Aje16 v Minister for Immigration

[2016] FCCA 2480

FEDERAL CIRCUIT COURT OF AUSTRALIA

AJE16 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2480

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:
Appellant P119/2002 v Minister for Immigration [2003] FCAFC 230
Minister for Immigration v Jia Legeng (2001) 205 CLR 507
Minister for Immigration v SZJSS (2010) 243 CLR 164
Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259
NAHI v Minister for Immigration [2004] FCAFC 10
Perera v Minister for Immigration (1999) 92 FCR 6
SCAA v Minister for Immigration [2002] FCA 668
Singh v Minister for Immigration (2001) 115 FCR 1
Soltanyzand v Minister for Immigration[2001] FCA 1168
Tran v Minister for Immigration [2004] FCAFC 297
VFAB of 2002 v Minister for Immigration (2003) 131 FCR 102
WABC of 2002 v Minister for Immigration [2002] FCAFC 286

Applicant: AJE16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 350 of 2016

Judgment of: Judge Driver

Hearing date: 26 September 2016

Delivered at: Sydney

Delivered on: 26 September 2016

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms S Sangha of Mills Oakley

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 350 of 2016

AJE16

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 (Tribunal).  The decision was made on 21 January 2016.  The Tribunal affirmed a decision of the delegate of the Minister (delegate) not to grant the applicant a protection visa.

2. Background facts relating to the applicant’s claims and the decision of the Minister’s delegate and the Tribunal on them are set out in the Minister’s outline of legal submissions filed on 19 September 2016. 

Background

1. The applicant is a citizen of Bangladesh who arrived in Australia on 4 December 2012[1] and applied for protection on 23 May 2013.[2] He claimed to fear harm from members of the Awami League (AL) on the basis of his involvement with the Bangladesh Nationalist Party (BNP).

   [1] Court Book (CB) 86

   [2] CB 1-71

2. The applicant claimed that his father was a long standing member of the BNP. In 2008, the applicant and his elder brother joined the BNP and began attending meetings and rallies in order to “re-establish their family’s identity in the BNP”. He claimed that he was targeted after the Awami League won the majority of seats in Parliament in 2009. In late 2009, some men knocked on his door and called out his name but later left. This caused the applicant to stop attending BNP events and to avoid politics. He had no issues for a couple of years, until in May 2012, the applicant and his brother recommenced involvement with the BNP in order to support the Islamist party Jamaat-e-Islami. In September 2012, he was awoken late at night by men “shouting and knocking at his door”. He claimed that they threatened to kill him if they ever saw him at a BNP rally. The applicant moved house to avoid the men, staying with friends and relatives. In mid-September 2012, some men came to his family home again and “abused” his family. His parents told the men they did not know the applicant’s whereabouts. The applicant made arrangements to depart the country using a people smuggler and a fraudulent passport. The applicant also claimed to fear harm as a failed asylum seeker.

The delegate’s decision

1. On 27 June 2014, the applicant, through his representative, was invited to attend an interview before the delegate scheduled for 14 July 2014.[3] The applicant attended the interview.[4]

   [3] CB 72-74

   [4] CB 88)

2. On 11 August 2014, the delegate made a decision refusing to grant the applicant a Protection visa.[5] On the basis of significant inconsistencies, the delegate did not accept the applicant’s material claims.[6] The delegate was not satisfied that the applicant faced a real chance of serious harm[7] or significant harm[8] upon return to Bangladesh.

   [5] CB 85-97

   [6] CB 91-92

   [7] CB 94

   [8] CB 95-96

The Tribunal’s proceedings

1. On 15 September 2014, the applicant lodged with the Tribunal an application for review of the delegate’s decision.[9] A copy of the delegate’s decision was uploaded with the application and provided to the Tribunal.[10]

   [9] CB 98-99

   [10] CB 99

2. On 11 November 2015, the Tribunal invited the applicant to attend a hearing on 10 December 2015,[11] which was rescheduled to 15 January 2016.[12] The applicant attended the interview.[13] The applicant’s representative provided a detailed written submission and documents on 1 December 2015.[14]

