatively senior level, he could not name the various units of that political organisation nor recall the names of persons whom he ought to have known. He did not have the insight into the operations of that political organisation which a person claiming his status would have.

8    He produced a number of documents in support of his application, however, the Tribunal discovered these to have been backdated. The appellant sought to answer that by claiming that the backdating was inadvertent. The letters were also vague and inconclusive. The Tribunal found that they were prepared for the purposes of bolstering his claim for a visa. It put little weight on them because their reliability as independent corroboration of the appellant’s claimed political profile in Bangladesh and his experiences was questionable.

9    The Tribunal also identified that the appellant lacked satisfactory proof of his claimed political activities and work over some 15 years. He had given inconsistent statements about the existence of such documentary proof of such activities.

10    The appellant also claimed that he had been the victim of two attacks, one in March 2012 and one in December 2013. The Tribunal disbelieved him in relation to these claims due to inconsistencies in his story and the changeable nature of his assertions. His conduct after the attacks was inconsistent with the substance of his claims for a protection visa.

11    Similarly, there were a number of inconsistencies in his claim that false charges were being brought against him by the police in Bangladesh. Again, his actions subsequent to the alleged activities of the police were inconsistent with that having occurred.

12    In terms of the factual findings the Tribunal concluded at paragraph 55:

Taking all of these concerns together, the Tribunal does not accept that AL cadres attacked the applicant in March 2012 or December 2013, or that he was subject to false charges in January 2014. The Tribunal rejects all associated claims, including that the applicant received physical injuries; that he was fearing for his life; that he was in 'hiding' for some or all of that period, that he was unable to find work (because he was in hiding or because of any political profile); that he was looking for opportunities to leave Bangladesh due to his fear of AL cadres and the Bangladesh authorities (but only prepared to consider Australia as an option); or that his wife (who claims to have been with the applicant when the criminals tried to shoot him in December 2013) is in a deep depression because of these circumstances. The Tribunal also does not accept that the applicant needed police protection (as a result of any of these incidents), but feared approaching the police, fearing that they would refuse him protection or perhaps even harm him.

13    On the basis of those above findings the Tribunal did not accept the appellant was a member of the BNP, or its associated group the JBD. Nor did it accept that he was an activist or officeholder at any time in those entities. It did not accept that the appellant attracted the adverse attention of AL cadres, that he had been threatened, that he had been assaulted or subject to attempted murder or that he was required to take precautionary measures such as hiding or avoiding regular work. It accepted he has been involved to a limited extent in the activities of the BNP in Australia, but that this was very low level political engagement.

14    It followed that there was no real chance of the appellant attracting adverse attention from AL supporters or cadres or the Bangladeshi authorities for political reasons and he would not refrain from political activity because of that. The view that his very low level of political engagement would not bring him to the attention of AL members was supported by the Country Information provided by DFAT. It followed that he did not face a real chance of serious harm amounting to persecution for any reason set out in s 5J(1) of the Migration Act 1958 (Cth) in Bangladesh in the reasonably foreseeable future.

15    For similar reasons there was no real risk the appellant would suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Bangladesh.

Decision of the FCC

16    The learned FCC judge set out in detail the background and decision of the Tribunal. His Honour identified the appellant’s claim before the FCC amounted to an attempt to re-engage with the merits of his application. In particular, the appellant claimed that he was wrongly disbelieved by the Tribunal. In relation to this, the learned judge identified an absence of any illogicality or unreasonableness in the reasons of the Tribunal and observed that it had not failed to take into account any integer of the appellant’s claims. His Honour found that the Tribunal had made appropriate dispositive findings in respect of the claims advanced to it.

17    His Honour considered the appellant’s ground that the Tribunal had not properly dealt with his claim for a protection visa and concluded that, effectively, the appellant was merely seeking to re-agitate the merits of the case and assert that the Tribunal was wrong to disbelieve him. The appellant did not point to any integer of his claim which the Tribunal had failed to address. His Honour also noted it was a matter for the Tribunal to determine what weight to give any alleged corroborative material. The appellant complained that the Tribunal had placed weight on the Country Information provided by DFAT, however, as his Honour noted, it was entitled to do so.

