Ajt16 v Minister for Immigration
[2016] FCCA 2481
•26 September 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AJT16 v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 2481 |
| 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), s.36 |
| Cases cited: Attorney-General (NSW) v Quin (1990) 170 CLR 1 Minister for Immigration v SZQRB [2013] HCATrans 323; (2013) 210 FCR 505 Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 MZAAD v Minister for Immigration [2015] FCA 1031 |
| Applicant: | AJT16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 376 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 E Cheesman of Clayton Utz |
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 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 376 of 2016
| AJT16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Administrative Appeals Tribunal (Tribunal). The decision was made on 8 February 2016. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.
Background facts relating to the applicant’s claims for protection and the decision of the tribunal on them are set out in the Minister’s outline of submissions filed on 19 September 2016.
The applicant is a citizen of Bangladesh.[1]
[1] Court Book (CB) 142 [27].
On 20 June 2013, he applied for a protection visa.[2] On 27 August 2014, the Minister’s Delegate (Delegate) refused to grant the protection visa.[3] On 8 February 2016, the Tribunal affirmed the Delegate's decision.[4]
[2] CB 20 - 80.
[3] CB 94 - 113.
[4] CB 139 - 147.
On 22 February 2016, the applicant commenced the current proceedings.
The applicant's claims
The applicant claims to fear persecution at the hands of the Bangladesh Awami League (Awami League) due to his political opinion as a supporter of the Bangladesh Nationalist Party (BNP). The applicant claims that:
a)his family has always supported the BNP, which led to a “long history of enmity” with the Awami League;[5]
b)in 1999, an Awami League member defeated the applicant's older brother in local elections. The applicant's older brother was then targeted by the Awami League, leading to him being kidnapped and physically assaulted. In 2000, his older brother was convicted of false charges (laid by the local Chairman of the Awami League), but was released in 2001 with the help of the BNP. The applicant's older brother then went into hiding and disappeared;[6]
c)around January 2013, the applicant was attacked by Awami League supporters while reading a BNP- and Jamaat-e-Islami-sponsored newspaper. The Awami League threatened to harm him as they did his brother. The applicant ran away to his sister's house in the next village;[7]
d)Awami League supporters came to his family home and asked for his whereabouts. His father denied knowledge of his whereabouts. After two to three days of hiding at his sister's house, the applicant fled Bangladesh;[8]
e)since arriving in Australia, the applicant has contacted his family who have advised him that the Awami League supporters are still searching for him;[9] and
f)he fears being physically assaulted and/or killed by members and supporters of the Awami League if he returns to Bangladesh. Bangladesh authorities are “unable or unwilling” to protect him because the Awami League is the current ruling party.[10]
[5] CB 47 [3].
[6] CB 47 [4] - [7].
[7] CB 48 [10] - [11].
[8] CB 48 [12] - [13].
[9] CB 48 [14].
[10] CB 49 [16], [18].
Before the Tribunal, the applicant also claimed to have two brothers living in Malaysia, one of whom fled Bangladesh for political reasons.[11]
[11] CB 142 [29].
The Tribunal's findings
The Tribunal affirmed the Delegate's decision to refuse the applicant a protection visa, for the reasons set out below.
First, the Tribunal accepted the applicant's claims with respect to his missing older brother's political involvement, physical assault, time in jail and disappearance.[12] However, it was not satisfied that either of his brothers who lived in Malaysia left Bangladesh for political reasons, because the applicant had made “conflicting claims” by telling the Delegate that it was only him and his missing older brother that were involved in politics.[13]
[12] CB 143 [31].
[13] CB 142 [30].
Secondly, the Tribunal accepted that the applicant was a supporter of the BNP, albeit at a low level by occasionally attending meetings and processions. It accepted that he had previously encountered harm from Awami League supporters due to his opposing political affiliation and “possibly” due to his missing older brother's former role in politics. Given that he is from a small community and given the reportedly entrenched nature of oppositional politics in Bangladesh, the Tribunal considered that there was a “possibility” that the applicant “would continue to be of adverse interest” to the Awami League supporters involved in the 2013 attack should he return to his village in Bangladesh.[14] It accepted that he would not be able to access effective police protection in those circumstances.[15]
[14] CB 144 [39].
[15] CB 144 [40].