   [11] CB 104-108

   [12] CB 120-122

   [13] CB 162-164

   [14] CB124-156

The application for Judicial Review

1. In its decision made on 21 January 2016, the Tribunal affirmed the delegate’s decision not to grant the applicant a Protection visa.[15]

   [15] CB 165-179

2. The Tribunal found the applicant gave inconsistent evidence in relation to “relevant matters”.[16] For example, the applicant told the delegate that his father was no longer the Secretary of the local branch of the BNP but at the Tribunal hearing stated that he was still acting in that role.[17] The Tribunal found the applicant was unable to provide any plausible explanation for the inconsistency in his evidence. The applicant also gave inconsistent evidence regarding the timing of the claimed threats by members of the AL.[18] The Tribunal did not accept the applicant’s explanation that the stress of giving evidence accounted for the inconsistencies in his evidence.[19]

   [16] CB 177 [58]

   [17] CB 177 [59]

   [18] CB 177 [60]

   [19] CB 177 [61]

3. The Tribunal also did not accept the applicant’s explanation that he did not have a membership card because membership records were not required.[20] The Tribunal found that the BNP Constitution stated that the list of members was held at the local and national level.[21] The Tribunal had regard to two statements provided by the President of the BNP and the applicant’s father attesting to his membership of the BNP.[22] However, the Tribunal had doubts about the genuineness of the statements and concluded that the statements were contrived given that they were “almost word for word the same in content”.[23] The Tribunal ultimately gave no weight to the statements.[24] The weight to be afforded to documents was a matter solely for the Tribunal to determine as part of its statutory function.[25]

   [20] CB 177[ 62]

   [21] CB 177[62]

   [22] CB 177-178 [63]

   [23] CB 177 [63]

   [24] CB 178 [63]

   [25] Tran v Minister for Immigration [2004] FCAFC 297 at [5]; Minister for Immigration v SZJSS (2010) 243 CLR 164 at [35]

4. The Tribunal did not accept that the applicant’s political involvement at a grassroots level explained his “total lack of knowledge” of a party he claimed to have obtained formal membership of and in which his father has a long history of involvement.[26] The Tribunal accepted that the applicant, with his limited education and rural background, may not be well placed to articulate party policies and platforms in detail, but found that he should have been able to describe, at a minimum, the party flag and some of the key principles for which the party stands.[27] Further, the applicant offered no detailed explanation of the type of activities he claimed to have been actively involved in.[28] The Tribunal did not accept the applicant’s explanation that his lack of knowledge was consistent with his length of involvement or his claim to have joined the party due to the need for protection and a desire to get ahead rather than any political ideology.[29]

   [26] CB 178 [64]

   [27] CB 178 [64]

   [28] CB 178 [64]

   [29] CB 178 [65]

5. Given the above concerns, together with the applicant’s lack of political activity in Australia, the Tribunal was not persuaded that the applicant intended to engage in any political activity in Bangladesh.[30] The Tribunal found that the applicant had not been truthful about his claims and that he was not a credible witness.[31] The Tribunal rejected his claims to fear harm entirely.[32] The Tribunal considered independent country information which revealed that the general attitude of the Bangladeshi government to people who have arrived by boat was relatively sympathetic and that the proposed actions by the authorities are targeted at organisers or facilitators of people smuggling. The Tribunal was unable to find any independent country information which indicated that the Bangladeshi government was seeking to punish failed asylum seekers on their return to Bangladesh.[33] Accordingly, the Tribunal was not satisfied that the applicant would face adverse attention on his return as a failed asylum seeker.[34]

   [30] CB 178 [66]

   [31] CB 178 [67]

   [32] CB 178 [67]

   [33] CB 178-179 [68]

   [34] CB 178-179 [68]

6. The Tribunal also had “reservations” regarding the applicant’s claim to have breached Bangladeshi law by departing unlawfully. The Tribunal found that while Bangladeshi law proscribes a penalty of imprisonment up to a year or a fine, the Tribunal found no independent country information concerning enforcement of these laws.[35] The Tribunal was not satisfied that there was evidence to establish that the law would be enforced against the applicant on his return to Bangladesh.[36] The choice and the assessment of the weight to be given to the available independent country information were matters for the Tribunal.[37]

