Ajw16 v Minister for Immigration
[2017] FCCA 978
•16 May 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AJW16 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 978 |
| Catchwords: MIGRATION – Application under rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) to dismiss an application for judicial review of a decision of the Refugee Review Tribunal – whether applicant has raised an arguable case for relief – no arguable case for relief raised – application dismissed. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), r.44.12(1)(a) |
| Cases cited: Doukmak v Minister for Immigration and Multicultural Affairs [2001] FCA 1821 |
| Applicant: | AJW16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 380 of 2016 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 27 April 2017 |
| Date of Last Submission: | 27 April 2017 |
| Delivered at: | Sydney |
| Delivered on: | 16 May 2017 |
REPRESENTATION
| Applicant in person |
| Solicitors for the Respondents: | Mills Oakley Lawyers |
ORDERS
Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) the application is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 380 of 2016
| AJW16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The first respondent (Minister) seeks an order under r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) that the application for judicial review be dismissed because the application does not raise an arguable case for the relief it seeks. By that application the applicant, a national of Bangladesh, seeks judicial review of a decision made by the second respondent (Tribunal) affirming the decision of a delegate of the Minister not to grant the applicant a Protection (class XA) visa (Protection visa).
Claims for Protection
In a statutory declaration that formed part of his application for a Protection visa,[1] the applicant claimed he left Bangladesh because his life was at risk. He claimed he had a small grocery shop. In 2012 members of the Awami League started coming to his shop asking for money. They also asked for cigarettes and groceries, but they refused to pay.
[1] CB65-66
The applicant refused to give money to the Awami League. He supports Jamaat-e-Islami (JI), and he did not want to give away cigarettes and groceries because he needed to make a living. The Awami League started to make threats. They said they were going to destroy the applicant’s shop and harm or kill him. The applicant continued to refuse to give money and, in February 2012, the Awami League destroyed the applicant’s shop. The applicant left his village because it was not safe for him to stay there.
The applicant claimed he cannot relocate or live safely in another part of Bangladesh “because I can have similar problems with members of the Awami League in another city of village”. The applicant also claimed that authorities in Bangladesh will not protect him because the Awami League is in power.
Before the delegate the applicant gave further details of his claims:
a)The applicant’s father supported the JI, as did the applicant. Although he had not been a member of JI, the applicant attended meetings and other programmes of the JI.[2] The meetings he attended could have been held at intervals of two or three or six months. When he supported the JI in his area, members of the Awami League treated supporters of the JI in a degrading manner by telling them to leave JI and support the Awami League.[3]
b)Supporters of the Bangladesh Nationalist Party and the Awami League attended the applicant’s shop to chat and they incorrectly thought the applicant had invited people to join JI.[4] Members of the Awami League began to target the applicant because they thought the applicant was inviting people to join JI.[5]
c)The applicant complained to the police about the Awami League demanding money. When members of the Awami League attacked him, the applicant had again gone to the police. Members of the Awami League had tortured him and beaten him. The police told the applicant there were reports against him and the police had threatened him. When his shop had been attacked, the applicant went to the police to complain, but he was accused of burning two cars. [6]
d)The owners of the two cars that had been burned appointed some people to catch the applicant. He received some information from home that the police had targeted him, that these people would target him, and that “these people would kill him”.[7] People started talking about the applicant, and he received advice from home to run away from the area, otherwise they would kill him.[8] The applicant moved to the house of someone whom the applicant knew, and he stayed there for two, or three, or four days. After a few days, the applicant boarded a trawler.[9]
e)If the applicant returned to Bangladesh he was sure he would be killed, either by the people from the Awami League or by the owners of the cars. The owners had asked the applicant’s father and brothers where the applicant was, and the applicant’s father and brothers advised the applicant not to return to Bangladesh otherwise he would be killed by these people.[10] The applicant feared he would be targeted because of his involvement with JI.