Thirdly, while the Tribunal accepted that it might be difficult for the applicant to remain unaffected by oppositional politics if he returned to his own village where he and his brother have a background of past harm, it considered that the applicant could return to live elsewhere in Bangladesh “in view of him stating he no longer wishes to be involved in politics”. It considered the possibility of the applicant being drawn into politics “against his will by others”, but found that this only related to “circumstances in his local area”.[16] Referring to independent country information, the Tribunal found that in the event the applicant did resume any low level support for the BNP on return to another location in Bangladesh, this would not cause him to be adversely treated by political opponents or the Bangladeshi authorities.[17] The Tribunal found that the applicant could reasonably relocate within Bangladesh, considering a number of factors including that the applicant is a young, single man with no dependents, has obtained work experience in a restaurant environment in Australia, and has managed to establish himself in Australia with no fluency in the local language or familial support.[18]
[16] CB 145 [46].
[17] CB 146 [49].
[18] CB 146 [50].
The Tribunal therefore found that the applicant could safety relocate to another area where there was “no appreciable risk of the feared persecution”, and that it would be reasonable to expect him to do so in the circumstances.[19] The Tribunal adopted the same reasons as set out above to find that there was no substantial ground for believing that the applicant faced a real risk of significant harm pursuant to the complementary protection criterion.[20] The Tribunal was therefore not satisfied that the applicant is a person to whom Australia owes protection obligations pursuant to s.36(2)(a) or (aa) of the Migration Act 1958 (Cth).
[19] CB 146 [52].
[20] CB 147 [54].
The present proceedings
These proceedings began with a show cause application filed on 22 February 2016. The grounds in it are expressed somewhat generally:
The applicant claims to fear serious harm in Bangladesh on the Conventional grounds of his actual or imputed political opinion in favour of the Bangladesh Nationalist Party.
Administrative Appeal Tribunal made a jurisdictional error when it failed to use real test of persecution and harm according to the Migration Act. In assessing the application ,the AAT failed to assess all aspects of real chance the applicant will suffer serious harm on return to Bangladesh for a convention reason.
Particulars:
The Tribunal raised several irrelevant issues to discredit the facts that the applicant's brother was kidnapped in 1999 due to be supporter of BNP party. He was released because of the … influence of BNP party after forming a caretaker government in 2001.
In 2013 he was attacked by Awami League Supporters while he was sitting in a public area reading news paper .The Awami League supporters continuously folioed and threatened him to kill .. The Tribunal totally ignored the oral and written evidence given by the applicant in support of his claims.
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 of persecution and harm.
Particulars:
The RRT ignored the relevant consideration related with complementary Protection set out ins 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 claims that his fear of harm or mistreatment is for the Convention reasons of political opinion and membership of the particular social group BNP.
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)
The application is supported by a short affidavit filed with it. I received that affidavit. I also have before me as evidence the court book filed on 21 April 2016.
Both the applicant and the Minister filed written submissions in accordance with procedural orders made by a registrar.
The applicant’s submissions traverse his personal history and his claims for protection. He deals with the decision made by the Minister’s delegate. That is beyond the scope of this proceeding. He also deals with his initial entry interview. The applicant’s submissions do discuss the Tribunal’s reasons, but, in my view, that discussion does not rise above a contest over the merits of the Tribunal decision.
In my view, the Tribunal’s decision is carefully reasoned and fair. The Tribunal took a more generous view than had the delegate about the applicant’s claims. The Tribunal’s decision turns on its relocation finding. I invited oral submissions from the applicant today about that finding. His submissions were, however, limited to the merits of that decision and his fear of returning to Bangladesh. I am unable to discern any arguable case of jurisdictional error by the Tribunal.
In that regard, I agree with the Minister’s submissions in relation to the applicant’s grounds of review.
First, it is clear from the Tribunal’s reasons[21] that the Tribunal had in mind the correct legal tests to be applied in assessing whether the applicant was owed protection obligations pursuant to either the Refugee Convention of complementary protection grounds.[22]
[21] CB 139 – 147.
[22] see its recitation of the law at [6], [7], [9], [49], [52]-[55] of the Tribunal’s reasons.
