AEX15 v Minister for Immigration
[2016] FCCA 3022
•24 November 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AEX15 & ORS v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 3022 |
| Catchwords: MIGRATION – Application under rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) to dismiss an application for judicial review of a decision of the Refugee Review Tribunal – whether applicant has raised an arguable case for relief – no arguable case for relief raised – application dismissed. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), r. 44.12(1)(a) Migration Act 1958 (Cth), s. 36(2)(a), 36(2)(aa) |
| Cases cited: Muin v Refugee Review Tribunal (2002) 190 ALR 601 NAKD v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 321 Velauther Selvadurai v the Minister of Immigration and Ethnic Affairs and J Good (Member of the Refugee Review Tribunal) [1994] FCA 1105 |
| First Applicant: | AEX15 |
| Second Applicant: | AEY15 |
| Third Applicant: | AEZ15 |
| Fourth Applicant: | AFA15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 703 of 2015 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 3 November 2016 |
| Delivered at: | Sydney |
| Delivered on: | 24 November 2016 |
REPRESENTATION
| First applicant in person assisted by an interpreter. |
| Solicitors for the Respondents: | Ms C Saunders of DLA Piper |
ORDERS
Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) the application is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 703 of 2015
| AEX15 |
First Applicant
| AEY15 |
Second Applicant
| AEZ15 |
Third Applicant
| AFA15 |
Fourth Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The first respondent (Minister) seeks an order under r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (FCC Rules) that the application be dismissed because the application does not raise an arguable case for the relief it seeks. By that application the applicants seek judicial review of a decision made by the second respondent (Tribunal) affirming the decision of a delegate of the Minister not to grant the applicants Protection (Class XA) visas.
The first and second applicants are husband and wife, and the third and fourth applicants are their sons. All applicants are citizens of Bangladesh. It is only the first applicant (applicant) who made an application for protection. The remaining applicants applied for protection as members of the same family unit as the applicant.
Claims for Protection
In a statutory declaration annexed to the protection visa application, the applicant claimed he is from Sylhet and is a supporter and member of the main opposition political party, the Bangladesh Nationalist Party (BNP). The applicant claimed his uncle was an active member and prominent local leader of the BNP. His uncle held four positions with the BNP at various times between 1972 and 2011,[1] and the people elected him three times.
[1] The statutory declaration states 2010 but the applicant corrected paragraph 4 of the statutory declaration at the hearing before the Tribunal stating that paragraph should refer to the year 2011, not 2010.
The applicant claimed that because of his family’s influence, he started supporting the BNP party after he left school in 1992. The applicant claimed he supported his uncle in election campaigns by “pasting posters, distributing political handbills, food and drinks for people who attended the election meetings”. In 1998 the applicant became a member of the BNP, and during the 2003 local election, he was involved in political activities supporting his uncle. Because of his political activities, he had a local profile as a member of a local BNP family and became the target of the Awami League supporters in his area. The applicant claimed that because BNP “was in power” at that time, the Awami League members and supporters could not do anything to the applicant, although they had threatened him “sometimes”.
The applicant actively campaigned in the 2008 national election and “used to go door-to-door in the election campaign, distributing election material and helped party people to organize meetings”. The applicant claimed that when the Awami League came to power at the end of 2008, they initially did not attack BNP members and supporters in his area, but, as time passed, Awami League supporters gradually started attacking the BNP members and supporters in the area.
In 2010 the applicant established a fish cultivation business in his area, and began breeding fish to sell at the local market. The applicant employed people so he could manage his political activities. In 2011 the applicant attended a series of “agitation protests” against the Awami League organised by the Organising Secretary of the BNP, Mr A, which resulted in the BNP supporters and members in Sylhet coming under the Awami League members’ “close watch”.
Mr A was abducted in 2012. The applicant along with other local BNP members participated in protests to get Mr A released. Mr A was not released and the applicant was threatened by local Awami League members and supporters who warned him that “they will ruin [his] life”.
