Ahc16 v Minister for Immigration

[2016] FCCA 2303

FEDERAL CIRCUIT COURT OF AUSTRALIA

AHC16 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2303

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001

Migration Act 1958 (Cth), s.36

Cases cited:

Dranichnikov v Minister for Immigration (2003) 197 ALR 389
Htun v Minister for Immigration (2001) 194 ALR 244

Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259

Randhawa v Minister for Immigration (1994) 52 FCR 437

Re Minister for Immigration; Ex parte Durairajasingham (2000) 168 ALR 407

Applicant: AHC16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 280 of 2016

Judgment of: Judge Driver

Hearing date: 2 September 2016

Delivered at: Sydney

Delivered on: 2 September 2016

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Mr A Keevers of Sparke Helmore

INTERLOCUTORY ORDERS

1. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,606 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 280 of 2016

AHC16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Administrative Appeals Tribunal, formerly the Refugee Review Tribunal (Tribunal).  The Tribunal decision was made on 14 January 2016.  The Tribunal affirmed a decision of a delegate of the Minister (Delegate) not to grant the applicant a protection visa. 

2. Background facts relating to the applicant’s protection claims, and the decision of the Tribunal on them, are set out in the Minister’s outline of legal submissions filed on 26 August 2016.   

Background

1. The applicant arrived in Australia as an unauthorised maritime arrival on 28 March 2013.[1] On 2 July 2013, the applicant made an application for a protection visa.[2] On 28 August 2014, the Delegate refused that application.[3]

   [1] Court Book p.32

   [2] Court Book p.19

   [3] Court Book p.96

2. On 4 September 2014, the applicant lodged with the Tribunal an application for review of the Delegate’s decision.[4] On 11 November 2015, the applicant attended a hearing before the Tribunal.[5] On 14 January 2016, the Tribunal affirmed the decision under review.[6]

   [4] Court Book p.116

   [5] Court Book p.136

   [6] Court Book p.151

Applicant’s claims

1. The applicant’s claims to fear harm were set out in a statutory declaration made on 31 May 2013 and attached to his application for a protection visa, as follows:[7]

   a)The applicant feared harm in Bangladesh because of his imputed political opinion. The applicant’s father and brothers were politically active supporters of political parties opposed to Awami League Party (AL). His father was a supporter of the Jamaat-e-Islami Party (BJI) and his brothers were supporters of the Bangladesh Nationalist Party (BNP). The applicant was not interested in politics.

   b)One day, AL members came to the applicant’s home asking for support. He refused and was threatened with “consequences”, which the applicant did not take seriously. The applicant left to sell his goods in another town. When he returned, he noticed that people had gathered on his land and that his wife had been killed. He “collapsed from the grief” and was unconscious.

   c)When the applicant later asked what had happened to his wife, he was told that she had been raped and suffocated to death. The applicant knew that people from the AL were responsible for this incident. His mother had witnessed the incident and told him that after he left to the market, AL people came looking for him. When the applicant was not available, they took his wife away. The applicant believed “that they killed my wife to send me a message.”

   d)The applicant was scared for his life and hid at the home of his brother-in-law, who told him that the AL people were looking for him. The applicant decided that he could no longer remain in Bangladesh and left.

   e)The applicant feared that if he returned to Bangladesh, he would be persecuted, detained, tortured and killed for not joining the AL and not complying with their wishes. The applicant feared that the AL would do the same to him as they did to his wife. The applicant claimed that he could not relocate to another part of Bangladesh because “the AL is everywhere” and would be able to find him and kill him, no matter where he went.

   [7] Court Book pp.54-56

2. At the Tribunal hearing, the applicant submitted various documents, which he claimed were translated copies of documents that the applicant’s brother-in-law had sent him from Bangladesh.[8] The applicant did not have the originals of any of the documents. They included various documents concerning the crimes claimed to have been committed against the applicant’s wife, a statement that the applicant did not take part in activities subversive to the state, and the birth certificates of both the applicant and his wife.

