BPG16 v Minister For Immigration and Border Protection [2019] FCA 1010

FEDERAL COURT OF AUSTRALIA

BPG16 v Minister For Immigration and Border Protection [2019] FCA 1010 Appeal from: BPG16 v Minister For Immigration & Anor [2018] FCCA 3334

File number: NSD 2276 of 2018

Judge: O'CALLAGHAN J

Date of judgment: 29 May 2019

Date of publication of reasons: 27 June 2019

Date of hearing: 29 May 2019

Legislation: Migration Act 1958 (Cth)

Registry: New South Wales

Division: General Division

National Practice Area: Administrative and Constitutional Law and Human Rights

Category: No catchwords

Number of paragraphs: 23

Counsel for the Appellant: The appellant appeared in person (with the aid of an interpreter)

Solicitor for the Respondents: J McGovern of Clayton Utz

ORDERS NSD 2276 of 2018

BETWEEN: BPG16 Appellant

AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

JUDGE: O'CALLAGHAN J DATE OF ORDER: 29 MAY 2019

THE COURT ORDERS THAT:

1. The appeal be dismissed. 2. The appellant pay the first respondent's costs, to be agreed or assessed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(Revised from transcript)

O'CALLAGHAN J: 1 The appellant seeks to appeal a decision of a judge of the Federal Circuit Court of Australia (Federal Circuit Court) dismissing his application for a review of a decision of the Administrative Appeals Tribunal affirming a decision of a delegate of the first respondent (the Minister) to refuse to grant to the appellant a Protection (Class XA) (Subclass 866) visa (Visa), under s 65 of the Migration Act 1958 (Cth). 2 The appellant is a citizen of Bangladesh. He lodged an application for a Visa in July 2014. That application was refused by the delegate in January 2015. In February 2015, the appellant applied to the Tribunal for review of the delegate's decision. The Tribunal hearing took place on 26 April 2016, and by a decision dated 31 May 2016 the Tribunal affirmed the delegate's decision. 3 The appellant claimed to fear harm or persecution on the basis of his actual or imputed political opinion as a supporter or member of the Bangladesh National Party (BNP) and his opposition to the Awami League (AL) in Bangladesh. The appellant's claims for protection were set out in detail in the delegate's decision, and in considerable detail in the decision of the Tribunal. The judge below accurately summarised the claims as follows: (a) He is a single Muslim male from Demra in Dhaka, Bangladesh. (b) He became involved in student politics and supported the Demra branch of the Bangladesh National Party … student wing, known as Jatiyadabadi Chhatra Dal (JCD), when he was a student at the Asian University of Bangladesh. He participated in meetings and programs organised by the party. (c) He became the Assistant Cultural Secretary of the Demra Thana Chhatra Dal in 2005. In this role, he organised programs celebrating significant Bangladesh cultural holidays. Later, he was elected as the joint cultural secretary of the Demra Thana Chhatra Dal. (d) During the caretaker government period in 2007, he was detained and questioned about his personal circumstances and BNP political activities by people dressed in white clothes. He was later released. (e) During the 2008 elections, he organised students to participate in election campaigning to support his local BNP candidate. He was threatened by opposition members from the [Bangladesh Chhatra League - Awami League] student wing. (f) He became the Vice President of the Demra Thana Chhatra Dal committee in 2011. (g) After completing his education in 2011, he [joined] the BNP youth wing Jatiyatabadi Jubo Dal (JJD). In 2012, he was elected to be an executive member of the JJD Demra Thana committee. (h) On 29-30 April 2012, he led a procession at Jatrabari protesting the arrest of central BNP leaders including BNP Joint Secretary General Ruhul Kabir Rizvi. He was injured by the police using their batons, and admitted to a clinic for treatment for two days. (i) On 13 December 2012, the applicant participated in a protest as a leading activist with the local JJD. The police and AL opposition supporters tried to shoot them, but they escaped. Later, the police raided his home to arrest him, and his sister informed him that a case had been filed against him. (j) After this incident he decided to leave Bangladesh and travel to Australia. His father paid bribes to the police and the airport so he could depart the country[.] (k) He believes that the Bangladesh condones extrajudicial killings and continues to jail or lodge false cases against BNP supporters. He fears that, if he returns to Bangladesh, he will be persecuted. 4 The appellant appeared before the Tribunal at the hearing on 26 April 2016 to give evidence and present arguments. The Tribunal rejected each of the appellant's claims for protection. The Tribunal said that it had serious concerns about the credibility of the appellant's claims to fear harm as a result of his purported political involvement in or support of the BNP. In particular, the Tribunal had strong doubts regarding the appellant's claims to have been an activist in the BNP and to have suffered harm from the authorities and the AL as a result. The reasons why the Tribunal formed the view that it had strong doubts as to the credibility of those claims are set out in the Tribunal's reasons at [17]-[20]. 