Ahf17 v Minister for Immigration
[2018] FCCA 499
•1 March 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AHF17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 499 |
| 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 (Cth) Migration Act 1958 (Cth), ss.36, 424A, 425, 499 |
| Cases cited: ACC15 v Minister for Immigration [2016] FCA 97 Kopalapillai v Minister for Immigration (1998) 86 FCR 547 |
| Applicant: | AHF17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 37 of 2017 |
| Judgment of: | Judge Driver |
| Hearing date: | 1 March 2018 |
| Delivered at: | Sydney |
| Delivered on: | 1 March 2018 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms H Aitken of Sparke Helmore |
INTERLOCUTORY ORDERS
Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,606.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
PEG 37 of 2017
| AHF17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 20 December 2016. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa. Background facts relating to the applicant’s claims and the Tribunal’s decision on them are set out in the Minister’s outline of legal submissions filed on 22 February 2018.
The applicant, a citizen of Bangladesh and born in 1985, arrived in Australia on 14 July 2008 as the holder of a student (Class TU) (subclass 572) visa.[1] The last substantive visa held by the applicant was a student (Class TU) (subclass 572) visa, which ceased on 15 March 2012.[2] During intermittent periods, the applicant resided unlawfully in Australia as a non-citizen and held numerous bridging visas.[3]
[1] Court Book (CB) 76
[2] CB 76
[3] CB 76-77
On 8 August 2016, the applicant lodged an application for a protection visa.[4] The applicant applied for the grant of the visa on the basis that he feared harm from the authorities and members of the Awami League due to his involvement within the Bangladesh National Party (BNP).
[4] CB 1-37
The applicant’s claims
The applicant made the following factual claims in a statement attached to his visa application:[5]
a)he commenced his political involvement with the BNP in 2001. In 2002, he signed his name with the BNP’s student wing (Bangladesh Nationalist Jubodal) and started to attend all party meetings, rallies, conferences, protests and social work;
b)in mid-2003, the applicant was given the position of convenor in a ward in Dhaka and became very active and motivated. In mid-2004, he started to receive serious threats from Awami League members and leaders. As a result, the applicant and his family relocated in 2005 where he stayed inside all the time and did party work from home;
c)on 5 January 2007, whilst addressing a rally, police arrested the applicant and other BNP members for no reason. A false case was laid against him but he proved himself innocent on 20 March 2007. The applicant attended a further rally on 10 June 2007 and was attacked and threatened by a gang of 10-15 Awami League members while returning home. He was hospitalised and received stitches. The following day, the applicant complained to the police but was laughed at;
d)he decided to leave Bangladesh and was advised to apply for a student visa in Australia. Since arriving in Australia, Awami League members had told his parents that if he returned, he would be killed.
[5] CB 38-40
At the protection visa interview, the applicant provided further details of an incident in December 2004 during which he was threatened by three people while sitting out the front of his home due to a blackout.