   [8] The documents are reproduced at Court Book pp.139-148

Tribunal decision

1. On the basis of its cumulative concerns about the applicant’s evidence, large parts of which it found to be inconsistent, implausible or contradicted by the documents provided by the applicant, the Tribunal found that the applicant was not a witness of truth and was not satisfied that the applicant had been truthful about critical aspects of his claims.[9] In support of this finding, the Tribunal found:

   a)The applicant’s oral evidence as to when he was married was inconsistent with that contained in his protection visa application and in one of the documents he provided.[10]

   b)The applicant’s failure to mention his brothers’ political activity until prompted by the Tribunal, and his statement that no one else in his family was politically active, were inconsistent with the claims he had previously made.[11] Nor did the Tribunal accept the applicant’s explanation for the inconsistencies in his account of how many times the AL had sought him out on the day of his wife’s disappearance.

   c)The applicant’s accounts of the events surrounding the crimes claimed to have been committed against his wife varied over time. The Tribunal noted in particular the contradictory evidence provided by the applicant as to the number of times that the AL had sought him out at his home.[12]

   d)The applicant’s claim that he had been able to successfully hide from the AL for two or three months after his wife’s death at his brother-in-law’s house in a nearby village was not credible.[13] Further, the Tribunal considered that various discrepancies between the documents provided by the applicant and his oral evidence, including the date of his wife’s death, whether his wife’s parents were able to report the crime to police and the whereabouts of his wife’s body, reflected poorly on his credibility and the reliability of his evidence generally.[14]

   [9] Court Book p.155 at [25]

   [10] Court Book pp.155-156 at [26] – [27]

   [11] Court Book p.156 at [28] – [29]

   [12] Court Book pp.156-157 at [30] – [33]

   [13] Court Book pp.157-158 at [34] – [37]

   [14] Court Book pp.159-160 at [40] – [45]

2. The Tribunal also referred to two claims advanced by the applicant for the first time at the hearing. While the Tribunal had granted the applicant two short adjournments during the hearing, it was not prepared to accept his claim that when he thought about “these things” his “brain does not work, and it feels like he cannot give a lot of information correctly as well.”[15] Similarly, the Tribunal found it implausible that the applicant would fail to raise at any point before the hearing, his claim that when AL members came to his family home but were unable to find him, they would beat his family, and that AL members had taken land from his family.[16]

   [15] Court Book p.158 at [36]

   [16] Court Book pp.158-159, 161-162 at [39]; [50]

3. On the basis of its adverse credibility findings, the Tribunal rejected the totality of the applicant’s claims in relation to the AL, including the applicant’s claim that his wife had been killed by people connected to the AL.[17] The Tribunal did not accept that the applicant or his family were of adverse interest to anyone in Bangladesh for any reason,[18] including the applicant’s political opinion or that of his family.[19] On the basis of these findings of fact, the Tribunal was not satisfied that the applicant met either the Convention or complementary protection criteria and, accordingly affirmed the decision under review.[20]

   [17] Court Book p.161 at [47]

   [18] Court Book pp.161-162 at [51]; [56]

   [19] Court Book p.161 at [49]

   [20] Tribunal Decision at [60] – [62]

Present proceedings

1. These proceedings began with a show cause application filed on 10 February 2016.  The applicant continues to rely upon that application.  There are three grounds in the application:

   1.The Tribunal failed to exercise its jurisdiction by failing to consider all aspects of my claims.

   2.The Tribunal failed to consider my claim on the basis on my political opinion against the as an independent claim.

   3.The Tribunal failed to assess the escalating political violence in Bangladesh since 2012.

   (error in original)

2. The application is supported by a short affidavit filed with it, which I received as evidence.  I also have before me as evidence the court book filed on 21 April 2016.  Only the Minister prepared written submissions in accordance with procedural orders made by a registrar.  I invited oral submissions from the applicant today.  In particular, I asked him to explain and expand on his three grounds of review. 

