AGT15 v Minister for Immigration
[2015] FCCA 1045
•23 April 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AGT15 v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 1045 |
| Catchwords: PRACTICE AND PROCEDURE – Summary dismissal – proceedings summarily dismissed. |
| Legislation: Migration Act 1958, ss.36(2)(a), 36(2)(aa), 476 |
| Spencer v the Commonwealth of Australia (2010) 241 CLR 118 |
| Applicant: | AGT15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 808 of 2015 |
| Judgment of: | Judge Street |
| Hearing date: | 23 April 2015 |
| Date of Last Submission: | 23 April 2015 |
| Delivered at: | Sydney |
| Delivered on: | 23 April 2015 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondent: | Mr Glavac Clayton Utz |
ORDERS
The Proceedings be summarily dismissed.
The Applicant to pay the First Respondent’s costs fixed in the sum of $1367.
| FEDERAL CIRCUIT COURT AT SYDNEY |
SYG 808 of 2015
| AGT15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 in respect of a decision of the Tribunal made on 19 February 2015 affirming a decision of the delegate not to grant the applicant a protection visa. The first respondent moved for summary dismissal on the grounds that the applicant failed to disclose any arguable jurisdictional error.
The grounds are as follows:
1. The Refugee Review Tribunal made jurisdictional error in finding that I was not a person to whom Australia owes protection for the purpose of s36(2) of the Migration Act 1958 (Cth).
2. The Refugee Review Tribunal made jurisdictional error in finding of Data Breach.
SZWAJ v Minister for Immigration and Border Protection [2015] FCA 26 at [8]-[12],
SZWCH v Minister for Immigration & Anor [2015] FCCA 325 at [14]-[15],
SZTVA v Minister for Immigration and Border Protection [2014] FCA 1334 at [10]
SZSSJ v Minister for Immigration and Border Protection [2014] FCAFC 143.
3. The Tribunal misapplied the test of whether there was a real risk of significant harm to the applicant if returned to his country of nationality.
The application identifies the following:
The Court may hear and determine all interlocutory or final issues, or may give directions for the future conduct of the proceeding.
I accept the submissions of the first respondent that the application fails to disclose any arguable jurisdictional error. There is no substance in relation to ground 1. Ground 2 identifies authorities that do not establish any jurisdictional error. In this case it was open to the Tribunal to make findings in relation to the data breach and those findings can not be said to lack an evident and intelligible justification. Accordingly there is no substance in relation to ground 2.
Ground 3 is clearly an impermissible challenge to the findings of fact made by the Tribunal. I take into consideration in respect to the Court’s summary disposal 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, at [24]-[25] and [59]-[60].
The applicant was found to be a citizen of Bangladesh and his claims were assessed on that basis. The applicant applied for a protection visa on 12 June 2014 which the delegate refused on 9 December 2014 and the applicant applied for a review on 22 December 2014. The Tribunal reasons note that the applicant appeared at a hearing on 5 February 2015 to give evidence and present arguments and that the hearing was conducted with the assistance of an interpreter.
The Tribunal carefully set out the relevant law and summarised the applicant’s claims for protection and the applicant’s evidence. The Tribunal made adverse findings of credit and relevantly held:
13. The Tribunal has formed the view that the applicant is not a person of credibility. The Tribunal finds that since his entry to Australia the applicant provided inconsistent evidence and his claims had varied and shifted with each submission he had made. There has been a significant escalation of claims from the entry interview to the protection application to his subsequent evidence. The Tribunal has formed the view that the applicant has simply fabricated his evidence in order to obtain the visa.
…
20. The Tribunal is of the view that the applicant’s failure to refer to the matters on which he subsequently relied in his protection visa application, and the substantial differences in his claims, offer a strong indication that the applicant has fabricated such claims for the benefit of his application, that he is not a person of credibility and that he was not truthful in the claims he has made.
…
23. The Tribunal is most concerned by the fact that the applicant was willing to fabricate false claims, and withhold information, because he believed that would assist him in obtaining the visa. The applicant’s actions show his willingness to be untruthful and to fabricate evidence to improve his chances. In the Tribunals’ view, the applicant’s conduct suggests he is not a person of credibility and brings into question the veracity of the claims he made in his protection visa application.
