ALE16 v Minister for Immigration - [2016] FCCA 2103

FEDERAL CIRCUIT COURT OF AUSTRALIA

ALE16 v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 2103

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Protection (Class XA) visa – real chance test – whether the Tribunal erred in making adverse credibility findings – whether the Tribunal denied the applicant procedural fairness – whether the Tribunal failed to put the applicant on notice – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2), 422B; 424A, 424AA, 476.

Federal Circuit Court Rules 2001, r.44.12

Cases cited:

Spencer v Commonwealth of Australia (2010) 241 CLR 118

Applicant:

ALE16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 434 of 2016

Judgment of:

Judge Street

Hearing date:

15 August 2016

Date of Last Submission:

15 August 2016

Delivered at:

Sydney

Delivered on:

15 August 2016

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents:

Ms L Buchanan
Australian Government Solicitor

ORDERS

The application is dismissed under r.44.12 of the Federal Circuit Court Rules 2001.
The Applicant pay the costs of the First Respondent fixed in the amount of $3,606.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 434 of 2016

ALE16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Tribunal made on 8 February 2016, affirming a decision of the delegate not to grant the applicant a Protection (Class XA) visa. The applicant was found to be a citizen of Bangladesh. The applicant feared being forced by his father to take part in political conflicts and in doing so, that there would be a real chance that he would be subject of significant harm because of his imputed political opinion and religious objectives.
The applicant’s father was a faithful Muslim and supporter of the BNP, who constantly faced issues with local law enforcement authorities as well as the local Awami League supporters. The applicant feared returning to Bangladesh because his father is an extremist and has been pressuring the applicant to return to Bangladesh and join him in support for Hifazat-e-Islam and his fight against local boys who have beaten and threatened his father on a number of times, and who have threatened to kidnap and kill the applicant if he returns to Bangladesh.
The applicant told the Tribunal he fears that if he returns to Bangladesh, the local boys will kill him because they are angry with his father due to his father’s support for the BNP, the Jamaat-e-Islami and the opposition leaders convicted by the International Crimes Tribunal. The applicant also fears harm in Bangladesh because of his father’s current support for Hifazet-e-Islam and his father’s political activities against the Awami League.
On 7 May 2009, the applicant was granted a subclass TU573 student visa and the applicant arrived in Australia on 17 May 2009 on that visa. It was not until 20 January 2014, that the applicant lodged an application for protection. On 12 August 2014, the delegate found that the applicant did not have a well-founded fear of persecution as defined under the Refugees Convention and was not satisfied the applicant had a real chance of being persecuted for a Refugee Convention reason.
The delegate was not satisfied that Australia owed protection obligations to the applicant because there were no 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 that the applicant will suffer significant harm.
On 8 September 2014, the applicant applied for review by the Tribunal. By letter dated 9 October 2015, the applicant was invited to attend a Tribunal hearing on 16 October 2015. The applicant appeared before the Tribunal on that date to give evidence and present arguments and was assisted by his migration representative.
The Tribunal identified the relevant law in the attachment to its reasons and identified the applicant’s claims and evidence. The Tribunal raised its concerns with the applicant in relation to the credibility of the applicant’s claims and his delay in making his application for protection. The Tribunal found that the applicant was not a witness of truth and was not satisfied the applicant had told the truth in relation to critical aspects of his claims.
The Tribunal was also not satisfied the contents of documents which the applicant had provided in support of his application were true and reliable and the Tribunal gave them little weight.
The Tribunal found that the applicant was not a witness of truth and was not satisfied that there is a real chance the applicant will suffer serious harm or harm of any kind for the reasons he has claimed if he returns to Bangladesh. The Tribunal found that the applicant did not have a well-founded fear of persecution. The Tribunal found that the applicant did not satisfy the criterion under s.36(2)(a) of the Migration Act 1958 (Cth) (“the Act”). The Tribunal was not satisfied that there were 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 the applicant will suffer significant harm. The Tribunal found that the applicant did not meet the criteria under s.36(2) of the Act and affirmed the decision of the delegate.
On 14 April 2016, a Registrar of the Court made orders for the filing of an amended application, affidavit and submissions. No such documents were filed by the applicant. At the commencement of the hearing, the Court explained to the applicant that this was a show cause hearing to determine whether the applicant had an arguable case. The Court explained to the applicant that it was considering whether the applicant had an arguable case that the Tribunal’s decision was affected by relevant legal error.
The Court explained that the relevant legal error had to be either an excess of statutory power or a denial of procedural fairness to the applicant. The Court explained that in summary, the Court was to determine whether the Tribunal’s decision was lawful and whether the Tribunal’s decision was fair. The Court explained to the applicant that if satisfied that there was a reasonable argument that the Tribunal’s decision was affected by relevant legal error, it would fix the matter for hearing on another occasion. The Court explained to the applicant that if it was not satisfied that there was a reasonable argument the Tribunal’s decision was affected by relevant legal error, it would dismiss the applicant’s application. The applicant confirmed that he understood the nature of the explanation.