3. He did not do so, but, rather, complained that the Tribunal was wrong to disbelieve him.  He told me that the situation in Bangladesh is poor and deteriorating.  He said, in effect, that his family in Bangladesh is destitute and there is nothing for him there.  He will not return to Bangladesh. 

4. In submissions in reply, the applicant expressed a willingness to go to any other country in the world other than Bangladesh.  I explained to him that there was nothing to prevent him making arrangements for travel to a third country should he wish to do so.  The applicant was not able to clothe his grounds of review with any substance.  His concern with the Tribunal decision is with the merits of it rather than any legal issue.

5. My own examination of the Tribunal decision leads me to the view that the decision is free from any jurisdictional error.  In respect of the grounds of review advanced, I agree with the Minister’s submissions. 

6. Ground One contends that the Tribunal failed to consider all aspects of the applicant’s claims. The ground is wholly unparticularised and is a bare assertion. It is not apparent, either from Ground One or from the evidence before the Court which aspect of his claims the applicant alleges the Tribunal failed to consider. The Tribunal’s decision record reveals that the Tribunal considered the applicant’s claims in detail and, on the basis of its adverse credibility findings, rejected those claims.

7. It is well established that the Tribunal is not required to accept uncritically any and all claims advanced by the applicant.[21] Further, credibility findings are a matter par excellence for the Tribunal.[22] Ground One does not raise an arguable case that the Tribunal committed a jurisdictional error.

   [21] Randhawa v Minister for Immigration (1994) 52 FCR 437 at 451 per Beaumont J

   [22] Re Minister for Immigration; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J

8. By Ground Two, the applicant contends that the Tribunal failed to consider his claim to fear harm on the basis of his political opinion as a separate and independent claim. The Tribunal’s decision record makes plain that the Tribunal considered whether the applicant was of adverse interest to anyone in Bangladesh for reason of his political opinion, but concluded that he was not.[23] Taken at its highest, Ground Two does no more than disagree with the findings and conclusions of the Tribunal.[24] Ground Two does not disclose any arguable case.

   [23] Tribunal Decision at [49]

   [24] Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259, 272.

9. Ground Three is a contention that the Tribunal failed to consider the general escalation of political violence in Bangladesh since 2012. There is no evidence before this Court to suggest that any such claim was ever advanced by the applicant, either before the Delegate or the Tribunal.

10. It is the function of the Tribunal to respond to the case that the applicant advances.[25] It cannot be a jurisdictional error on the part of the Tribunal to fail to respond to a claim not advanced by the applicant or a claim that does not clearly arise on the material before it.[26]

    [25] Dranichnikov v Minister for Immigration (2003) 197 ALR 389, 405 per Kirby J

    [26] Htun v Minister for Immigration (2001) 194 ALR 244, 259 per Allsop J

11. Ground Three does not specify how the applicant would be particularly affected by the general escalation of political violence in Bangladesh. In any event, where the Tribunal found that the applicant would not suffer from harm because of his imputed political opinion, it would logically follow that he would not suffer harm from generalised political violence.

12. Further, insofar as the applicant may be understood to complain that the Tribunal did not consider his risk of harm due to generalised violence in Bangladesh, s.36(2B)(c) of the Migration Act 1958 (Cth) (Migration Act) specifies that an applicant will not be at real risk of significant harm where the risk is one faced by the population of the country generally and not by the applicant personally.

13. For these reasons, Ground Three does not raise an arguable case for the relief claimed.

14. I conclude that the applicant has failed to demonstrate an arguable case on jurisdictional error by the Tribunal. The application will therefore be dismissed pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules).

15. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the court scale.  The Minister seeks the current scale amount on the basis that the work done was essentially undertaken after the commencement of the current scale.

16. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,606 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date: 6 September 2016