24. The Tribunal acknowledges the applicant’s explanation given to the delegate during the interview, as well as in his initial statutory declaration, that he was advised by another person to give such evidence, that he was fearful of being returned to Bangladesh and he was not mentally well. The Tribunal also acknowledges the written submissions of the applicant’s representative dated 7 November 2014, as well as the applicant’s explanation in his submission of 9 February 2015. The Tribunal does not accept these explanations. The applicant presented no medical or otherwise probative evidence to indicate he was affected by any condition at the time of his entry interview that would have affected his ability to give evidence. The Tribunal is unwilling to accept the applicant’s assertions without probative and independent evidence. The Tribunal also does not accept that the applicant was too mentally unstable to provide truthful evidence about the events but he was sufficiently well to falsify the claims. Indeed, the fact that he was able to fabricate a story and put forward that evidence because he thought it would improve his chances of obtaining the protection visa suggests the applicant had the mental capacity to engage in the process. That is, the Tribunal is not convinced that the applicant lacked mental capacity to state the truth, but had the capacity to fabricate evidence of false charges against him.
25. The Tribunal is also mindful that the applicant provided his second set of claims to the Department around October 2013. He had not stated at the time that some of the claims he previously made were false. In the Tribunal’s view, if the applicant had any concerns about providing false information to Immigration he would have taken the first available opportunity to identify the error.
The Tribunal carefully summarised its concerns in relation to the credit of the applicant in relation to involvement with the BNP and relevantly found:
29. The Tribunal has formed the view that the applicant’s knowledge of the BNP is, at best, minimal. The applicant informed the Tribunal that he only worked at the local level but not at a higher level but the Tribunal is not convinced that the location of the applicant’s political activities or his place in the party hierarchy, would affect his knowledge of the very basic information about the party that he was questioned about. The applicant’s own claim is that he had an active involvement with the party, participated in many of its activities and established a high profile in the local area. The applicant also stated that he helped people understand about the party ideas and party requirements at the local level. The Tribunal does not accept that he could have done that, given his own limited knowledge and understanding about the party. The Tribunal finds that that applicant had deliberately changed his evidence when responding to the Tribunal’s concerns and tried to minimise the level of his involvement with the party – contradicting his written claims – to explain his low level of knowledge about the party.
30. The Tribunal notes that the applicant’s membership in the BNP, and his activities for the BNP and its associated organisation, form the very basis of his claims and his claimed fear of persecution. The applicant’s lack of knowledge about the party suggests to the Tribunal that the applicant had not had involvement with the BNP as he claims. That suggests that the remainder of the applicant’s claims, which stem from his political activities, are also untrue.
The Tribunal summarised further discrepancies in para.31 and relevantly found:
32. The Tribunal acknowledges that the applicant presented other documents in support of his application. As the Tribunal pointed out to the applicant in the course of the hearing, information before the Tribunal indicates that document fraud is prevalent in Bangladesh. Having found that the applicant is not a person of credibility and that he is willing to falsify his claims to assist in his protection visa application, the Tribunal is not convinced that any of the documents presented by the applicant are genuine or of probative value. The Tribunal gives these no weight.
33. The applicant informed the Tribunal in oral evidence that he has scars, which show that he was a victim of torture. The Tribunal is unable to confirm the applicant’s claim about the scars but even if they do exist, the Tribunal is mindful that it has no way of knowing how these scars were sustained. The Tribunal does not accept that the existence of any scar supports the applicant’s claims.
34. The Tribunal has formed the view that the applicant lacks credibility and that he has fabricated the entirety of his claims for the purpose of his protection visa application. The Tribunal has formed the view that, having made minimal and largely false claims in his entry interview, the applicant decided that it would improve his chances of obtaining the protection visa if he heightened his claims, so he referred to many other incidents that he had not mentioned before in an undated statement received by the Department around October 2013. He then heightened his claims further in his protection visa application and his interview with the delegate and, having been unsuccessful in his application, he decided to create other claims for the benefit of the Tribunal. The Tribunal has formed the view that the entirety of the applicant’s claims has been fabricated and the Tribunal rejects the entirety of the applicant’s claims.