In June 2012 suspected Awami League members and supporters forcibly entered the applicant’s fish farm, assaulted the security guard, and put poison in the lake killing all the fish. The security guard called the applicant, who went to the farm with his brother. After he observed the destruction, the applicant lodged a complaint with the police. The police, however, did not accept the complaint.
The applicant further claimed that in November 2012, when he was going to the market, four people surrounded him, laughed at him, and asked whether the applicant will continue to be involved in politics, warning him that if he continued to do so, he will face the same fate as Mr A and the fish killed on his farm. The applicant was attacked with an iron rod, and left him when he became unconscious. When the applicant regained consciousness, he was in the hospital. He was later taken to a private clinic where he stayed for three days to receive treatment. He still has scars on his body as a result of the attack.
On advice from his family, the applicant decided to leave Bangladesh, and contacted his aunt in Australia to help him “get out from the situation”. The applicant claims he fears returning to Bangladesh because he will face serious harm from Awami League members and supporters and claims he will not get state protection because the Awami League is in power.
Further claim
The applicant advanced a further claim before the delegate and at both hearings before the Tribunal, which was not previously mentioned in his application for a protection visa. The applicant claimed he held the position of Jalalabad Jubo Dal Secretary in 2008.
Tribunal’s decision
The Tribunal did not accept the applicant was credible in relation to his claimed affiliation, role, and profile in the BNP, or that he faced harassment or serious harm at the hands of the Awami League or the authorities in Bangladesh, or that he is of adverse interest to any potential agents of harm for a Convention reason in Bangladesh.[2] The Tribunal relied on a number of matters.
a)First, the applicant said he had been told before he entered Australia that he could apply for a Protection visa, and that it was not his sole intention to visit his relatives in Australia, yet the applicant delayed for almost two months after he arrived in Australia before he applied for a Protection visa. The Tribunal did not accept the applicant’s explanation for his delay.[3]
b)Second, the Tribunal found the applicant’s evidence about the BNP and its policies to be vague, superficial, and lacking in supporting detail.[4]
c)Third, the applicant claimed he had been briefly selected as general secretary of his local Chattra Dal, despite Chattra Dal being the student wing of the BNP, and despite the applicant’s not having been a student for years; [5] and the applicant claimed to have been elected an executive member of Jubodal, the youth wing of the BNP, despite the applicant having claimed to have been a member of the BNP for almost a decade, and the applicant’s being 30 years of age.[6]
d)Fourth, the applicant could not recall when the Parliamentary elections occurred while he was a Jubodal office holder, and was tentative at best when giving other election dates, despite claiming he had joined BNP in 1998.[7] Nor could the applicant recall the major policies in the only parliamentary elections that took place while he was an officer holder of the Jubodal.[8]
e)Fifth, the Tribunal found the applicant’s evidence about his motivation for joining the BNP to be superficial. The applicant’s evidence “was devoid of specific detailed policies which the BNP espoused that attracted him…and his evidence was superficial at best in relation to the BNP and its goals philosophy, principles, and policies and lacked any supporting detail which an executive member of a political party would be able to relate after years of claimed political involvement”.[9]
[2] CB420, [192]
[3] CB417-418, [178]
[4] CB418, [180]
[5] CB419, [182]
[6] CB419, [182]
[7] CB419, [185]
[8] CB419, [186]
[9] CB419, [187]
The Tribunal, therefore:
a)did not accept the applicant “would have been an office holder in the BNP or any of its affiliated organisations including the Chattra Dal or Jubodal at any level” and found that “he has no affiliation with the BNP”;[10]
b)found that the claimed incident of harm did not occur and the “applicant’s evidence is not credible”;[11] and
c)did not accept the applicant faced serious harm at the hands of the Awami League, its members, goons or Bangladeshi authorities prior to his departure from Bangladesh.[12]
[10] CB419, [187]
[11] CB420, [189]
[12] CB420, [189]
The Tribunal also did not accept that the documents the applicant submitted were genuine or reliable, given its finding the applicant is not affiliated with the BNP. In addition, the Tribunal found the documents contained irregularities, they were self-serving, they referred to the applicant lodging a Protection visa application in Australia, they are filled with typographical, spelling, and grammatical errors, and “contain information at odds with the applicant’s evidence in relation to his claimed affiliation with the BNP”.[13]
[13] CB420, [190]
The Tribunal’s conclusions about the applicant’s claims, to the extent he relied on s.36(2)(a) of the Act, were as follows:[14]
The Tribunal finds that the applicant’s credibility is so seriously undermined that there is no credible or trustworthy evidence before it upon which to make a finding that the applicant is a Convention refugee or that he is a person in respect of whom Australia owes protection obligations.
