AHT16 v Minister for Immigration

[2017] FCCA 2696

FEDERAL CIRCUIT COURT OF AUSTRALIA

AHT16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2696

Catchwords:
MIGRATION – Application for review of Administrative Appeals Tribunal decision – show cause hearing – whether the Tribunal failed to consider a claim – whether the Tribunal misunderstood or misapplied the complementary protection criterion – no arguable case arises from the grounds of the application – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 476

Federal Circuit Court Rules 2001 (Cth), r.44.12

Cases cited:

SZVCH v Minister for Immigration & Anor [2015] FCCA 2950

General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125
Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598
Applicant A135/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 708
Applicant A163/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 677
Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62 Agar v Hyde [2000] HCA 41; (2001) 201 CLR 552; (2001) 173 ALR 665; (2001) 74 ALJR 1219
Xie v The Immigration Department [1999] FCA 365
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593
Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FCAFC 263; (2004) 144 FCR 1
Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389

Applicant: AHT16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 297 of 2016

Judgment of: Judge Nicholls

Hearing date: 30 October 2017

Date of Last Submission: 30 October 2017

Delivered at: Sydney

Delivered on: 13 November 2017

REPRESENTATION

Applicant: In person

Solicitors for the Respondents: Ms K Gawidziel of Australian Government Solicitor

ORDERS

1. The application made on 11 February 2016 is dismissed pursuant to Rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

2. The applicant pay the first respondent’s costs set in the amount of $3,606.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 297 of 2016

AHT16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 11 February 2016, seeking review of the decision of the Administrative Appeals Tribunal (“the Tribunal”), made on 15 January 2016 which affirmed the decision of the Minister’s delegate (“the delegate”) to refuse a protection (Class XA) visa to the applicant.

2. In evidence before the Court is a bundle of relevant documents filed and tendered by the Minister (“the Court Book” – “CB”, “RE1”). Also in evidence before the Court is an affidavit of the applicant made on 6 June 2016, which annexes a transcript of the applicant’s hearings before the Tribunal.

Before the Court

1. On 31 March 2016 various orders were made, by consent, by a Registrar of the Court for the progress of the matter. These included giving the applicant the opportunity to file any amended application and any further evidence by way of affidavit. The applicant did file further evidence by way of affidavit, however he did not file any amended application.

2. The applicant appeared before a Registrar of the Court at a mention on 4 August 2016, and various orders were again made on that date, including that the matter be set down for ashow causehearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the FCC Rules”), and orders directing the applicant and the Minister to file written submissions. The Minister filed written submissions on 23 October 2017. The applicant did not file any written submissions.

Background

1. The applicant arrived in Australia in July 1997 (CB 40). He entered Australia using an Indian passport, with a different name to that which is identified in the current application to the Court. At the time of the interview with the delegate, the applicant claimed that the Indian passport was fraudulent (CB 39.7), and that he was a citizen of Bangladesh (CB 5).

2. The applicant made his first application for a protection visa in September 1997 (CB 40). This was refused by the delegate, and later affirmed by the Refugee Review Tribunal (as it then was). The applicant then applied for judicial review to the Federal Magistrates Court (as it then was) and was unsuccessful. He then appealed to the Federal Court and then to the High Court (CB 40 to CB 41). His appeals were unsuccessful. He also made two unsuccessful applications for Ministerial intervention (CB 41).

3. The current application for a protection visa was made by the applicant on 5 February 2014 (received by the Minister’s department on 6 February 2014) (CB 1 to CB 33). At that time, he was assisted by a registered migration agent. In his application, the applicant claimed to fear harm on return to Bangladesh due to his support for the Bangladesh National Party (“BNP”) (CB 10). He claimed he would be targeted by members of the Awami League (“AL”), for supporting the BNP and due to his perceived wealth (CB 10). He further claimed that the authorities in Bangladesh would be “unable or unwilling” to protect him (CB 10). In his application he indicated a more detailed statement of his claims would be provided (CB 10 to CB 13). However, no detailed statement was subsequently provided to the Minister’s department.