18    The second ground of review was that the Tribunal had miscalculated the appellant’s claim. This seemed to be a reference to the rejection by the Tribunal that the police had sought to bring a false charge against him. His Honour noted that the Tribunal had correctly considered the appellant’s claim in this regard. It had considered the inconsistencies that the appellant continued to reside at the address where the police had allegedly attended, and that he had delayed in departing Bangladesh even after he had received a visa to enter Australia. His Honour found it was open to the Tribunal to reject the appellant’s claim of a false charge taking into account the lack of documentation in support of it.

19    The appellant also claimed that the Tribunal wrongly rejected his claim that he had been attacked by AL cadres because there was no basis for the rejection of his evidence. However, the Tribunal had rejected his claims of political activism that would have made him a target for AL opponents. Moreover, he had related inconsistent stories in relation to the attacks upon him and, as the Tribunal noted, after the first attack he remained living in the family residence. The Tribunal found his claims in this respect to be changeable and difficult to reconcile with the substance of his protection claim. In relation to the alleged second attack, the Tribunal observed there was a significant gap between it and the first attack which negated suggestions that he was living in fear. The learned FCC judge identified that this issue was a matter for the Tribunal to determine and was affected by the adverse credibility findings. No jurisdictional error was identified and the application for review was dismissed.

Grounds of appeal to this Court

20    The grounds of appeal to this Court effectively mirror those agitated in the Court below. They are:

1.    The trial judge erred in considering that the constructive failure of the Second Respondent in determining the claim of the appellant, particularly the Second Respondent has not properly dealt with the applicant’s claims for a protection visa, despite the applicant’s real fear of persecution.

2.    The trial judge erred in considering that the Second Respondent has miscalculated the appellant’s claim.

3.    The trial judge erred in considering that the Second Respondent made an error to deny that appellant was attacked by the Awami cadres. There was no basis or evidential proof from the Second Respondent.

Consideration

21    The submissions filed on behalf of the appellant disclose that he seeks to re-agitate the factual contentions which he advanced before the Tribunal. His complaints are to the effect that his claims were wrongly rejected. In this respect, it is important to recognise that an appeal to this Court concerns the correction of error by a Court below. An Appeal Court is not a forum in which a party may reargue the case agitated for below in the hope of convincing a judge to take a different view of the evidence. Moreover, absent demonstrated error, it is not a forum to engage in a factual re-hearing of the matter before the Tribunal: SZJHE v Minister for Immigration and Citizenship [2008] FCA 1771 at [6]-[8] and CNN15 v Minister for Immigration and Border Protection [2017] FCA 579 at [13]-[14].

22    Before this Court the appellant has not shown any basis for identifying error in the decision of the learned primary judge. His Honour dealt with the grounds of appeal and considered them against the reasons of the Tribunal. His Honour dealt accurately with each ground and was correct to conclude that the appellant merely sought to agitate afresh the grounds and issues he argued before the Tribunal. As he did before the learned primary judge, so here he sought to re-agitate the facts of the case in the hope that the Court will reach a different conclusion. In essence, his arguments were an attempt to invite this Court to engage in a merits review of the Tribunal’s decision. That, of course, is impermissible.

Grounds 1 and 2

23    Grounds 1 and 2 appear to involve an attempt to allege that the Tribunal had failed to properly deal with the appellant’s claims despite his claimed “real fear” of persecution. There is no substance in that allegation. The Tribunal considered at length his alleged support for the BNP; his claim that he was attacked in March 2012; the further claim that he was attacked in December 2013; and, finally, that the police had sought to bring “a case against him”. There is no doubt that the Tribunal considered both the totality of the claims advanced and each of the integers of the claims. The primary judge correctly found that to be the case.

24    At the hearing of the appeal the appellant sought to argue that he was at risk of harm because he was a low-level political activist in the BNP. This is in contrast to his claims as advanced before the delegate and the Tribunal to the effect that he was a senior figure in the BNP and was intensely engaged in political activities. In his written submission to the Tribunal he had identified himself as “one of the leading activists of the Jubodal youth wing of the BNP”, that he had “participated in numerous processions, meetings and led many demonstrations in favour of the BNP’s political benefit”. The submission at the hearing of the appeal was inconsistent with that submission to the Tribunal.