[2] CB168, [5]
[3] CB168, [5]
[4] CB168, [6]
[5] CB168, [6]
[6] CB168, [8]
[7] CB169, [11]
[8] CB169, [11]
[9] CB169, [12]
[10] CB169, [13]
The applicant provided further details of his claims in a statutory declaration that accompanied a letter dated 20 July 2015 the applicant’s lawyers provided to the Tribunal.[11] The statutory declaration responded to the delegate’s decision. The applicant said:
a)He incorrectly stated in his first statutory declaration that his shop was burnt in 2012. That occurred in February 2013.
b)In February 2013 six Awami League thugs came to his shop and refused to pay for cigarettes. They mocked the applicant, and they took out hockey sticks which they used to smash everything around them. They tried to hit the applicant, but the applicant moved his head. The applicant ran out of his shop and out of his village into another village. He there went to the house of a relative. The applicant heard that the Awami League thugs had been to his house asking where he was.
c)Since the applicant has been in Australia, the thugs had been to his father’s house many times asking for him, and they had threatened his father.[12]
d)The applicant had been falsely accused of being involved in the burning of two cars, but he has not been charged with any offence. The applicant believes the Awami League made these false accusations.[13]
[11] CB134
[12] CB170, [16]
[13] CB170, [17]
Before the Tribunal on 24 July 2015, the applicant produced a document for which the interpreter at the hearing provided a “sight translation”. The document purported to be a letter from the Secretary of a branch of JI. According to the translation, the letter confirmed the applicant was a worker with JI, that in 2009, when the Awami League was in power, there had been numerous tortures and injustices done to the workers of the JI, due to which they had to leave the country, that the applicant had undergone persecution, that he had been threatened with death or gaol, and that was the reason he left Bangladesh.[14]
[14] CB171, [20]
Also during the hearing before the Tribunal, the applicant made statements that included the following:
a)For two and half years before he left Bangladesh in February 2013 he had run his own shop.[15]
b)One member of his family supported JI, but this family member was missing, and the family did not know whether he was killed or locked up.[16]
c)The applicant attended meetings and marches just as a member, and he had also worked side by side with many of the big, high profile members, even on the central level, if they had come to visit his local area.[17]
d)The applicant was beaten with hockey sticks on the day the six thugs had come to his shop in February 2013.[18] He ran away, and did not return to the shop.[19] He reported to the police what had occurred, but the police threatened him, saying that a complaint had been made against him that he had been involved in burning or damaging a bus.[20]
[15] CB167, [3]
[16] CB171, [21]
[17] CB171, [22]
[18] CB173, [26]
[19] CB173, [28], [29]
[20] CB173, [29]
The Tribunal’s decision
The Tribunal accepted there “is a lot of political violence in Bangladesh”; but that this violence occurs in the context of political protests, including nation-wide strikes, demonstrations, sit-ins, and transport blockages. Although the applicant claimed he attended meetings and any sort of march which had been organised, just as a member, he did not claim to have experienced problems with having taken part in these meetings or marches.[21]
[21] CB175, [37]
The Tribunal appears to have accepted the applicant’s claims that when he visited his village to meet JI people, the members of the Awami League sniggered at them, saying that they came from a small party, and that they should join the Awami League. The Tribunal, however, did not accept this constituted serious harm.[22]
[22] CB175, [38]
The Tribunal did not accept the applicant’s claim that his shop had been ransacked by Awami League thugs. On the applicant’s evidence, six people armed with hockey sticks came to the applicant’s shop on three Honda motorbikes, yet, after a fight began, the applicant was able to flee from these six persons. The Tribunal, therefore, did not accept the applicant’s claim that after this alleged incident, people went to the applicant’s village and threatened his father. The Tribunal also noted that the Awami League had two and half years to take action against the applicant, had they wished to do so, but, by the applicant’s own account, he was not attacked during that time.[23] Further, the Tribunal considered the applicant was only ever a supporter of or worker for JI.[24]
[23] CB176, [39]
[24] CB176, [39]
The Tribunal was unable to conclude on the evidence before it that the brother whom the applicant claimed is missing disappeared for reasons of his real or imputed political opinions, or that there is a real chance the applicant would suffer a similar fate.[25] The Tribunal also did not accept the applicant was facing politically-motivated false criminal charges if he returns to Bangladesh; nor that the owner of the bus is looking for, and wants to kill, the applicant.[26]
[25] CB176, [40]
[26] CB176, [41]
Grounds on which applicant relies
The applicant, who is not legally represented, stated the grounds on which he relies in two documents he filed, and in oral submissions he made at the hearing before me. The first document is the application which contains two grounds, each of which is supported by particulars. The second document is titled “Applicant Outline Submission”. I propose to deal separately with the submissions contained in the two documents, and those which the applicant made to me at the hearing.