The Court explained that the Court would have identified the evidence and then hear submissions from the applicant and then hear submissions from the first respondent and then hear submissions from the applicant in reply. The applicant confirmed that he understood what had been said by the Court.
The ground of the application is as follows:
From Paragraph 27 to Paragraph 42 of the Tribunal's decision record, the Presiding Member; Mr. Chris Thwaites, listed a number of concerns raised during the Tribunal hearing. These concerns are in relation to the differences between my oral evidence, and my written statement of claims, and documents I had submitted to the Tribunal. The Tribunal gave detailed elaboration as to why these discrepancies are the reasons that the tribunal affirmed the decision made by the delegate of the Minister.
The summary of these concerns is as follows:
a. I failed to mention that my father was always pushing me to get involved and come and pray with him and other people involved in his political part, and attend party meetings and lectures in my written claim. (Paragraph 27-29)
b. Difference between my oral evidence and written statement, in relation to who made the threats to my father and threats made to who (A salesperson or my father). (Paragraph 30 to 33)
c. Concerns about when my father attended public rally and was injured and failed to mention any incident in May, 2013, which is not consistent with the Police Report submitted to the Tribunal. ( Paragraph 34 to37)
d. Concerns regarding why the threats with harm were not made to more obvious assets of my father or accessible family members ( Paragraph 38-39)
e. Concerns why my father did not relocate the family in the wake of having received a number of threats and been physically assaulted (Paragraph 40)
f. Delay in applying for a protection visa after arriving in Australia in May, 2009. (Paragraph 41and42)
The foregoing adverse findings led the Tribunal to have affirmed the decision made by delegate of the Minister, however, in accordance with the s424AA of the Migration Act 1958, the Tribunal was supposed to offer me an opportunity to address these concerns in writing during the course of the hearing or before the conclusion of the hearing, but did not happen.
Other than that, the conclusion of the Tribunal hearing was on 16-10-2015 and the Tribunal made its decision on 08-Feb--2016; it'd been approximately 4 months before the Tribunal handed down its decision, but during the space of these four months, I did not receive any letter from the tribunal, outlining its concerns and inviting me to respond under s424AA of the Act, prior to making its final decision on 08-02-2016. As such, I believed the Tribunal failed to act in compliance with s424AA of the Act, which constituted a jurisdictional error.
Had the Tribunal had the above-mentioned concerns about my credibility, which the Tribunal relied on in making its findings; it should seek further clarification from me and invite me to address these concerns or inconsistencies in my evidence in writing, the Tribunal, therefore, breached section 422B of the act, which unequivocally stipulates that the Tribunal should conduct the hearing in a fair and just manner.
(Errors in original)
From the bar table, the applicant identified that he wanted to try and contact Legal Aid and obtain a lawyer to represent him as he did not have the funds to pay for one. The applicant confirmed that he could not afford legal representation. The applicant said that he did not understand the law and wanted to obtain legal representation. The applicant confirmed that he had given no earlier notice of any request for adjournment to the first respondent. The first respondent opposed the adjournment.
Nothing said by the applicant identified any basis upon which the Court could be satisfied that an adjournment would be of any utility. The applicant has had since the filing of his application on 29 February 2016, to obtain representation if he was able. The applicant’s own statement from the bar table was that he could not afford the legal representation. In these circumstances, the Court is not satisfied that the grant of an adjournment would be of any utility and is of the view that an adjournment would only unnecessarily increase the costs for the parties and utilise limited court time.
The Court is not satisfied that an adjournment is warranted in the interests of the administration of justice. It is for these reasons that the adjournment application is refused.
From the bar table, the applicant maintained that his father would force him to pursue political activity that he would not want to pursue and that was why he did not wish to return to Bangladesh.
The Tribunal provided reasons in relation to the applicant’s credibility. Those adverse findings in relation to the applicant’s credibility were open on the material before the Tribunal and cannot be said to lack an evident and intelligible justification.
To the extent that the applicant makes reference to s.424AA of the Act, no information is identified by the applicant enlivening any obligation under s.424A. In relation to reference to s.422B, it is apparent that the applicant was invited to attend a hearing. On the material before the Court, the applicant had a genuine and meaningful hearing, and the Tribunal complied with its statutory obligations in the conduct of the review. There was no breach of s.422B or s.424AA of the Act.
The application fails to identify any arguable case of jurisdictional error. On the material before the Court, the Tribunal complied with its obligation to afford procedural fairness to the applicant in the conduct of the review. Nothing said by the applicant from the bar table identified any arguable jurisdictional error. I take into account the principles and caution in Spencer v Commonwealth of Australia (2010) 241 CLR 118 at [24]-[25] and [59]-[60]. The application fails to identify any arguable jurisdictional error. I am satisfied that this is an appropriate matter in which to exercise the Court’s power under r.44.12 of the Federal Circuit Court Rules 2001.
The application is dismissed under r.44.12 of the Federal Circuit Court Rules 2001.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 1 September 2016