5 In essence, the Tribunal reasoned as follows: first, the appellant's responses to questions about the BNP gave little impression that he was speaking from a background of knowledge which might reasonably be expected from someone with a history of activism in the BNP student and youth wings. Secondly, the appellant's account at the hearing of incidents of harm he allegedly suffered as a result of his political activism was vague, and he appeared to be ignorant of some of the incidents mentioned in his own written statement. Thirdly, the appellant's claim that police came to his house to arrest him on a false charge on 13 December 2012 was implausible given that the appellant returned to live in his home two months later, and the police never returned to find him. Fourthly, the appellant's explanation that he delayed leaving Bangladesh until long after he was issued with a visa because the visa's "sticker" was not placed in his passport was similarly implausible, and incompatible with his claimed fear that the police were looking to arrest and torture him. And fifthly, the appellant's explanation that he delayed applying for protection for nearly 12 months after arriving in Australia to assess the outcome of the Bangladesh election was unconvincing and difficult to reconcile with his claim to have fled in fear of serious harm by the authorities and the AL. 6 In rejecting the appellant's claims, the Tribunal acknowledged that country information indicated that political violence continues to occur in Bangladesh, and activists face some risk of being targeted for arrest and detention because of their political activities. However, the Tribunal found that the appellant had no involvement with the BNP at a level which would have singled him out or exposed him to any form of targeted harm. The Tribunal also placed no weight on three supporting letters submitted by the appellant because country information suggested false or fraudulent documents were readily available in Bangladesh and frequently used to support refugee applications. 7 Further, the Tribunal was not satisfied with the appellant's explanation that inconsistencies in the emblems on the letterheads were printing errors. Because the Tribunal was not satisfied as to the credibility of any of the appellant's claims it was not satisfied that he had a well-founded fear of persecution or that there was a real risk that he would suffer significant harm in terms of the complementary protection criteria. Accordingly, the Tribunal did not accept the appellant was a person to whom protection obligations were owed. 8 The appellant then sought judicial review of the Tribunal's decision in the Federal Circuit Court. That application was heard by the primary judge on 8 November 2017. The appellant relied on three grounds of appeal, as follows: (1) The Second Respondent made jurisdictional by misjudging the appellant in respect to the false and harm constituted by the Awami League prior of his leaving from Bangladesh. (2) The Second Respondent made jurisdictional error in making a decision, where the Second respondent was biased by the country information. (3) The Second Respondent made jurisdictional error by failing pay any weights to the corroborative evidence submitted by the appellant. 9 As to ground one, the primary judge concluded that it sought merits review. His Honour said that the Tribunal was clearly aware of the appellant's claims, but did not accept them. As the Tribunal's reasons reveal, it gave extensive consideration to each of the claims made, but for the reasons given it simply did not accept the claims. The primary judge was thus correctly of the view that the Tribunal was aware of the appellant's claims, but simply did not accept them. 10 As to ground two, the primary judge held that the Tribunal's choice of weight given to items of country information was a matter for it and, otherwise, the Tribunal rationally and reasonably considered country information in its decision. 11 As to ground three, the primary judge held that the Tribunal had expressly identified three supporting letters which had been submitted to it by the appellant. Those letters, the details of which it is unnecessary to set out in these reasons, are set out in detail in [10] of the Tribunal's reasons. 12 The primary judge found that the findings of the Tribunal in relation to the appellant's credit could not be said to be unreasonable, or without a logical, rational or probative basis or founded on objectively minor matters. For those reasons the primary judge dismissed the application. 13 In this court, the appellant's notice of appeal seeks to rely on three grounds which are in part similar to or the same as the grounds of appeal contended for below and in part new. 14 The appellant also seeks to rely on submissions in respect of each of the grounds of appeal contained in a written submission which was filed with the court with leave and which counsel for the Minster received earlier this morning. Putting the grounds of appeal and those contentions together the appellant's case is as follows: [Ground 1]: His Honour erred by not finding that the Second Respondent did determine the case without an invaluable document and without any evidentiary proofs, the Second Respondent negate the real fear of persecution of the appellant. In respect to this issue the appellant is saying that he was an active member of the Chatradal since his early and gradually he obtained positions in the party as such he obtained several references for by from the Appellant's leaders from Australia and Bangladesh. The appellant claimed that he had a real fear of persecution and this political persecution is prevailed in Bangladesh and it has been supported independent report. In this regard the Second Respondent exercised its power on bad faith. [Ground 2]: The Second Respondent decided claim of the appellant on the basis of country information, which is contradictory, and thus the trial judge erred this issue. The appellant is contending that the country information is contradictory because this report contains the country's socio-political