[14] CB420, [191]
The Tribunal also considered the applicant’s claims against the complementary protection criterion provided for by s.36(2)(aa) of the Act. The Tribunal said:[15]
The Tribunal has had regard to the evidence and claims put forward by the applicant. Given that the applicant is not credible in relation to his claims regarding his claimed BNP affiliation, nor the claims relating to harm faced by him for this reason, it finds that there are not substantial grounds for believing that there is a real risk he would face significant harm in Bangladesh under Australia’s protection obligations under s.36(2)(aa). . . . The Tribunal is not satisfied on the evidence, that a real risk of significant harm exists for the applicant.
[15] CB421, [194]
Grounds of application
The application, as originally filed, contained three grounds. On 23 October 2016 the applicant filed an amended application and on 12 October 2016 a document titled “Applicants of Submissions” (Applicant’s Submissions). The amended application contains additional grounds to those stated in the application, and the Applicant’s Submissions contain grounds not included in the amended application.
At the hearing before me, the applicant, who is not legally represented, said he intended to rely on all of the grounds contained in the application, amended application, and the Applicant’s Submissions. The applicant also made an additional oral submission. I will consider each of the grounds stated in each of these documents, and the submissions the applicant made at the hearing.
Grounds stated in original application
The application, as originally filed, contains the following grounds of review:
1.The Refugee Review Tribunal has failed to provide reasons for its decision pursuant to section 36(2)(aa) of the Migration Act.
Particulars:
In dealing with the Applicant’s claims under section 36(2)(aa) of the Migration Act 1958 (Cth), the RRT explicitly failed to provide separate reasons to its consideration under section 36(2)(a) of the Act.
2.The RRT has failed to apply the correct test pursuant to Section 36(2)(aa) of the Migration Act 1958
Particulars
In dealing with the Applicant’s claims under section 36(2)(aa) of the Migration Act 1958 (Cth), the Refugee Review Tribunal explicitly failed to disaggregate the statutory formulae under section 36(2)(a) and 36(2)(aa) of the Act.
3.The Refugee Review Tribunal denied the Applicant’s [sic] procedural fairness.
Ground 1 is not arguable. The Tribunal did provide reasons for concluding the applicant’s claims did not satisfy s.36(2)(aa) of the Migration Act 1958 (Cth) (Act). I have set out earlier in these reasons the Tribunal’s conclusion. The Tribunal’s conclusion was based on the Tribunal’s not having accepted the applicant was a credible witness. There is no aspect of the applicant’s claims which was not covered by the Tribunal’s adverse credibility findings that applied or could reasonably have been taken to apply to the applicant’s claims for protection based on s.36(2)(aa) of the Act.
Ground 2 is also not arguable. The Tribunal did identify the correct formulation of s.36(2)(aa); and it considered separately the applicant’s claims against s.36(2)(aa) of the Act. It is true that the Tribunal relied on the evidence it had already considered to lack credibility; but that evidence was relevant to the assessment of the applicant’s claims against s.36(2)(aa) of the Act. As I have already noted, there is no aspect of the applicant’s claims which was not covered by the Tribunal’s adverse credibility findings that applied to the applicant’s claims for protection based on s.36(2)(aa) of the Act.
