AEX15 v Minister for Immigration

[2015] FCCA 903

FEDERAL CIRCUIT COURT OF AUSTRALIA

AEX15 & ORS v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 903

Catchwords:
MIGRATION – Refugee Review Tribunal – Protection (class XA) visa – no jurisdictional error.

PRACTICE AND PROCEDURE – Summary dismissal – proceedings summarily dismissed.

Legislation:  
Federal Circuit Court Act 1999, s.17A
Federal Circuit Court Rules 2001, r.13.10

Migration Act 1958, ss.36(2)(a), 36(2)(aa), 476

Spencer v the Commonwealth of Australia (2010) 241 CLR 118

First Applicant: AEX15

Second Applicant: AEY15

Third Applicant: AEZ15

Fourth Applicant: AFA15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 703 of 2015

Judgment of: Judge Street

Hearing date: 9 April 2015

Date of Last Submission: 9 April 2015

Delivered at: Sydney

Delivered on: 9 April 2015

REPRESENTATION

The First Applicant appeared in person

Solicitor for the Applicant: Ms A. Carr
DLA Piper Australia

ORDERS

1. The proceedings be summarily dismissed.

2. The First and Second Applicants to pay the First Respondent’s costs fixed in the sum of $573.

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

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within this Court’s jurisdiction under s.476 of the Migration Act 1958 in respect of a decision of the Tribunal made on 27 February 2015 affirming a decision of the delegate not to grant the applicant a Protection (class XA) visa.

2. The grounds in the application are as follows:

   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 26(2)(aa) of the Migration Act 1958

   Particulars:

   In dealing with the Applicant’s claims udner 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 procedural fairness.

3. The application identifies on the First Court date that the Court may hear and determine all interlocutory or final issues, or may give directions for the future conduct of the proceedings.

4. The Court identified to the applicant that, having looked at the application and the decision, the Court was concerned that the application failed to disclose any arguable jurisdictional error and the Court 2was minded to consider exercising its summary dismissal powers.  I take into consideration in respect to the Court’s summary dismissal powers under s.17A (Federal Circuit Court Act 1999) and r.13.01 (Federal Circuit Court Rules 2001) the principles and caution identified in Spencer v the Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28, at [24]-[25] and [59]-[60].

5. The applicant asserted that the interpreter had changed and that the interpreter had given information that was wrong.  When asked what it was that was the information that the interpreter had got wrong, the applicant said it was the information after 1 January to date.  It is clear that the applicant was referring to the country information.  It is equally clear from what was said by the applicant and the reasons of the Tribunal that the alleged interpretation error was in no way material to the determination of the review.

6. There is no substance in the assertion that there was any denial of procedural fairness in the conduct of the review.  No ground was identified in the application suggesting a difficulty in respect of the interpreter.  There is nothing disclosed on the face of the decision that suggests that there was any difficulty in the conduct of the hearing.  Indeed, it is clear that the applicant appeared twice before the Tribunal on 19 November and on 18 February 2015 and had the opportunity to give evidence and present arguments and that the hearing was conducted with the assistance of an interpreter and the applicant was also represented by a migration agent. 

7. It was also the case that this applicant is one who the Tribunal found reads, writes and speaks both Bengali and English.  Accordingly, there is no substance in the suggestion that there is some unfairness in relation to the conduct of the review in respect of an alleged interpreter error. 

8. In relation to ground 1, it is clear that the Tribunal provided reasons for its decision in respect of complementary protection as identified below. Ground 1 is doomed to failure and is an impermissible challenge to findings of fact.  In relation to ground 2, it is clear that the Tribunal applied the correct legal principles and there was no substance in relation to ground 2. Ground 2 is in substance an impermissible challenge to findings of fact. Ground 3 is a generalised allegation that is clearly inconsistent with the two hearings that the applicant attended, and there is no substance in relation to ground 3.  The application is clearly doomed to failure. 

9. The applicant asked for more time and identified compassionate grounds on which he sought to have an adjournment.  The Court indicated that this is not a Court of Appeal and that this Court is not hearing the matter afresh on the merits and that this Court is confined to jurisdictional error.  The Court indicated that it is not appropriate to grant an adjournment where there is no utility because proceedings are doomed to failure, as that will only increase the costs for both parties and utilise limited Court time.  For the reasons in this decision, I am clearly satisfied the proceedings are doomed to failure and that there is no utility in granting any adjournment. 

10. The Tribunal carefully set out the requirements in relation to the assessment of the applicant’s claims under s.36(2)(a) and s.36(2)(aa). The Tribunal identified the applicant’s claims and evidence and the submissions that had been received. The Tribunal carefully identified the evidence given by the applicant at the first Tribunal hearing and at the second Tribunal hearing and identified its concern in relation to the applicant not having disclosed that he applied for a United Kingdom visa. The Tribunal noted it received post hearing submissions on 27 February 2015 which were taken in account. The Tribunal addressed the country information in considerable detail and carefully addressed the applicant’s evidence, relevantly making the following findings:

    176. The applicant obtained his new passport to go abroad, as his previous one had expired and he needed a digital one to travel to Australia. The applicant was evasive as to whether police clearances were obtained but ultimately indicated that he provided police clearance certificates to obtain travel documents to come to Australia issued in [S]. He obtained travel documents for his wife and children at the same time. His children did not have passports yet and asked if he would apply for passports for them indicated that he would if required. The passports took about a month to obtain. There was no problem in obtaining them. The fa1nily had no problem departing Bangladesh.