25    Needless to say, the appellant is not entitled to argue on this appeal that the Tribunal did not engage with a claim which was not put to it. The Tribunal dealt carefully with the argument that he was an office holder in the BNP, including being elected as the Sports Secretary of the JBD, the latter being the youth wing of the main organisation. He later claimed that he became a member of the executive committee of a JBD branch. There is no error in the Tribunal not dealing with the claim that he was at risk of being targeted because he was a low level political activist, it being an argument not advanced to it.

26    The appellant also seemed to argue that the Tribunal disbelieved him in relation to his claims although it did not have contradictory evidence. However, it is well established that the Tribunal is not required to uncritically accept all or any of the applicant’s evidence or claims: Randhawa v Minister for Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451E: its obligations are to assess the claims and the evidence and to make an assessment of the plausibility and credibility of the account of events as advanced to it: AAO15 v Minister for Immigration and Border Protection [2015] FCA 1291 at [48]; ACF16 v Minister for Immigration and Border Protection [2016] FCA 982 at [43]. Here, the Tribunal undertook the statutory task required of it and concluded that the appellant’s evidence was not credible. It was entitled to reject his claims and the evidence he relied upon.

27    By a related submission the appellant seemed to submit that the Tribunal did not properly consider evidence which corroborated his claims. In particular, he complained that it did not properly consider a letter which was written by a Mr Arif of BNP Australia Inc which suggested that he was very active in BNP politics. That letter was carefully considered by the Tribunal in its reasons. It identified it and its substance on a number of occasions ([16], [32], [33], [34] and [61]) and a paragraph of the reasons sets out the Tribunal’s conclusions as to why it is not credible. There is no substance in the submission that the Tribunal did not properly consider the corroborating evidence and, in particular, the letter from Mr Arif of BNP Australia Inc.

28    The appellant also complained that the Tribunal did not properly assess his claim that the police in Bangladesh were seeking to present a false case against him. However, that submission is not supportable on the face of the Tribunal’s reasons. At paragraphs [50] – [52] of its reasons and under the sub-heading “False case, early 2014”, the Tribunal considered this aspect of the appellant’s claim and identified the reasons why it disbelieved it. In particular, it reasoned that it was unlikely that after the alleged false claims were made against him and he was in hiding, the appellant would be at the forefront of political activity including street protests as he had asserted. Otherwise, the appellant’s complaints were merely disagreements with the conclusions and findings of fact which were made.

Ground 3

29    This ground appears to be an assertion to the effect the Tribunal reached a conclusion in the absence of any evidence to support it. Its conclusion was to reject the appellant’s claim that he had been attacked by the Awami cadres. However, the conclusion of the Tribunal was supportable for the reasons it gave. Firstly, it found the appellant was not a JBD activist nor a person with a political profile. That had the result it was most unlikely he would be of any interest to the AL supporters or authorities. Secondly, the Tribunal considered the appellant’s account of the incidents lacked sufficient detail. Thirdly, the Tribunal considered that his continued residence in the local area and apparent lack of urgency in departing Bangladesh for Australia, or seeking other solutions, added great doubt as to whether the attacks occurred. Finally, the appellant’s claimed willingness to appear in public demonstrations in mid-2014, although the Tribunal did not believe it, also undermined his assertion. At [55] of its reasons the Tribunal held, taking all of these concerns together, it did not accept the attacks occurred.

30    The above demonstrates the Tribunal engaged in a meaningful consideration of the appellant’s claims in relation to the two alleged attacks and it provided logical and rational reasons for rejecting them. Again, it was not required to accept uncritically any and all of the allegations made by the appellant: NAKD v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 321; Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437. In this case, in paragraphs [39] – [49] of its reasons under the heading “Attacks against the applicant”, the Tribunal critically analysed the claims advanced by the appellant that he was attacked by Awami cadres and it assayed the evidence relating to them. It cannot be said that there was an absence of any basis for the conclusion reached or that the claims were not appropriately considered.

31    It follows that this ground also has no merit.

No error by the primary judge

32    The arguments advanced by the appellant to this Court were the same as those advanced to the FCC and the learned primary judge dealt with them in a similar manner. No error has been shown to exist in the reasons of the primary judge.

Conclusion

33    The appeal must be dismissed. The appellant is to pay the first respondent’s costs of the appeal.

I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Derrington.

Associate:

Dated:    22 August 2018