The third ground is not particularised and, by itself, does not disclose an arguable case of jurisdictional error.
Amended application
The amended application filed contains the following grounds of application (emphasis and errors in original):
1. The Refugee Review Tribunal made a jurisdictional error when it failed to consider each integer of his claim and or failed to take into account the whole of the oral and written evidence in determining whether he feared persecution claimed amounted to persecution and serious harm within the meaning of s 91R of the Migration Act.
Particular: The Tribunal did not account the background of Applicant’s motivation to joint BNP party since 1998 when he became member of the BNP. He told to the Tribunal that his family is strong supporter of BNP. The applicant told to the Tribunal how his father and uncle was involved in politics and supporting the BNP from the origin of the Party. The applicant gave the evidence why he is targated by the Awami League Party supporters. The applicant was one of the main leader who organised protest against the Awami League (AL) government at the behest of [Mr A]. On 8 December 2011 he attended a protest with Mr A who was abducted. The applicant took part in protest to get him released. The applicant was the main person who organised the protests. That was the reason why he was threatened by the Awami League member. The applicant claims that was the Tribunal failed to consider this integer of his claim. The applicant claims the Tribunal failed to account this matter and mistook the facts. The applicant claims that the Tribunal failed to consider more recent information with regards to the attacks on the BNP supporters by the supporters of the Awami League Party. The applicant claims that not considering the recent information about the atrocities committed by the Awami League on the BNP supporters is an error or a path leading to error, error is itself is failure to perform the statutory task imposed on the Tribunal by the Migration Act.
2. The AAT made a jurisdictional error when it discared all the oral and written submission without giving any solid evidence of cumulative credibility concern in the finding of reasons.
Particular:
The applicant claims that the Tribunal asked many irrilivant questions to discredit and confuse the applicant. Whatever possible the applicant told to the Tribunal about economic policy of the Present Government. In decision the Tribunal found applicant’s evidence to be vague (GB Page 418 Col 180-181) and superficial and lack supporting details.
The applicant claims the Tribunal used only Data supplied by the DFAT which is not all the evidence for the assessing the applicant’s claim for the atrocities committed on the BNP supporters by the Awami League Government machinery.
The Tribunal raised doubts over the credibility which is not true. He was a member of the BNP since 1998 and he worked for that party at all levels.
Ground 1 makes two claims. The first is that the Tribunal failed to consider two of the applicant’s claims, these being the reasons the applicant joined the BNP, and his being threatened by Awami League supporters. It is not arguable, however, that the Tribunal did not consider these matters. The Tribunal did consider the applicant’s evidence about why he joined the BNP, but did not accept the applicant’s evidence;[16] and the Tribunal did consider the applicant’s evidence about why he was targeted by the Awami League,[17] but, again, it did not accept the applicant’s evidence.[18] It is beyond argument that it was reasonably open to the Tribunal not to accept the applicant’s evidence for the reasons the Tribunal gave.
[16] CB389; CB419, [38], [182], [187]
[17] CB385, [16], [17], [18], [54]
[18] CB420, [192]
The second claim the applicant makes is that the Tribunal did not consider “more recent information” about attacks on BNP supporters by Awami League supporters. This claim is not arguable. First, the applicant does not identify the information the applicant claims the Tribunal did not consider. Second, even if the Tribunal had failed to consider such information, it is not arguable that it would have made any difference; and that is because the Tribunal did not accept the applicant was affiliated with the BNP, or that he suffered the harassment and harm he claimed he suffered at the hands of the Awami League because of the applicant’s affiliation with the BNP.
Ground 1 of the amended application, therefore is not arguable.