    178. …The Tribunal considered the applicant's explanations, but finds that he was not awaiting documents as indicated from Bangladesh and does not accept his explanation for delaying the lodgement of his protection visa application. The Tribunal finds the delay not to be consistent with a subjective fear of persecution.

    180…. He claimed to be an office holder but was only able to relate knowledge of what the BNP stood for in the most basic terms. The Tribunal does not accept that he was an office holder as claimed.

    181. The Tribunal further noted that the applicant did not mention being general secretary locally of the Chattra Dal in his application form. Asked why he said perhaps he forgot. The Tribunal considered his explanation, but finds that the applicant's claim to have been an executive member of the Chattra Dal is not credible.

    187. The Tribunal finds that the applicant's evidence as to his motivation in joining the BNP. becoming an active office holder and holding executive positions in the party is not credible. The Tribunal does not accept that 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 finds that he has no affiliation with the BNP. Given that the applicant's evidence is that he only fears return to

    Bangladesh for reasons of his affiliation with the BNP the Tribunal finds that the applicant is not a person in respect of whom Australia owes protection obligations.

    189. The applicant's account of the most serious harm faced by him in Bangladesh was virtually a verbatim recitation of what was written in his application and contained no supporting corroborative detail. Given its finding that the applicant was not affiliated with the BNP and this was the claimed cause of the claimed incident, the Tribunal concludes that the incident never occurred and the applicant's evidence is not credible. The Tribunal does not accept that the applicant faced serious harm at the hands of the Awami League, its members, goons or Bangladeshi authorities prior to his departure from Bangladesh. The Tribunal further notes that the applicant has made no claim of outstanding charges against him. He obtained a new digital passport for himself and his family and left Bangladesh without difficulty. The Tribunal finds that the applicant is not of adverse interest to the Bangladeshi authorities for any reason. The Tribunal finds that there are no charges outstanding against the applicant in Bangladesh.

    190.  The Tribunal does not accept the documents as submitted by the applicant to be genuine or reliable given its finding that he is not affiliated with the BNP. Further, the letters contains irregularities are self-serving, and make reference 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. It finds that these documents are not genuine or reliable and gives them no weight.

    191. 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. Further in this context, the Tribunal notes the applicant's failure to disclose his application for a UK visa on his previous passport, and further, his delay in departing Bangladesh.

    192. The Tribunal does not accept that the applicant is credible in relation to his claimed affiliation, role and profile in the BNP, that he faced harassment and 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. lt has also considered whether there is a real chance that the applicant would face persecution for a Convention reason in Bangladesh for reasons of the general security situation, but finds that there is insufficient evidence before it to make such a finding before it. The Tribunal further in this context considered the docu1nents filed after the hearing in support of the application but having found the applicant not to be credible in relation to the central elements of his claim finds that he does not have a well-founded fear of persecution in Bangladesh for any Convention reason.

    193. The Tribunal finds that there is no real chance the applicant would face persecution in Bangladesh for any Convention reason.

    194. The Tribunal has also considered whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Bangladesh, there is a real risk that he will suffer significant harm as defined in subsection36(2A) of the Act. 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 does not accept that there are substantial grounds for believing that there is a real risk the applicant will be arbitrarily deprived of his life, or the death penalty will be carried out on him, or that he will be subjected to torture or to cruel or inhuman treatment or to degrading treatment or punishment in Bangladesh. On the evidence before it the Tribunal does not accept that there is a real risk the applicant will suffer significant harm in Bangladesh. The Tribunal is not satisfied on the evidence that a real risk of significant harm exists for the applicant. The Tribunal does not accept that the applicant is a person in respect of whom Australia has protection obligations under paragraph 36(2)(aa) of the Act.

    195. As the applicant's family 1nembers advanced no independent claims, their claims also fail for the same reasons, and the Tribunal finds that they are not persons in respect of whom Australia has protection obligations under paragraphs 36(2)(a) or 36(2)(aa) of the Act.

11. It was in those circumstances the Tribunal found that the applicant was not a person in respect of whom Australia has protection obligations and that the applicant failed to meet the criteria under s.36(2)(aa) for a protection visa. Relevantly, the Tribunal made a finding of fact that the applicant would not face any real risk of harm in Bangladesh, which was his country of reference and of which he was a citizen. That finding was clearly open by the Tribunal.

12. The grounds of the application are clearly doomed to failure.  There is no utility in granting an adjournment for the reasons already given.  The applicant had a genuine hearing and the findings cannot be said to lack an evident and intelligible justification.  The proceedings have no reasonable prospect of success. The proceedings are summarily dismissed.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  14 April 2015