4. It is apparent from the delegate’s decision record that the applicant attended an interview with the delegate on 29 May 2014 (CB 40.2). At the interview, the applicant also claimed to have married a Hindu woman in 1993, but later divorced her due to threats to his life made by members of his former wife’s family (CB 44.8). He also stated that he had significant health issues (CB 44.5).

5. The delegate refused the application for a protection visa on 30 June 2014. The applicant applied for review to the Tribunal on 24 July 2014 (CB 57 to CB 59). He continued to be assisted by a registered migration agent. He was invited to attend a hearing before the Tribunal on 7 July 2015 by letter sent by email to his representative nominated for that purpose on 11 May 2015 (CB 66 to CB 70). This was later rescheduled to occur on 12 August 2015 (CB 82 to CB 85).

6. On 28 May 2015, the applicant’s representative provided to the Tribunal a document entitled “Memorandum of Advice” (CB 71 and CB 75 to CB 77). On 30 June 2015, the applicant’s representative provided a Statutory Declaration of the applicant’s, of the same date, to the Tribunal (CB 78 to CB 81). The Statutory Declaration contained claims that the applicant was a “stateless person” ([4] at CB 79), and that he was suffering “significant medical issues” which would be unable to be treated, and which would prevent him from working in Bangladesh ([5] at CB 79).

7. The applicant attended the hearing before the Tribunal on 12 August 2015 and was assisted by an interpreter in the Bengali language. His bagla also attended (CB 90 to CB 93). The applicant provided a copy of a “Treatment Progress Report” from a psychologist at the Tribunal hearing (CB 94 to CB 97). The applicant’s representative provided further supporting documents to the Tribunal on 19 August 2015 (CB 100 to CB 147). The Tribunal informed the applicant at the hearing, that it would be only be considering his claims relating to the complementary protection criterion (that is, s.36(2)(aa) of the Act) ([15] at CB 192).

8. On 19 November 2015 the applicant’s representative wrote to the Tribunal, noting the decision in SZVCH v Minister for Immigration & Anor [2015] FCCA 2950, and submitted that the Tribunal was obliged to assess the applicant’s claims under both the Refugees Convention criterion (s.36(2)(a) of the Act), and the complementary protection criterion (s.36(2)(aa) of the Act) (CB 148). On 30 November 2015, the Tribunal invited the applicant to attend a further hearing (CB 169 to CB 173). The applicant and his representative attended the further hearing on 23 December 2015 (CB 179 to CB 182).

9. The Tribunal affirmed the delegate’s decision on 15 January 2016 (CB 188 to CB 204). In light of its review of the relevant authority, and evidence that the applicant’s first application for a protection visa was refused on the basis of the Refugee’s Convention criterion (s.36(2)(a) of the Act), the Tribunal only considered the applicant’s claims in relation to the complementary protection criterion (s.36(2)(aa) of the Act) (see [19] at CB 193 to [26] at CB 194).

10. At [27] (at CB 195) of its decision record, the Tribunal accepted that the applicant had a number of medical conditions which impacted on his ability to recall specific dates and time periods. It therefore did not make any adverse findings of credibility in relation to the applicant based on his inability to recall dates and time periods.

11. However, it was otherwise not satisfied that the applicant was a witness of truth. This is because when the Tribunal put the information in his first protection visa application, and subsequent Refugee Review Tribunal decision, in relation to that application, to the applicant, he did not satisfactorily explain the significant differences in the claims he made in relation to his first protection visa application and those in his second protection visa application (see [29] at CB 195 to [34] at CB 196).

12. In relation to the applicant’s claim that he was a member of the BNP, the Tribunal found that he was not telling the truth. It noted that his claim to be a supporter of the BNP was made “many years” after he arrived in Australia and “many years” after his first protection visa application ([39] at CB 197). Further, the Tribunal found that even if it accepted that the applicant had been involved with the BNP, given he had not been in any contact with the BNP since 1997, it did not accept he “would have a political opinion of support for the BNP in the future, or that he would be perceived as a supporter of the BNP” now ([40] at CB 197 to CB 198).