On 24 October 2016, the delegate refused to grant the applicant a protection visa. The delegate found that the applicant was not a reliable witness and had greatly exaggerated his risk of harm.[6]
[6] CB 85
On 24 October 2016, the applicant applied to the Tribunal for review of the delegate’s decision.[7]
[7] CB 96
On 20 December 2016, the Tribunal affirmed the decision under review.[8]
[8] CB 147
Tribunal's decision
The Tribunal did not find the applicant’s claims regarding his political opinion, profile and activities to be credible.[9] It did not accept that the applicant was a member of the BNP or Jubodal, that he actively supported the BNP, or that he had held an official position as convenor.[10] In reaching these findings, the Tribunal:
a)found the applicant's evidence concerning his association with the BNP in 2001 to be vague and limited;[11]
b)found that the applicant gave inconsistent evidence in relation to whether he joined the youth wing or the student wing of the BNP in 2002;[12]
c)had difficulty accepting that if the applicant was appointed convenor in mid-2003, he would not have particular obligations attached to the role and instead be undertaking the same general activities that he had undertaken when he was a member of the youth wing;[13]
d)found it implausible that the applicant, who only started supporting the BNP in 2001 and became a member of the youth wing in 2002, would be appointed convenor in 2004;[14]
e)found it implausible that the applicant participated in social work for the BNP since 1999, when he was aged 14;[15]
f)found that, whilst the applicant had some basic knowledge of the BNP, he demonstrated limited awareness of other aspects of the party, including its objectives, which it expected the applicant would be able to articulate with clarity; he gave evidence that was inconsistent with country information with respect to whether the BNP was in power in the 2000s and whether the party was part of an alliance during the election;[16]
g)found that the applicant’s evidence that he did not know anything about protection visas was unconvincing and his delay of over eight years in lodging a protection visa application undermined the credibility of his claims.[17]
[9] CB 157 [39]
[10] CB 154 [23]
[11] CB 152 [18]
[12] CB 152 [19]
[13] CB 152 [20]
[14] CB 153 [21]
[15] CB 153 [21]
[16] CB 153 [22]
[17] CB 156 [36]
As the Tribunal did not accept the applicant’s claimed political membership, it did not accept that he experienced any problems in Bangladesh for that reason.[18]
[18] CB 154 [24]
The Tribunal did not accept that the applicant was threatened by the Awami League when he was sitting outside of his home in 2004, given that he had not referred to this incident in his detailed statement of claims and gave inconsistent evidence in relation to the incident.[19]
[19] CB 154-155 [25]-[27]
The Tribunal did not accept that the applicant was arrested or implicated in a false case brought against him, due to the variation in his evidence concerning when was arrested and the circumstances surrounding his arrest.[20] The Tribunal found that the applicant gave inconsistent evidence in relation to when he was attacked by the Awami League members subsequent to being arrested,[21] and that his evidence was inconsistent with country information that there was a ban on rallies, processions and meetings from January 2007 until September 2007.[22]
[20] CB 155 [30]
[21] CB 155 [32]
[22] CB 156 [33]
While the Tribunal accepted that the applicant may have received an injury to the back of his head and forehead, it did not accept that those injuries occurred as a result of being attacked by members of the Awami League or any other attack motivated by his political opinion.[23]
[23] CB 156 [34]
Relying upon its earlier credibility findings, the Tribunal also did not accept that the applicant faced a real chance of significant harm.[24] Accordingly, the Tribunal affirmed the decision under review.[25]
[24] CB 158 [43]
[25] CB 158 [47]
The present proceedings
These proceedings began with a show cause application lodged in Perth on 16 January 2017 while the applicant was in immigration detention. The applicant was subsequently granted a bridging visa and relocated to Sydney. The applicant continues to rely upon his show cause application. The grounds in it are:
1.Decision unfair to the applicant relying to much on country information and arbitrary. If proper consideration is not given then applicant face great harm and even death if return back to his country.
2.The assessor failed to consider all of applicant’s claims.
3.The assessor made wrong consider based on general information rather than consider my case, where every case is unique and different in detail.
4.The assessor has made jurisdictional errors in making decision as per Migration Act 36(a), (aa), (b), (c).
(errors in original)
I have before me as evidence, the applicant’s affidavit filed with this application and the court book filed on 27 July 2017.
Only the Minister provided written submissions in advance of today’s hearing.
I invited oral submissions from the applicant today. It is plain that he is dissatisfied with the Tribunal decision and is concerned that he was not believed. That concern extends to the documents he provided which were not accepted. The applicant sought ministerial intervention following the Tribunal’s decision, but apparently that request was not successful. The applicant impresses me as a sincere and gentle man who genuinely does not wish to return to Bangladesh. Unfortunately for him, however, he was unable to point to any arguable case of jurisdictional error by the Tribunal. His submissions went to the merits of the Tribunal decision. I agree with the submissions of the Minister of the grounds of review advanced.
