AJE16 v Minister for Immigration and Border Protection
[2017] FCA 290
•22 March 2017
FEDERAL COURT OF AUSTRALIA
AJE16 v Minister for Immigration and Border Protection [2017] FCA 290
Appeal from: Application for leave to appeal: AJE16 v Minister for Immigration and Border Protection & Anor [2016] FCCA 2480 File number: NSD 1715 of 2016 Judge: O'CALLAGHAN J Date of judgment: 22 March 2017 Catchwords: MIGRATION –application for leave to appeal from an interlocutory decision of the Federal Circuit Court of Australia – whether decision attended by sufficient doubt to warrant grant of leave – application dismissed Legislation: Federal Court of Australia Act 1976 (Cth), s 24(1A)
Migration Act 1958 (Cth), s 36(2)(a) and (aa)
Federal Circuit Court Rules 2001 (Cth), r 44.12
Cases cited: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397
Date of hearing: 8 March 2017 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 23 Counsel for the Applicant: Applicant appeared in person Counsel for the First Respondent:
Ms B Rayment Solicitor for the First Respondent:
Mills Oakley Counsel for the Second Respondent:
The Second Respondent filed a submitting notice save as to costs ORDERS
NSD 1715 of 2016 BETWEEN: AJE16
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
O'CALLAGHAN J
DATE OF ORDER:
22 MARCH 2017
THE COURT ORDERS THAT:
1.The application for leave to appeal be dismissed.
2.The applicant pay the first respondent’s costs, as agreed or assessed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
O’CALLAGHAN J:
This is an application for leave to appeal from a decision of the Federal Circuit Court of Australia (FCCA) dismissing the applicant’s judicial review application under to r 44.12 of the Federal Circuit Court Rules 2001 (Cth). A decision under r 44.12 is interlocutory, so leave is required to appeal to this Court: Federal Court of Australia Act 1976 (Cth), s 24(1A).
Background
The applicant is a citizen of Bangladesh who arrived in Australia on 4 December 2012 and applied for a protection visa on 23 May 2013. A delegate refused that application on 11 August 2014. The applicant sought review of the delegate’s refusal in the Administrative Appeals Tribunal (the Tribunal). The Tribunal conducted a hearing on 15 January 2016 and, on 21 January 2016, affirmed the delegate’s decision. The applicant subsequently sought judicial review of that decision in the FCCA and that application was dismissed on 26 September 2016.
The applicant’s protection claim is made on the basis that his involvement, and that of members of his family, in the Bangladesh Nationalist Party (BNP) has made him a target of the Awami League. He further claims that he is at risk of punishment by the Bangladeshi government for having left the country illegally.
The Tribunal proceeding
The Tribunal considered whether the applicant met the criteria in s 36(2)(a) of the Migration Act 1958 (Cth) (the Act), on the basis of being a refugee, or the criteria in s 36(2)(aa), on the basis of there being substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk that he would suffer significant harm.
The applicant claimed, in summary, that:
(a)His father had served for a long time in the BNP, including as Secretary of the local branch.
(b)He and his brother joined the BNP in 2008 and, in 2009, were harassed by members of the Awami League, allegedly on the basis of that political affiliation. As a result of that harassment, the applicant subsequently avoided politics and stopped attending BNP meetings.
(c)He remained politically inactive until 2012, when he resumed his involvement with the BNP. The same year, he was harassed by men who came to his house and threatened to kill him if he attended another BNP rally. To avoid the men, he moved house and stayed with friends for several months.
(d)After he moved out of the family home, the men returned and abused his family. His parents told the men that they did not know where the applicant was.
(e)He left Bangladesh on a fraudulent passport, with the assistance of people smugglers.
In determining the application, the Tribunal identified several inconsistencies in the applicant’s evidence. First, he had provided inconsistent evidence as to his father’s role in the BNP: Tribunal’s reasons at [59]. Secondly, he had given inconsistent evidence about the timing of key events, with a discrepancy of some years in one instance: Tribunal’s reasons at [60]. Thirdly, the applicant was unable to substantiate his claim to membership of the BNP. He claimed, contrary to what was stated in the BNP Constitution, that the BNP did not keep membership records (Tribunal’s reasons at [62]). Further, he could not describe the party flag; was unable to identify the party’s four key principles; and could not detail the activities in which he claimed to be involved (Tribunal’s reasons at [64]). Moreover, two documents provided to the Tribunal in support of the applicant’s claim to be a member of the BNP bore linguistic similarities, which, the Tribunal considered, were an indication that they were fabrications (Tribunal’s reasons at [45], [63]).