Grounds of application
The first ground stated in the application is as follows (errors in original):
The Refugee Review Tribunal made a jurisdictional error when it failed to consider each integer of his claim and or failed to take into account the whole of the oral and written evidence in determining whether he feared persecution claimed amounted to persecution and serious harm within the meaning ofs 91R of the Migration Act.
In the particulars, the applicant makes three claims. The first is the Tribunal failed to take account of the evidence the applicant gave of why he was being targeted by members of the Awami League, that such members destroyed the applicant’s shops and threatened to kill him, and of his being unable to obtain protection from local authorities. That is not arguable. As my summary of the Tribunal’s reasons shows, the Tribunal considered the applicant’s evidence, but it did not accept it.
Second, the applicant claimed the Tribunal failed to consider “more recent information with regards to the attacks” of JI. The particulars do not identify the information the applicant claims the Tribunal did not consider. At the hearing before me, the applicant sought to show me a video. After the applicant confirmed to me that the video was not something that he submitted to the Tribunal, I informed the applicant I would not watch the video because it could not be said the Tribunal made any error by not relying on material that was not put before it. This part of the application, therefore, is not arguable.
Third, the applicant claims the Tribunal failed to consider “the recent information about the atrocities committed by the Awami League”. The application does not identify the “recent information”. As I have already noted, the applicant wanted me to watch a video that was not before the Tribunal. It is not arguable the Tribunal made a jurisdictional error by not considering material that was not put before it.
As for the ground itself, it is not arguable the Tribunal did not consider all the integers of the claims the applicant made, or that the applicant did not consider the whole of the written and oral evidence that was before it.
The second ground stated in the application is as follows:
The Tribunal made a jurisdictional error when it discared [sic] all the oral and written submission without giving any solid evidence of cumulative credibility concern in the finding of reasons. . . .
The ground may fairly be read as claiming it was not reasonably open to the Tribunal to discard the applicant’s claims. So read, ground 2 is not arguable. The Tribunal rejected the applicant’s claims largely because it rejected his claim that Awami League thugs had destroyed his shop; and, on a fair reading of its reasons for decision, the Tribunal did so largely because it considered it inherently improbable that the applicant would have been able to escape from six thugs who were armed with hockey sticks and who had access to three motorcycles.[27] The Tribunal also relied on its being satisfied the applicant was no more than a supporter of and worker for JI, and that the applicant ran his shop without incident for two and half years before the applicant’s shop was destroyed. It is beyond doubt it was reasonably open to the Tribunal not to accept the applicant’s claims.
[27] See at CB173, [28]: “I put to him that I had a little difficulty accepting his account of his escape: he said that he had been attacked by six people who had hockey sticks but he had somehow escaped without a scratch on him and then he had been able to run away from them on foot even though they had had Honda motorbikes.”
The particulars to the second ground contain a number of claims. First, it is said that in relation to inconsistencies the Tribunal identified between the evidence the applicant gave to the Tribunal and his written claims, the applicant misunderstood and responded to the questions posed by the Tribunal in a situation of nervousness and distress. This claim does not identify the questions the applicant says he misunderstood, or the answers he gave to the questions he misunderstood, or how he understood the questions, or why he says his understanding of the question constituted a misunderstanding. In the absence of such details, it is not arguable that any inconsistencies the Tribunal found were the product of the applicant’s misunderstanding of any question the Tribunal asked the applicant.
The second claim made in the particulars to the second ground is that it is natural when an applicant is called to expand his ground in a hearing that the applicant “gives more evidence to justify his/her claim and during that time it is natural that being a non-legal person speaks whatever comes in mind”. There are two difficulties with this claim. First, it assumes the Tribunal was in some way bound to assess the applicant’s evidence by reference to what is said to be the natural way in which a “non-legal person” is asked to expand on his or her claims. That is not arguable. Secondly, even if the Tribunal was required to so assess the applicant’s evidence, it is not arguable the Tribunal failed to do so, because the applicant does not identify the answers the applicant claims he answered the “natural” way and on which the Tribunal relied as evidence of an inconsistency.
Third, it is claimed the Tribunal “totally misconstrued the facts”. The applicant does not identify any of the facts it is claimed the Tribunal misconstrued. For that reason, the claim is not arguable.
Fourth, it is claimed that “[w]hatever the applicant said in support of his claim was true”. That raises no arguable claim of jurisdictional error because it undoubtedly seeks merits review.