The second ground contained in the amended application appears to make a number of claims. One is that the Tribunal discarded all oral and written submissions without any solid evidence. To the extent the applicant claims the Tribunal was required to have before it evidence that the evidence of the applicant the Tribunal did not accept was untrue, that is not arguable. The “[u]ncritical rejection of evidence” by the Tribunal may constitute one means of demonstrating that the Tribunal has not properly undertaken a review.[19] The Tribunal, however, “is not required to accept what an applicant says”.[20] Nor must the Tribunal “have rebutting evidence available before [it] can lawfully hold that a particular factual assertion by an applicant is not made out”.[21] It is not arguable the Tribunal uncritically rejected the applicant’s evidence. As my summary of its decision indicates, the Tribunal relied on a number of matters for concluding the applicant was not credible. It is beyond argument that it was reasonably open to the Tribunal to rely on each of those matters for concluding that the applicant’s claims were not credible.
[19] NAKD v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 321 at [7] (Hill J)
[20] NAKD v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 321 at [6] (Hill J)
[21] Velauther Selvadurai v the Minister of Immigration and Ethnic Affairs and J Good (Member of the Refugee Review Tribunal) [1994] FCA 1105 at [7] (Heerey J)
Second, the ground claims the Tribunal relied only on country information prepared by the Department of Foreign Affairs and Trade in relation to atrocities committed by the Awami League on BNP members. That is not arguable. First, it is beyond argument that the Tribunal referred to country information from various sources. Second, it is beyond argument that even had the Tribunal made any error in relation to the country information it considered or did not consider, it could not have made any difference to the decision it made, because, for reasons it is beyond argument were open to it, the Tribunal did not accept the applicant was affiliated with the BNP, or that the applicant suffered any harm at the hands of the Awami League.
Third, the ground claims the Tribunal was wrong in raising doubts about the applicant’s credibility, and that it is true the applicant was a member of the BNP. This raises no arguable case of jurisdictional error, because it unquestionably challenges a decision of the Tribunal which was within its, and not this Court’s, jurisdiction.
Ground 2 of the amended application, therefore, is also not arguable.
The applicant’s written submissions
The Applicant’s Submissions state an additional three grounds (errors in original):
(a)the Administrative Appeals tribunal did not follow the proper procedure as required by the migration act 1958. Thus, the procedure that were required by the act or regulations to be observed in connection with the making of the decision were not observed (Muin, Lee’s case).
(b)The AAT decision was effected by an “Error of Law” and “jurisdictional error”.
(c)There was no evidence or other material to justify the making of the decision.
The Applicant’s Submissions contain detailed submissions. First, it is said the Tribunal had not taken the applicant’s application properly into consideration. That is not arguable. The Tribunal identified the applicant’s claims, considered the claims and the evidence the applicant gave but, ultimately, did not accept them.
Second, it is said the Tribunal relied on “some general facts”. That submission is too general to raise any arguable case. It does not identify the “general facts” it is claimed the Tribunal took into account, or the grounds on which it is claimed it was not reasonably open to the Tribunal to take into account such general facts.
Third, it is said that;
a)the letter by which the Tribunal invited the applicant to appear[22] was similar to the letter sent by the Tribunal in Muin v Refugee Review Tribunal;[23]
b)the Tribunal’s invitation letter was misleading because the Tribunal had not read all of the documents thoroughly on which the delegate had relied, in particular, country information and “various materials in relating [sic] to establish my claim as a refugee”; and it also appears the applicant alleges the Tribunal was not provided with all relevant documents;
c)the applicant said he was misled by the Tribunal’s letter by erroneously believing the Tribunal had read all of the relevant documents, and the applicant relied on that belief by not referring to such documents or providing such documents to the Tribunal; that, at least, is how I understand the following submission (errors in original):
At a factual level the present case differs substantially from muin but the nature of denial of procedural fairness is very much similar, It is understandable that the latter (dated 25 July 2014) misled me, or that I would have taken any particular steps had I been told, if it was the case, that the tribunal had not been provided with them. It was submitted that the documents can be seen to relate my case and the findings of fact in muin made out. I was affected by the tribunal’s adverse material, which information was contained in the documents and the issues in my case. It was assumed that I would have taken any particular course had I known that the tribunal had not been provided with the documents, or did not intend to refer to them. It was not explained by the tribunal how that might be concluded by reference to the contents of the documents.