The Tribunal found that the applicant was unable to provide a plausible explanation for any of the identified inconsistencies, which undermined his credibility. The Tribunal rejected the entirety of his claims concerning his political involvement and that of his family members, his reasons for leaving Bangladesh and the perceived threats posed by the Awami League: Tribunal’s reasons at [67]. Having regard to certain country information, including a report produced by the Department of Foreign Affairs and Trade, the Tribunal also did not accept that the applicant was at risk of punishment by the Bangladeshi government upon his return to the country: Tribunal’s reasons at [68]-[69].
On the basis of these factual findings, the Tribunal was not satisfied that the criteria in s 36(2)(a) or (aa) of the Act were met.
The FCCA proceeding
The applicant sought judicial review of the Tribunal’s decision in the FCCA. On appeal, the applicant challenged the Tribunal’s findings on credit, contended that he was denied procedural fairness (on the basis of bias and alleged deficiency in the interpreting services with which he was provided) and claimed that the Tribunal had misapplied s 36(2)(aa) of the Act.
With respect to the first ground, the primary judge relevantly held that the Tribunal’s conclusions were open on the material before it and that “it was open to the Tribunal to resolve questions of credit, attribute weight to particular evidence and consider the inherent probability of events”: primary judge’s reasons at [19]. With respect to the second ground, the allegations of bias and interpreter error could not be proved on the basis of the applicant’s reliance on the Tribunal’s reasons alone: primary judge’s reasons at [20]. The primary judge considered that the third ground merely restated the applicant’s claims for protection and sought impermissible merits review of the Tribunal’s decision: primary judge’s reasons at [23].
The application in this Court
The applicant’s proposed grounds of appeal are contained in the application for leave to appeal filed in this Court on 6 October 2016 and in a draft notice of appeal accompanying that application.
The application for leave to appeal states three grounds:
1.Hon Judge Driver of the Federal Circuit Court failed to hold that the Tribunal committed a jurisdictional error when it failed to apply the correct test of persecution in relation to the Complementary Protection Visa Provision contained in section 36(2) (aa) of the Migration Act 1958. The AAT failed to separate the claim to be refugee and fear of harm test for the provision of the Complementary Protection.
2.Hon. Judge failed to hold that the Tribunal made an error of law when it did not take up and separately deal with the factual issues. The Tribunal failed to find difference between a Reasonable Relocation and Unreasonable Relocation. The Tribunal failed to understand the geographical situation of Bangladesh and concluded that the appellant will not suffer from any harm if he goes to other areas which is not feasible.
3.The appellant was denied procedural fairness when the Tribunal made opinion based on assumption and possibilities. The Tribunal failed to assess the current situation in Bangladesh where thousands of Bangladesh Nationalist Party workers are arrested recently and harassed by the Awami League government Authority. In assessing danger to the Appellant the Tribunal undermined the danger he will face if he is compelled to return Bangladesh as returned Asylum seeker.
The draft notice of appeal contains three further grounds:
1.The judge of the Federal Circuit Court in his honourable judgement delivered on the 26th September 2016 failed error of law and relief under the judiciary Act. He failed to find that the Administrative Appeals Tribunal (AAT) has not found any evidence in relation to may claims and thus its decision influenced by sufficient doubt.
2.The Administrative Appeals tribunal's decision was affected by the recent High Court reported decision.
3.Besides, the Administrative Appeals Tribunal did not follow the proper procedure as required by the Act in arriving its decision dated 21 January 2016 in deciding my protection visa review application. Thus, the procedures that were required by the act or regulations to be observed in connection with the making of the decision were not observed.
The applicant’s affidavit filed 6 October 2016 also makes a number of general, unparticularised claims concerning the correctness of the primary judge’s decision, namely that: the primary judge dismissed the application “without giving any reasonable grounds”; the primary judge failed to “[take] into account all relevant grounds…”; the applicant was denied procedural fairness; and the primary judge “failed to identify the error made by the Administrative Appeals Tribunal”. The affidavit states further that the applicant “[w]ill provide more detail later”. No further details have been provided. Moreover, the applicant did not file any written submissions, nor did he wish to make oral submissions in support of the application for leave to appeal at the hearing before me on 8 March 2017.