Finally, the applicant claims the Tribunal did not “assess the applicant’s evidence according to section 424 of the Migration Act”. That raises no arguable case of jurisdictional error. Section 424 of the Migration Act 1958 (Cth) (Act) confers power on the Tribunal to obtain information, and imposes an obligation on the Tribunal to have regard to any information it obtains. The applicant does not identify information the Tribunal obtained which it failed to have regard to.
The second ground contained in the application, therefore, raises no arguable case of jurisdictional error.
The application contains a separate paragraph that claims the Tribunal raised several irrelevant issues to discredit the oral and written evidence. This paragraph, however, does not identify the irrelevant issues. To that extent, the paragraph discloses no arguable case of jurisdictional error.
The separate paragraph also claims the Tribunal failed to take into account the applicant’s claim there is no reasonable protection from the Bangladesh government. It is true the Tribunal did not in terms consider that claim. The Tribunal, however, was not required to do so because the Tribunal did not accept the claims on the basis of which the applicant claimed he had sought but had not been afforded protection by the government of Bangladesh. This part of the paragraph, therefore, also discloses no arguable case of jurisdictional error.
Applicant’s Outlines of Submission
The applicant makes a number of claims in this document (Submissions).
First, in the section headed “Background”, the applicant claims the Tribunal acted unreasonably and in a manner that was not fair or just or in accordance with substantial justice and the merits of the applicant’s claims for refugee status. Being unparticularised, the claim raises no arguable case of jurisdictional error.
Second, also in the section headed “Background”, the applicant claims the Tribunal acted unreasonably in not adjourning the hearing before it to await the outcome of the application for judicial review. That is not arguable. An application for judicial review could have been made only after the Tribunal decided the applicant’s case.
Third, although not entirely clear, in numbered paragraphs 1 and 2 of the Submissions, the applicant claims the Tribunal did not properly consider the applicant’s evidence and arguments. This part of the Submissions does not identify the evidence and arguments it is claimed the Tribunal did not consider. It is beyond argument the Tribunal did considered the applicant’s evidence and arguments. This part of the Submissions, therefore, is not arguable.
Fourth, in paragraphs 3 and 4 of the Submissions, the applicant relies on s.140 of the Migration Act 1958 (Cth) (Act). It is not arguable that s.140 applies to the circumstances of this case, because s.140 applies to cancellations of visas.
Fifth, in numbered paragraph 5 of the Submissions, the applicant submits the question the Tribunal ought to have asked itself when conducting the review was whether it should not affirm the delegate’s decision. The applicant refers to Ross v Minister for Immigration and Multicultural Affairs[28] and Doukmak v Minister for Immigration and Multicultural Affairs.[29] These decisions concerned the nature of the Minister’s powers to cancel visas under s.501(2) and s.128 of the Act respectively. They have no arguable application to the exercise by the Tribunal of its jurisdiction to consider applications for review and, therefore, have no arguable relevance to the case before me.
[28] [2000] FCA 1716 at [29]
[29] [2001] FCA 1821 at [51]
Sixth, in numbered paragraph 6 of the Submissions, the applicant submits that the questions paragraphs 5-18 of the Tribunal’s reasons record were asked of the applicant show the Tribunal asked irrelevant questions that confused the applicant. This raises no arguable case of relief because this submission does not identify the questions the applicant claims are irrelevant, or how such questions confused the applicant.
Seventh, in numbered paragraphs 7 and 8 of the Submissions, the applicant submits the Tribunal needed, but failed, “to consider whether [it] affirms the decision not to grant the protection visa”. It is true the Tribunal was required to consider the applicant’ claims for the purpose of determining whether it should affirm or set aside the delegate’s decision not to grant the applicant a Protection visa. It is beyond argument, however, that the Tribunal did consider the applicant’s claims. In paragraph 8 the applicant also appears to submit the Tribunal did not consider the applicant’s claims he was involved in politics and that he was persecuted because of his political opinion. It is not arguable, however, the Tribunal did not consider these matters.
Eighth, under the heading “The Nature of the Claim”, the applicant repeats the substance of his claims for protection. That does not disclose any arguable case of jurisdictional error. Further, the applicant included in this part of the Submission a claim that he had organised and attended a number of meetings before the election of 2008. That is not a claim the applicant advanced before the delegate or the Tribunal.