13. The Tribunal found that the applicant would not be perceived as being wealthy on return to Bangladesh, and therefore would not be targeted for that reason ([44] at CB 198 to CB 199). In making this finding the Tribunal had regard to relevant country information, which did not suggest that there was any targeting of people returning from Australia who were perceived to be wealthy ([43] at CB 198).

14. In relation to the applicant’s claim to be “stateless”, the Tribunal had “considerable concerns” about his credibility ([47] at CB 199). It was not satisfied that the applicant would be unable to obtain a Bangladeshi passport and found that he did not lose his nationality. Further, it did not accept that he would be prosecuted for leaving Bangladesh with a fraudulent Indian passport ([49] at CB 199).

15. The Tribunal considered the applicant’s claims relating to his medical conditions, and his ability to find employment to afford medical treatment in Bangladesh ([50] at CB 200 to [59] at CB 202). The Tribunal noted the applicant’s considerable experience in the “restaurant/function centre/food preparation industry”, and found that he was able to work full time in Australia until recently. It was not satisfied that he would be unable to find employment in Bangladesh due to his lack of education or his medical issues ([53] at CB 200 to CB 201 and [55] at CB 201). The Tribunal considered the medical services available in Bangladesh and found that while they may not be adequate for the large population, the inadequacy is not due to an “intention to mistreat people” ([58] at CB 202). Therefore it found that “the inadequacies of the Bangladeshi healthcare system … [do] not involve significant harm” ([59] at CB 202).

16. Finally, in relation to the applicant’s claim to have been previously married, the Tribunal noted its concern that this claim was first raised by the applicant in his interview with the delegate, and the applicant had provided an inconsistent explanation of the delay in making this claim ([61] a CB 202 to CB 203). It was not satisfied that the applicant was married to a Hindi woman, and that their families did not accept the marriage, and therefore did not accept that the applicant would be at a “real risk” of “significant” harm for this reason ([61] at CB 202 to CB 203).

The Application before the Court

1. The application before the Court contains the following grounds (I note the final ground has been obscured in the copy filed with the Court):

   “1. The Tribunal Member failed to consider the complexities of my claim to fear harm if returned to Bangladesh because there will be a perception that I am wealthy because I have lived in a Western country for decades. He sites the fact that wealthy people and foreigners reside safely in Bangladesh. He does not consider the difference in their circumstance and the circumstances I will be in. Rich people in Bangladesh live in guarded communities and have permanent protection. I will have no protection from people who perceive me as rich, because I will be poor.

   2. The Tribunal member erred when he assumed that I would be fit for full time work in Australia soon. There is a treatment plan, but its conclusion to full time work depends on my health improving. He also did not consider how my treatment plan would continue.

   3. The Member failed to consider the very different working conditions in Australia and Bangladesh. [H]ow paid worke in Bangladesh is long hours + sweatshop conditions, and this is publicly known in Australia.

   4. The RRT failed to consider my ability to access treatment for my mental and physical Health.

   5. The RRT failed to consider the fact the healthcare in Bangladesh is expensive and will be unaffordable for me.

   6. The RRT failed to consider my [claims] cumulatively, Ie if I don’t get work or can’t work how do I get the treatment. If I am sick how do I get work.

   7. The member states that I will not be subjected to deprivation of life, torture etc however he does not examine… [the remainder of the ground does not appear on the Court’s copy of the application, however I note that it would appear that the applicant meant to contend that the Tribunal did not adequately consider the complementary protection criterion in this ground.]”

   [Errors in the original.]

2. As set out above, this matter was set down for a show cause hearing pursuant to Rule 44.12 of the FCC Rules. The issue for the Court is whether the grounds of the application raise a legally arguable case for the relief that the applicant seeks. From what is noted on his application, the relief the applicant seeks is an order that the Tribunal’s decision be quashed, and that his case be returned to the Tribunal for reconsideration according to the law.