I accept the Minister’s submission that the claims contained in the applicant’s affidavit fail to raise sufficient doubt as to the correctness of the primary judge’s decision. In any event, I do not consider that they add anything to the claims already made in the application for leave to appeal and the draft notice of appeal.
Consideration
In order for the applicant to obtain leave to appeal, I must be satisfied that in all the circumstances the decision of the FCCA is attended by sufficient doubt to warrant its reconsideration on appeal and, assuming that the decision is wrong, that substantial injustice would result if leave were refused: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-9.
Ground 1 of the application for leave to appeal claims that the primary judge erred by failing to find that the Tribunal did not apply the correct test in respect of s 36(2)(a) and/or (aa). Although the ground refers to persecution in the context of s 36(2)(aa), I take this ground to allege that the Tribunal conflated the tests prescribed by s 36(2)(a) and/or (aa) and assessed the applicant’s claims against each paragraph together. That submission is unsustainable. Having made detailed factual findings (including adverse credibility findings) at [58]-[69], the Tribunal considered the question of whether Australia owed the applicant protection obligations under the Refugee Convention (at [70]) before turning to consider whether there was a real risk that the applicant would suffer significant harm if removed from Australia (at [71]). That the same factual findings were the premise of each assessment does not, in my view, manifest error.
Ground 2 of the application for leave to appeal contends that the primary judge erred by failing to “take up and separately deal with the factual issues”. To the extent that this ground assumes that it was open to the primary judge to revisit the factual bases of the Tribunal’s decisions, it provides no arguable basis for impugning the primary judge’s decision. The FCCA’s function on appeal is to review for jurisdictional error, not revisit the merits of the matter. This ground also includes a claim about alleged findings as to relocation, which is irrelevant to the applicant’s case because, having determined that s 36(2)(a) and (aa) were not satisfied, the Tribunal was not required to determine, and did not determine, any question as to relocation.
Ground 3 of the application for leave to appeal contends that the applicant was denied procedural fairness “when the Tribunal member made opinion based on assumption and possibilities”. The limited particulars provided in respect of this ground refer to the Tribunal’s assessment of the conditions in Bangladesh and the risk faced by the applicant. It is thus apparent that this ground is in fact directed to an impermissible merits review of the Tribunal’s decision. In any event, the applicant was given the opportunity to, and did, put submissions to the Tribunal, with the assistance of both an interpreter and a representative, as well as the opportunity to address the Tribunal’s concerns as to his credibility and apparent inconsistencies in his evidence. This ground is without merit.
Ground 1 of the draft notice of appeal claims that the primary judge erred by failing to find that the Tribunal had “not found any evidence in relation to [the applicant’s] claims”. I accept the Minister’s submission that this ground misconceives the Tribunal’s function and again impermissibly seeks merits review. Having found the applicant’s evidence not to be credible, it was plainly open to the Tribunal to disregard it and, in the absence of other evidence in support of the claim, to find the criteria in s 36(2)(a) and (aa) not satisfied. In this respect, I accept the Minister’s submission (which is reflected in the primary judge’s reasons at [19]) that the Tribunal appropriately resolved questions of credit, attributed weight to particular evidence and considered the inherent improbability of events.
Ground 2 of the draft notice of appeal is not particularised and I accept the Minister’s submission that, without identifying the High Court decision said to be relevant and the way in which the Tribunal’s decision was affected by it, the ground cannot succeed.
Ground 3 of the draft notice of appeal is also not particularised. It does not specify the “procedures required by the Act or regulations” said not to have been followed. To the extent that this ground is intended to go further than the applicant’s claims with respect to procedural fairness, there is nothing in the Tribunal’s reasons that points to procedural irregularity. The Tribunal’s assessment of the applicant’s evidence was cogent and detailed. The Tribunal’s decision set out the evidence presented to it in respect of the applicant’s claims (at [12]-[40]); set out the questions that were asked of the applicant to seek to clarify what the Tribunal considered to be inconsistent and implausible aspects of his evidence, as well as his answers to those questions (at [41]-[57]); and then set out the Tribunal’s findings with respect to the applicant’s credibility and its reasons for rejecting his evidence (at [58]-[69]). The method of fact-finding adopted by the Tribunal was detailed, considered and entirely orthodox.
Conclusion
For the reasons given above, I am not satisfied that the decision of the FCCA is attended by sufficient doubt to warrant its reconsideration on appeal. The application for leave to appeal is dismissed. The applicant should pay the first respondent’s costs, to be agreed or assessed.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Callaghan. Associate:
Dated: 21 March 2017
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