situation and its reflect the political relationship with Australia that the believe of the appellant. The Second Respondent influenced by the country information in deciding fate of the Appellant claim. [Ground 3]: His Honour erred in considering that the Second Respondent made an error in considering the totality of the claim thus the appellant failed to attend the procedural fairness. The Green Book and Appeal book was provided by the First Respondent and statutory documents were not the documents in accordance with the Migration Act. Part 866A, 8668, form 80 was completed by the Appellant and it was signed by the Appellant but contained document does not have signature on it [at AB 1], at [AB13] and at AB [26] .Besides the Appellant's statement was not found in the Appeal book. Basically, the First and Second Respondent did not pay any attention of the Appellant's claim but passed decision with assumption. I believe from the Appeal Court I will receive substantial relief. In respect to the claims the Appellant contents that it was on a strong foundation and based on a real fear of persecution. 15 The Minister submits that these grounds amount variously to no more than bare assertions, impermissibly take issue with the merits of the detailed adverse credit findings, or are insufficiently or incomprehensibly particularised. The Minister submits that, to the extent that the grounds are new, leave to rely on them should be refused because the grounds have no merit, and to the extent that they repeat grounds relied on and dismissed by the primary judge, they should be dismissed for the reasons set out below. 16 As to ground one, the Minister submits, and I agree, that, as the primary judge observed in his judgment, the Tribunal expressly identified and considered the evidence submitted by the appellant and made detailed and extensive findings based on the evidence before it. As the primary judge explained, the Tribunal was more than entitled to take the position that it did with respect to the appellant's claims. Further, the Tribunal's adverse credibility findings were based on the appellant's vague, unpersuasive and inconsistent evidence regarding his purported political involvement in Bangladesh. Those findings were reasonably open on the evidence before it for the detailed and considered reasons that the Tribunal gave, and those reasons did not lack any logical, rational or probative basis. I agree with the Minister's submission that ground one, in any event, amounts to no more or less than an impermissible attempt at merits review. 17 Ground two is new. Before the primary judge, the appellant's case was that the Tribunal committed jurisdictional error because it used "biased" country information, or that it, the Tribunal, was biased by country information. Here, the appellant contends that the Tribunal decision was based on country information which is "contradictory". 18 I will not grant the leave necessary to rely on ground two, because it has no merit at all. It merely seeks to cavil with the selection and treatment of country information made by the Tribunal and otherwise seeks impermissible merits review. In any event, the appellant has not specified what the contradictory country information was that is supposed to have lead the Tribunal into error. It is well established that the selection of country information and assessment of the weight to be placed on it are matters for the tribunal. 19 As to ground three, counsel for the Minister helpfully explained to me what the ground must be read to be getting at. It seems that, for reasons which are unknown, the copy of the appellant's original claims before the delegate has been mislaid or lost. It also seems, and counsel for the Minister conceded, that, at some time between the end of the Tribunal giving and notifying its reasons, copies of the three letters upon which the appellant relied on, and which the Tribunal had no regard to because it formed the view they were likely to have been fabricated, were lost. Two of the three letters, however, were located by the time that the matter came on for hearing before the primary judge. The letter that was not found and, it seems, has never been found, is the third letter referred to in [10] of the Tribunal's reasons at Appeal Book 106. 20 The Minister submitted, and I agree, that these matters amount to nothing. The appellant's claims are set out in detail in the delegate's reasons, as I have recorded, and they are set out in even more detail in the reasons of the Tribunal. The appellant is not able to point to any deficiency in the explication of those claims. In those circumstances, the fact that the original claim cannot now be produced is neither here nor there. The fact that the third letter that the Tribunal did not have regard to cannot now still be found is, though regrettable, also not a matter of any significance. 21 The substance of the letter is set out at [10] of the Tribunal's reasons, and reliance on it was rejected for the same reasons as the other two letters, that is to say that it, along with the other two letters, was likely to have been fabricated. The absence of the documents in such circumstances, in my view, cannot possibly give rise to jurisdictional error, because the absence of them is immaterial. 22 As to the claim in ground three that the Tribunal did not consider the totality of the appellant's claim, that ground is not the subject of any further explanation. In any event, I would reject it, because it is clear from the Tribunal's detailed reasons that it did indeed give consideration to the totality of all the appellant's claims. 23 The appeal must be dismissed with costs I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Callaghan.