Grounds 1 and 3 contend that that Tribunal placed too much weight on country information rather than considering the applicant’s case. First, it is well settled that the selection and weight of country information is a matter for the Tribunal.[26] Secondly, to the extent that the applicant cavils with any DFAT country information relied upon by the Tribunal, the Tribunal was obliged, pursuant to s.499(2A) of the Migration Act 1958 (Cth) (Migration Act), to comply with any Ministerial Direction made pursuant to s.499(1) of the Migration Act. Ministerial Direction No. 56 required the Tribunal to take into account any country information assessment prepared by DFAT expressly for protection status determination purposes, to the extent that it was relevant to the decision under consideration.
[26] NAHI v Minister for Immigration [2004] FCAFC 10 at [11]–[13]; Applicant NABD of 2002 v Minister for Immigration (2005) 216 ALR 1 at [8] per Gleeson CJ; NBKT v Minister for Immigration (2006) 156 FCR 419 at [81]–[84]
To the extent that Ground 1 can be read as a contention that the Tribunal’s reliance on country information was procedurally unfair, the complaint is directed at the outcome rather than the process. The Tribunal was not required to put to the applicant pursuant to s.424A the Migration Act the country information it relied upon. Such information was not specifically about the applicant and therefore, fell within the exception in s.424A(3)(a) of the Migration Act.[27] Insofar as it could be said that the Tribunal did not comply with s.425 of the Migration Act in relation to the country information, the applicant has not pointed to any issue of which he was not put on notice. As such, no jurisdictional error is established by Grounds 1 and 3.
[27] SZVJY v Minister for Immigration [2016] FCA 618 at [21]; ACC15 v Minister for Immigration [2016] FCA 97 at [29]
By Ground 2, the applicant makes a bald assertion that the “assessor” failed to consider all of his claims.
This ground largely invites the Court to undertake impermissible merits review.[28] The Tribunal was not obliged to uncritically accept the applicant’s claims and the weight to be given to those claims and evidence was a matter for the Tribunal to assess as part of its fact-finding function.[29] On the basis of adverse credibility findings, the Tribunal did not accept the applicant’s claims concerning his political opinion or profile activities. Nor did the Tribunal accept that the applicant had experienced any problems as a result of his claimed political involvement. Further, the Tribunal’s finding was based on the cumulative effect of the matters to which it had referred, including country information that was inconsistent with the applicant’s claims.[30] The Tribunal’s credibility findings in this regard were open to it on the material before it, and were based on rational grounds and arrived at upon consideration of matters that were logically probative to the issue of credibility.[31] As such, Ground 2 fails to establish jurisdictional error.
[28] Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259
[29] Randhawa v Minister for Immigration (1994) 124 ALR 265 at 278; Wu Shan Liang (supra) at 281–282
[30] W148/00A v Minister for Immigration (2001) 185 ALR 703 at [69]
[31] Re Minister for Immigration; Ex parte Durairajasingham (2000) 168 ALR 407; Kopalapillai v Minister for Immigration (1998) 86 FCR 547; CQG15 v Minister for Immigration [2016] FCAFC 146
By Ground 4, the applicant contends that the Tribunal “made jurisdictional errors in making [its] decision as per Migration Act s 36(a), (aa), (b), (c)”. To the extent that Ground 4 can be read as an assertion that the Tribunal applied incorrect law or rules in determining whether the applicant met the requirements for a protection visa, such a contention is without merit. The Tribunal correctly identified the statutory tests under s.36(2)(a) and (aa) of the Migration Act,[32] and applied those tests in its assessment of the applicant’s claims. Further, there is no evidence before the Court to indicate that the applicant claimed to be a member of the same family unit of a person who met s.36(2)(a) or (aa) such that s.36(2)(b) or (c) would apply. No jurisdictional error is established by Ground 4.
[32] at [4]–[8]
I conclude that the applicant is unable to demonstrate an arguable case of jurisdictional error by the Tribunal. The decision will therefore be dismissed under rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth). I so order.
I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,606.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 8 March 2018
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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