The Tribunal continued to make adverse findings relevantly in paras.35 and 36. It was in those circumstances that the Tribunal then turned to the issue of data breach. This was an issue before the Tribunal and on which it was open to the Tribunal to come to the adverse findings made on the material before the Tribunal. Relevantly the Tribunal held:
38. The applicant’s representative, in the written submission to the delegate dated 7 November 2014, refers to the applicant’s details being disclosed as part of the Department’s data breach. The applicant suggested that the AL or its supporters would gain knowledge of the data breach, increasing the risk of persecution upon return. The representative submitted that, although the applicant’s claims were not published, it can be implied by virtue of his detention that he lodged claims against the AL and the ruling party of Bangladeshi, which is a significant contributor to his well-founded fear of harm. The applicant’s evidence to the Tribunal is that the government in Bangladesh will kill him as a result or cancel his citizenship.
39. The available information indicates that the ‘data breach’ involved personal information of people detained in immigration detention facilities on 31 January 2014, which was briefly available on the Department’s website; the information included the name, date of birth, nationality, gender, details of the detention (including the date and place of detention and the reason why detained). The available information does not indicate that any details of the applicant’s application for protection were available online, including the claims made in the application.
40. The Tribunal notes that the information was available for a very brief period, so, in the Tribunal’s view, the chance that the DIBP website is being constantly monitored by the AL or its supporters or the government authorities in Bangladesh, and that the information became known to them, is remote. Nevertheless, even if that did happen, the only information that would become available would be the applicant’s personal details. The Tribunal does not accept the applicant’s assertion that it could be implied that he lodged claims against the AL or the government in Bangladesh. The most the information offered was that the applicant sought asylum. The applicant could have made a protection visa application on any number of grounds. Even if the applicant’s suggestion was accepted (and the Tribunal considers it to be far-fetched), all it indicates is that the applicant is an opponent of the Awami League and the ruling party. However, the applicant’s own evidence is that the AL and its supporters are already well aware of that and that is the reason he claims he had been persecuted in the past. The applicant’s claimed involvement with BNP and high profile with the student organisation would put the AL on notice that the applicant was not a supporter of the Awami League. As such, even if the information about the applicant’s detention became known to anyone in Bangladesh as a result of the data breach (and the Tribunal does not consider there is a real chance of that occurring), the Tribunal does not accept that it would in any way increase the risk of harm to the applicant.
41. The applicant suggested that because he arrived in Australia illegally and travelled to other countries, the government in Bangladesh will either kill him or cancel his citizenship. The Tribunal is mindful that many nationals of Bangladesh travel overseas and some do enter other countries illegally. The information released as a result of the data breach did not disclose the mode of the applicant’s arrival in Australia, nor the countries of his past residence. The Tribunal does not consider that information would be known to the authorities in Bangladesh and, significantly, the Tribunal is not convinced that the authorities in Bangladesh would take any interest in these matters or adverse interest in the applicant because of such matters.
42. The Tribunal finds that there is no real chance that the applicant will be persecuted upon return to Bangladesh due to any disclosure as a result of the data breach.
43. Having considered the applicant’s claims singularly and cumulatively, the Tribunal finds that there is no real chance that the applicant will be persecuted for any Convention reason or a combination of reasons, if he were to return to Bangladesh, now or in the reasonably foreseeable future. The Tribunal finds the applicant does not have a well-founded fear of persecution.
The Tribunal then turned to the issue of complementary protection and relevantly found:
45. The Tribunal has formed the view that the entirety of the applicant’s claims has been fabricated. The Tribunal has rejected the entirety of the claims put forward by the applicant. The Tribunal finds that there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country (Bangladesh), there is a real risk that he will suffer significant harm. The Tribunal finds that the applicant does not meet the complementary protection criterion in s.36(2)(aa).
It was in those circumstances the Tribunal concluded the applicant was not a person in respect of whom Australia had protection obligations and that the criteria under s.36(2)(a) and 36(2)(aa) had not been made out. The findings of the Tribunal are clearly open. The applicant had a genuine hearing. The findings cannot be said to lack an evident and intelligible justification. The proceedings are clearly doomed to failure.
I am clearly satisfied the proceedings have no reasonable prospect of success. The proceedings are summarily dismissed.
I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Street
Associate:
Date: 28 April 2015
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