3. In the circumstances, if the Court cannot be satisfied that an arguable case is raised against the Minister, the application will be dismissed. Given the summary nature of any such dismissal, the application should only be struck out where there is no real question to be tried, where the claims are clearly untenable and cannot succeed (General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 especially at [8] – [9], Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598, Applicant A135/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 708 at [3] – [6] and Applicant A163/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 677 at [1]), the claims are groundless (Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62), where there is a high degree of certainty about the outcome (Agar v Hyde [2000] HCA 41; (2001) 201 CLR 552; (2001) 173 ALR 665; (2001) 74 ALJR 1219), or it is a hopeless case that would fail if it were to go to a final hearing (Xie v The Immigration Department [1999] FCA 365).

4. At least five of the applicant’s grounds allege that the Tribunal failed to consider various aspects of the applicant’s claims. It is the case that a failure to consider a claim to fear harm as presented in evidence or submissions which is expressly made or clearly arising, or a failure to address a substantial, clearly articulated argument relying on established facts may lead to revelation of jurisdictional error (Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593, Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244, NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FCAFC 263; (2004) 144 FCR 1 and Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389).

5. However, it is clear given the evidence before the Court, that the applicant has not understood the difference between a failure by the Tribunal to consider his claims and evidence, and the Tribunal’s rejection of the truth of those claims.

6. For the most part, the Tribunal found that the applicant was not a witness of truth. It gave reasons for this. The Tribunal’s rejection of the applicant’s claimed fear of harm does not reveal a failure to consider those claims in circumstances where the Tribunal’s findings were reasonably open to it on what was before it.

7. In relation to grounds one, three, four, five and six, the Tribunal did consider the applicant’s various claims. That is, the harm he would suffer because he would be perceived to be wealthy, the different working conditions in Bangladesh, his ability to access medical treatment, the expense of healthcare in Bangladesh, and his capacity to work in Bangladesh.

8. The applicant’s grounds seek impermissible merits review. No arguable case arises in the circumstances.

9. In relation to ground two, the Tribunal found that the applicant had been working in Australia despite various medical conditions and continued to work part-time. The Tribunal was not satisfied he would be unable to find work in Bangladesh. Again there is no substance in this ground. No arguable case arises in the circumstances.

10. As stated by the Minister, ground seven appears to contend that the Tribunal did not adequately consider the complementary protection criterion (s.36(2)(aa) of the Act and see [52] of the Minister’s written submissions). The Tribunal set out the relevant law in relation to the complementary protection criterion. There is nothing to show that the Tribunal misunderstood or misapplied the complementary protection criterion. There is no substance to ground seven and no arguable case arises.

11. Before the Court, the applicant claimed that he did not draft the grounds of the application. These had been drafted by a “friend”. He stated that he could not understand and could not remember what was in the grounds of his application to the Court.

12. In these circumstances, I asked the interpreter to translate each of the grounds for the applicant. In essence, the applicant’s submissions were that he needed extensive medical treatment, and in particular, that he wanted to remain in Australia so that he could obtain such treatment.

13. The applicant was accompanied to Court by a “friend” (Ms Peterson). I did not understand her to be the “friend” who had drafted the grounds of the application. I allowed her to make any submissions on the applicant’s behalf. In essence, she repeated the applicant’s claims concerning his medical treatment needs. The applicant further added that he could not afford medical treatment in Bangladesh.

14. The question of the applicant’s medical treatment was raised before the Tribunal. In particular at [50] (at CB 200) to [59] (at CB 202), the Tribunal gave extensive consideration to the applicant’s claims in this regard, including what would likely occur to him if he were to return to Bangladesh, given his claimed medical condition. The Tribunal’s findings were all reasonably open to it on what was before it. No arguable case arises in these circumstances.

Conclusion

1. No arguable case for the relief that the applicant seeks arises from the grounds of the application. Nor could I otherwise see that any of the circumstances presented had any indication of any legally arguable ground. In the circumstances it is appropriate to dismiss the application. I will make that order.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date:  13 November 2017