Ninth, the applicant submitted the Tribunal failed to apply the correct test in relation to his claim based on s.36(2)(aa) of the Act. This part of the Submissions relies on two matters:
a)The applicant submits the Tribunal unreasonably raised doubts about the applicant’s political activities. That is not arguable. The Tribunal did not raise any doubts about the applicant’s political activities. It accepted what the applicant said about those activities, but found the applicant was no more than a supporter of worker for JI.
b)The applicant submits the Tribunal’s doubts about the applicant’s membership of JI were based on unreasonable assumptions. Those unreasonable assumptions are said to consist of the applicant’s evidence and of the Tribunal’s not accepting the applicant was a truthful witness. That is not arguable. The Tribunal did not accept the applicant was a member of JI. The Tribunal relied on the letter purportedly from JI the applicant produced at the hearing, which described the applicant as a worker.[30] It is beyond argument it was reasonably open to the Tribunal to rely on that letter to conclude the applicant was not a member, but a supporter of or worker for JI.
[30] CB176, [39]
Tenth, the applicant submits the Tribunal discarded all oral and written evidence in relation to the applicant’s claim that he was tortured and beaten by Awami League supporters without giving any reasons. The applicant refers to paragraph 8 of the Tribunal’s reasons. This forms part of the Tribunal’s summary of the claims the applicant made before the delegate. That paragraph includes the following:[31]
He said that when they had attacked him he had again gone to the police station and had complained that the Awami League people were threatening him. Asked how the Awami League people had threatened him he said that they had tortured him and they had beaten him up.
[31] CB168, [8]
This part of the Submissions assumes the Tribunal was required to determine whether it should accept what the applicant had said to the delegate. It is not arguable the Tribunal was required to do that. The Tribunal’s reasons indicate that during the hearing before the Tribunal the applicant did not make any claim that he had been tortured and beaten up by members of Awami except when the six thugs had attended the applicant’s shop and destroyed it. In those circumstances, it is beyond argument that the claim the Tribunal was required to address was the claim the applicant presented to the Tribunal; and it is beyond argument the Tribunal did address that claim.
Eleventh, the applicant submits the Tribunal intentionally asked the applicant irrelevant questions to undermine the applicant’s political activities and his role in JI. That is not arguable. The Submissions do not identify the questions it is said were irrelevant, or the grounds on which it is alleged the Tribunal intentionally asked irrelevant questions.
Twelfth, the applicant submits he was denied procedural fairness because his submissions were rejected or discarded. The Submissions do not identify the submissions the applicant submits the Tribunal discarded or rejected. In any event, it is beyond argument that the Tribunal considered the applicant’s submissions and of the submissions the Tribunal did not accept it rejected them for reason that were reasonably open to it.
Thirteenth, the applicant submits he did not claim he was a very big leader of JI, and there is nothing in the refugee policy which says persecution of a low profile politician cannot amount to persecution for the purposes of the Refugees Convention. This submission assumes the Tribunal was of the view that persecution of a low profile political activist does not amount to persecution for the purposes of the Refugees Convention. It is not arguable the Tribunal proceeded on any such view. The Tribunal relied on the applicant’s only being a worker or supporter as a basis for not accepting that the Awami League could have regarded the applicant as a leader. That, in turn, on a fair reading of the Tribunal’s decision, was one of the grounds on which the Tribunal did not accept the applicant’s claim that he had been attacked at his shop, and his shop destroyed.[32] It is beyond argument it was reasonably open to the Tribunal to so conclude.
[32] CB176, [39]
Fourteenth, the applicant submits the Tribunal made its decision based on limited material, “not the whole information’s available on the media”, and the Tribunal “ignored all other independent information”. These submissions are not arguable. They do not identify the information the applicant submits the Tribunal did not consider. Further, the submission is not arguable to the extent it implies the Tribunal was obliged to seek out and consider all information that may have been relevant to the political conditions in Bangladesh.
Submissions made at hearing
At the hearing, the applicant said he could not afford a lawyer, and, therefore, he does not know the laws and regulations. He said he came to Australia for his own safety. The applicant referred to his having informed the delegate that his older brother had disappeared. He referred to his facing economic hardship. The applicant also submitted that many of “our leaders” have been hung and punished, and many activists are being persecuted. The applicant said his life would be at risk if he were to return to Bangladesh.
None of these matters raise any arguable case for relief. They are an appeal to the merits of the claims the applicant made for protection which were not accepted by the Tribunal.
Conclusion and disposition
The applicant has not disclosed any arguable case for the relief he seeks. I propose, therefore, to order that the application be dismissed.
I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Date: 16 May 2017
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