Secondly, the applicant has not particularised the “aspects of real chance” that he says the Tribunal failed to assess. However, a fair reading of the Tribunal’s reasons shows that the Tribunal properly applied the real chance test to the applicant's claims, in that it:
a)dealt with the applicant's substantial claims to fear harm if he were to return to Bangladesh (that is, his claim to fear harm at the hands of the Awami League due to his actual political opinion as a supporter of the BNP, and imputed political opinion given his family's involvement in the BNP);
b)made findings of fact based on an assessment of these claims and relevant country information. Indeed, the Tribunal accepted in large measure what the applicant put to it;[23]
c)conducted the real chance assessment based upon “looking into the future and making a prediction relevant to the context of the issue being posed”.[24] In this case, the Tribunal accepted the applicant's claims of past persecution and a volatile political environment in Bangladesh. However, the country information suggested to the Tribunal that “a person's political profile” was relevant to whether they faced a real chance of harm from political opponents.[25] The applicant's political profile was too low to satisfy the Tribunal of a real chance of harm if he relocated to another area in Bangladesh;[26] and
d)made a finding as to whether there is a real chance that persecution will occur.[27] At [49] of the Tribunal’s reasons, the Tribunal stated that it did “not accept the applicant has a profile such that there is a real chance he would be seriously harmed on return to a different location in Bangladesh…”.
[23] see in particular [31], [33]-[34], [36], [39], [46]-[47] of the Tribunal’s reasons.
[24] MZAAD v Minister for Immigration [2015] FCA 1031 at [48].
[25] [47] of the Tribunal’s reasons.
[26] [46]-[47], [49], [52] of the Tribunal’s reasons.
[27] Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 per Kirby J at 294.
The application also asserts that the Tribunal dealt with “irrelevant issues”.
The applicant has not particularised the “several irrelevant issues” that he says the Tribunal raised to discredit his evidence that his brother was kidnapped in 1999, nor are any apparent on the face of the Tribunal’s reasons. In any event, this allegation is arid if not misconceived, given that the Tribunal in fact accepted this applicant's evidence regarding his older brother's activities and circumstances in 1999 and 2001.[28]
[28] [31] of the Tribunal’s reasons.
The assertion that the Tribunal “totally ignored the oral and written evidence” provided by the applicant in support of his claims to have been attacked in 2013, followed and threatened by the Awami League supporters is similarly unparticularised, incorrect on the face of the Tribunal’s reasons,[29] and lacks merit given that the Tribunal accepted these claims.[30]
[29] see [18]-[19], [25]-[26], [33]-[34] of the Tribunal’s reasons.
[30] at [36], [39] of the Tribunal’s reasons.
In relation to the balance of the grounds advanced, it is clear on the face of the Tribunal’s reasons that the Tribunal did identify the correct test for complementary protection, namely whether there were “substantial grounds” for believing that there was a “real risk” that the applicant would suffer significant harm as a “necessary and foreseeable consequence” of being removed from Australia to Bangladesh.[31] It made findings in this regard at [54]. The applicant has not particularised what “related consideration” he says the Tribunal “ignored”.
[31] see [7], [9] of the Tribunal’s reasons.
Secondly, the applicant's assertion that the Tribunal “did not follow Rules of Real Risk Test” is misconceived. The threshold for the “real risk” element in the complementary protection criterion is the same as that for the “real chance” test in the Refugees Convention criterion.[32] The Tribunal correctly applied the “real chance” test to the applicant's claims. The Tribunal then considered at [54], with respect to the complementary protection criterion, that “[for] the same reasons already articulated”, it was reasonable for the applicant to relocate within Bangladesh to an area where he would not face a real risk of significant harm at the hands of the Awami League members or supporters. Accordingly, it made a finding that it was “not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Bangladesh there is a real risk he will be significantly harmed for the reasons claimed or any other reason”.
[32] Minister for Immigration v SZQRB (2013) 210 FCR 505 at [246] per Lander and Gordon JJ, [297] per Besanko and Jagot JJ, [342] per Flick J (special leave to appeal from this judgment was refused: Minister for Immigration v SZQRB [2013] HCATrans 323, 13 December 2013).
As to the other assertions in the particulars, they merely restate the applicant's claims pursuant to the refugee criterion, and are nothing more than an invitation to the Court to engage in impermissible merits review. [33]
[33] Attorney-General (NSW) v Quin (1990) 170 CLR 1, 35-36; Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259, 272.
I conclude that the applicant is unable to demonstrate an arguable case of jurisdictional error.
I will order that, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules), the application is dismissed.
In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the court scale. The applicant did not wish to be heard on costs.
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.
I certify that the preceding thiryt (30) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 27 September 2016
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