   [35] CB 179 [69]

   [36] CB 179, [69]

   [37] NAHI v Minister for Immigration [2004] FCAFC 10 at [11]-[13]

7. The Tribunal concluded that the applicant did not satisfy ss.36(2)(a) or 36(2)(aa) of the Migration Act 1958 (Cth) (Migration Act).[38]

   [38] CB 179 [70]-[72]

Present proceedings

1. These proceedings began with a show cause application filed on 17 February 2016.  The grounds in that application are expressed in narrative form but three grounds are discernible.

   1.The AAT erred in law and erred in making findings of well founded fear. The Tribunal wrongly applied the law to the fact

   as found to relation to the seriousness of harm that constitute persecution as a member of a particular social group and due to the political opinion presented the applicant claims.

   Particulars:

   Section 91 R 910 9B0 79c0 OF THE Migration Act requires the persecution to be of serious harm and systemic discriminatory. During hearing the Tribunal adopted a line of questioning designed to establish the harm from the perspective of the applicant persecute asking why be harmed rather than address as to the motive. The applicant claims that the AAt misconstrued the facts.

   2.The applicant claims that the Tribunal discarded all the considerations and precautions  without giving any solid evidence of any fabricated documents submitted by the Tribunal at the time of Delegate interview or the Tribunal hearing. The applicant claims he was denied natural justice and procedural fairness when the Tribunal did not accept any written or oral evidence. It made decision with closed mind.

   Particular: In the decision the  AAT found  that there were some discrepancies and inconsistency between he gave at the Tribunal hearing and his written claims and the statements he made at the protection interview. at Immigration Detention Centre , which was included in the Departmental file. Applicant claims that the Tribunal misunderstood or mistook the facts.

   At the time of hearing the applicant was nervous and could not understand what the Tribunal is asking and what the Bangali Interpreter is telling to the Member. The applicant found at many places during the hearing the Interpreter did not convey his words in English language to the Tribunal Member.

   The Tribunal intentionally asked the question in such a manner the applicant was confused about the questions and was unable to answer the questions.

   The applicant claims he was denied procedural fairness when the hearing was not conducted in a judicial manner and judicial hearing environment.

   Applicant claims that he had no ability to express his evidnece orally. He was always confused about what he is saying and what he understood the questions asked by the Tribunal.

   3.The Refugee Review Tribunal made a jurisdictional error when it failed to real test of persecution and harm according to the Migration Act The Tribunal failed to apply the correct test in relation to the complementary Protection Provision contained in section 36(2)(aa) of the Migration Act 1958 The Tribunal made a jurisdictional error when it did not follow Rules of Real Risk Test or persecution and harm .

   Particulars:

   The Tribunal raised several irrelevant issues to discredit the facts. Applicant told the facts based on truth. He said that he has genuine fear from the supporters of Awami League. If he is compelled to go back he will be killed by the Awami League supporters. He said that he has no reasonable protection from the local authorities . He claims that the that there is no reasonable protection from the Bangladesh Government.

   . The applicant is in Australia. He requested his brother to provide evidence of possibility of danger to the applicant’s life. from the Awami Leagues party workers . The applicant claims The Tribunal ignored the relevant consideration related with complementary

   Protection set out in s 36(2)(aa). The harm or the mistreatment feared by the applicant on return is for reason of one or more of five grounds of recognized in the Refugee Convention. Applicant’s fear of harm is well-founded and that there is a real chance that he will suffer persecution if he returned to Bangladesh. (errors in original)

2. The application is supported by a short affidavit filed with it which I received.  I also have before me as evidence the court book filed on 6 April 2016.  Only the Minister filed written submissions in accordance with procedural orders made by a registrar to prepare the case for today’s hearing.  Those were read to the applicant before I came on the bench.  I invited oral submissions from the applicant.  It was apparent that he is dissatisfied with the Tribunal decision.  He is concerned about questions he was asked by the Tribunal; he is concerned about the Tribunal’s adverse findings on credibility.  He is adamant that his fear of harm in Bangladesh is real and that he cannot return there. 