[22] CB309
[23] (2002) 190 ALR 601
This third ground appears to contend that the statement made in the Tribunal’s invitation letter, being a letter dated 25 July 2014,[24] to the effect that the Tribunal “has considered the material before it” was incorrect and, for that reason, misleading. The ground, therefore, is premised on a factual assertion, namely, that the Tribunal did not consider the documents the Tribunal said were before it. The applicant may also be submitting that the Tribunal was not given all the relevant documents that were before the delegate.
[24] CB309
The applicant has not identified the document or documents he alleges the Tribunal did not consider, or which had not been provided to the Tribunal. And there is nothing in the material before me that gives rise to an arguable case that the Tribunal did not refer to all documents that had been provided to it or that not all of the relevant documents that had been before the delegate had been provided to the Tribunal. In the absence of some basis for arguing that the Tribunal was not provided with all of the documents it ought to have been provided under s.418 of the Act, or that the Tribunal did not consider all of the documents before it, there is no arguable case that the Tribunal did not consider the documents that were before it.
Fourth, the applicant submits the Tribunal made an error of law, or a jurisdictional error, or an error of law that was reviewable under the principles identified by Dixon J in R v Hickman,[25] by ignoring relevant evidence, and making findings in the face of contradicting independent evidence. This submission is not arguable because it does not identify the relevant evidence it is claimed the Tribunal ignored, or the independent evidence which the Tribunal’s findings contradict.
[25] [1945] HCA 53; (1945) 70 CLR 598
Grounds raised at the hearing
The applicant raised two additional grounds at the hearing. The first is the applicant claimed the interpreter at the hearing made mistakes. This raises no arguable case of jurisdictional error because the applicant acknowledged that the interpreter had corrected her mistakes at the hearing.
The second ground raised by the applicant at the hearing is his contention that before the Tribunal he had only claimed he was an executive member of Jubodal, whereas the Tribunal recorded the applicant as stating that he was the general secretary of Chattra Dal and an executive member of Jubodal. The only evidence about this issue is the following passage from the Tribunal’s reasons for decision:[26]
The applicant had claimed to have joined the BNP in his own right in 1998. He had been a member for nine years when he claimed to have briefly been selected as general secretary of his local Chattra Dal, despite this being the student wing of the party and him not having been a student for years. The Tribunal rejects his explanation that one does not have to be a student to be in the Chattra Dal, the student wing of the party. He then claims to have been elected as an executive member of the youth wing of the BNP the Jubodal, after having been a party member for almost a decade and now being thirty years of age, despite the Jubodal being the youth wing to the BNP.
[26] CB419, [182]
The applicant’s submissions can only be made out if there is evidence that contradicts what the Tribunal records as having been said by the applicant before the Tribunal. The applicant has not put in evidence a transcript of the hearing. Directions were made on 24 September 2015 which provided the applicant an opportunity to put on such evidence. It follows then that the applicant’s unsupported assertion that he only claimed to have been an executive member of the Jabodal is not arguable.
Even if, however, there was such evidence, and the Tribunal had made an error in interpreting the applicant as having claimed he was a general secretary of Chattra Dal, it is beyond argument that the error would have been an error within jurisdiction in relation to a minor issue which could not have had any material effect on the Tribunal’s decision.
Thus, none of the two grounds raised by the applicant at the hearing is arguable.
Disposition
In my opinion, none of the grounds raised in the application and amended application, or in the Applicant’s Submissions, or by the applicant before me, constitute arguable grounds for the relief the applicants claim in the application and amended application. I propose, therefore, to order that the application be dismissed pursuant to r.44.12(1)(a) of the FCC Rules.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Date: 24 November 2016
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