3. Unfortunately for him, however, he was not able to advance any argument pointing to any jurisdictional error by the Tribunal.  The Minister’s submissions attempt to grapple with the grounds of review advanced.  I agree with those submissions.

The first “ground”

1. This ground is difficult to understand, but appears to contend that the Tribunal “misconstrued the facts” because of the questions put to him in relation to his fear of harm. Relevantly, the Tribunal put to the applicant that his oral and written claims were inconsistent[39] and asked the applicant what prompted his decision to leave Bangladesh.[40] The Tribunal plainly had serious concerns about the applicant’s credibility and it was entitled to confront him with the inconsistencies and implausibilities in his evidence. In assessing the applicant’s claims for protection, it was open to the Tribunal to resolve questions of credit, attribute weight to particular evidence and consider the inherent improbability of events.[41] The Tribunal conclusions were open to it on the material before it.

   [39] CB 175-176 [52]

   [40] CB 176 [53]

   [41] Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 at 281-282

The second “ground”

1. This ground asserts bias on the part of the Tribunal and states that the Tribunal intentionally asked the applicant questions in a manner that caused confusion. In order to succeed in an allegation of bias, the applicant must establish that the Tribunal member had a pre-existing state of mind which disabled her from undertaking or rendered her unwilling to undertake any proper evaluation of the relevant materials before her which were relevant to the decision to be made. An allegation of bias is a serious allegation which must be firmly and distinctly made and clearly proven.[42] It is a rare case in which a court will find that a decision maker has breached the natural justice hearing rule by exhibiting bias based simply upon the decision maker’s reasons. Further, no inference of bias or prejudgment should be drawn from the mere fact of adverse findings in the Tribunal’s reasons.[43]

   [42] Minister for Immigration v Jia Legeng (2001) 205 CLR 507 at [531]

   [43] VFAB of 2002 v Minister for Immigration (2003) 131 FCR 102 at [21]; SCAA v Minister for Immigration [2002] FCA 668 at [38]; WABC of 2002 v Minister for Immigration [2002] FCAFC 286 at [3]

2. This ground also alleges interpretation errors as an explanation for inconsistencies in the applicant’s evidence. For an applicant to establish that they have been denied a fair hearing because of interpretation problems, they must show one of the following:

   a)the standard of interpretation at the Tribunal hearing was so inadequate that the applicant was prevented from giving evidence to the Tribunal, or

   b)errors made in interpretation at the Tribunal hearing were material to the conclusion of the Tribunal and adverse to the applicant.[44]

   [44] Appellant P119/2002 v Minister for Immigration [2003] FCAFC 230 at [17]; Singh v Minister for Immigration (2001) 115 FCR 1; Perera v Minister for Immigration (1999) 92 FCR 6; Soltanyzand v Minister for Immigration[2001] FCA 1168

3. The Tribunal hearing record demonstrates that a Bengali interpreter was present at the Tribunal hearing[45] and the Tribunal’s summary of the hearing[46] is the only evidence currently available of what occurred. It does not record any issue being raised about the standard of interpretation or indicate that the applicant had difficulty communicating with the Tribunal member. There is currently no evidence before the Court to establish that the applicant was prevented from giving evidence to the Tribunal. Accordingly, this complaint cannot succeed.

   [45] CB 162

   [46] CB 174-177 [41]-[57]

The third “ground”

1. This ground contends that the Tribunal erred in its consideration of complementary protection criteria. However, the particulars in support merely repeat the applicant’s claims for protection. This ground seeks impermissible merits review of the Tribunal’s decision and cannot succeed.[47]

   [47] Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 at [272]

2. I conclude that the applicant is unable to demonstrate an arguable case of jurisdictional error by the Tribunal. 

3. I will, accordingly, dismiss the application pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

4. In consequence of the dismissal of the application the Minister seeks an order for costs in accordance with the court’s current scale.  The applicant claims impecuniosity but, as has been repeatedly stated, that is not a reason for the Court to refrain from making a costs order. 

5. 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 (Cth).

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date: 27 September 2016