AMD16 v Minister for Immigration
[2017] FCCA 2321
•22 September 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AMD16 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 2321 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – applicant claiming political persecution in Bangladesh – applicant disbelieved in part and other fears found not to be well founded – whether the Tribunal overlooked relevant material, asked irrelevant questions or failed to apply the correct test considered – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.36, 91R, 425 |
| Cases cited: Applicant WAEE v Minister for Immigration (2003) 75 ALD 630 Minister for Immigration v Jia Legeng (2001) 205 CLR 507 Tran v Minister for Immigration [2004] FCAFC 297 |
| Applicant: | AMD16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 487 of 2016 |
| Judgment of: | Judge Driver |
| Hearing date: | 22 September 2017 |
| Delivered at: | Sydney |
| Delivered on: | 22 September 2017 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Ms G Doyle of Sparke Helmore |
ORDERS
The amended application filed on 9 June 2016 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,800.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 487 of 2016
| AMD16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
Introduction and background
The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 19 February 2016. The Tribunal affirmed a decision of the delegate of the Minister (delegate) not to grant the applicant a protection visa. Background facts relating to the applicant’s claim for protection and the decision of the Tribunal on them are set out in the Minister’s legal submissions filed on 15 September 2017.
The applicant, a citizen of Bangladesh, first arrived in Australia on 24 April 2013 as an irregular maritime arrival[1]. On 8 July 2013, the applicant lodged an application for a protection visa[2]. On 30 September 2014, the delegate refused to grant the applicant the visa[3].
[1] Court Book (CB) 1-2
[2] CB 18-76
[3] CB 87-104
On 2 October 2014, the applicant applied to the (then) Refugee Review Tribunal for review of the delegate’s decision[4]. On 27 January 2016, the applicant appeared before the Tribunal with the assistance of his representative and a Bengali interpreter to give evidence and present arguments[5]. On 19 February 2016, the Tribunal affirmed the decision to refuse the grant of the protection visa[6].
[4] CB 105-106
[5] CB 157-158
[6] CB 171-184
Applicant’s claims for protection
The applicant’s claims for protection were advanced in his entry interview dated 10 May 2013[7], a statement accompanying his protection visa application[8], written submissions dated 21 January 2016[9] and 2 February 2016[10] and in oral evidence at hearings before both the delegate and the Tribunal. The applicant also submitted country information and medical evidence in support of his claims[11]. In brief, the applicant made the following claims:
a)he supported the Bangladesh National Party (BNP) and attended protest marches and meetings on a fortnightly or monthly basis, where he would occasionally make speeches against the Awami League Party (Awami League). Sometimes, he spoke to crowds of between 10-20 thousand people. He was an “active supporter” of the BNP for “nearly 15 years”;
b)in June 2011, he was attacked by “other villagers and supports (sic) for the BNP,” following a fishing dispute with a neighbour (fishing dispute attack). Two weeks after that attack, he was involved in a land dispute and was hit with a shovel by one of his neighbours, who was an Awami League supporter (land dispute attack);
c)four to five days later, he attended a BNP meeting. The next evening, he was attacked by 10 to 12 Awami League supporters, suffering severe injuries to his back, leg and “male organ” (Awami League attack). The Awami League supporters released him after he begged them to spare him and promised never to return to his area. He then relocated to Dhaka, where he lived until travelling to Australia;
d)after arriving in Australia, he had ongoing medical problems, described as “significant urethral strictures” by an urological surgeon, Dr David Ende. Dr Ende further stated that the applicant might need to learn self-catheterisation, a treatment that he was unsure was available in Bangladesh; and
e)his mother and brother had been harassed for money and physically abused by Awami League supporters. His mother had informed him that Awami League supporters were looking for him in Dhaka.
[7] CB 11 & 15
[8] CB 64-66
[9] CB 143-156
[10] CB 160-163
[11] CB 141, 146-155 & 170
Tribunal proceedings
On 27 January 2016, the applicant appeared before the Tribunal with the assistance of his representative and a Bengali interpreter to give evidence and present arguments[12]. On 19 February 2016, the Tribunal affirmed the decision to refuse to grant the protection visa[13].
[12] CB 176
[13] CB 171-184
In its decision record, the Tribunal set out the relevant law[14] and the applicant’s claims and evidence[15]. The Tribunal found that the applicant did not have a well-founded fear of persecution for a Convention reason arising from the fishing dispute attack, noting the applicant’s evidence that this attack was not politically motivated, or repeated[16]. The Tribunal noted that the applicant’s evidence with respect to the perpetrator of the land dispute attack changed before the delegate and the Tribunal, and on this basis, did not accept that the land dispute attack occurred as claimed[17].
[14] CB 176-177 at [5]-[10]
[15] CB 177-179 at [11]-[30]
[16] CB 179 at [32]
[17] CB 179 at [33]
The Tribunal considered the applicant’s evidence about his involvement in the BNP, including his claims to have given speeches in front of large audiences at political gatherings[18]. However, the Tribunal considered that the applicant would have demonstrated a greater knowledge of the BNP party and policies, and would have been able to explain the contents of his speeches in greater detail, if his involvement in the party was as claimed[19]. The Tribunal accepted that the applicant followed the BNP “in keeping with family tradition,” but was not otherwise a politically active person[20].
[18] CB 179-180 at [35]-[36]
[19] CB 180 at [36]
[20] CB 180 at [36]
Having found that the applicant was not a publicly identifiable person in the BNP, the Tribunal did not accept that he was beaten by Awami League supporters as claimed[21]. The Tribunal accepted that the applicant had a medical condition, but on the information before it, was unable to verify the cause of the condition[22]. Based on the applicant’s level of political involvement with the BNP, its credibility concerns regarding the applicant’s evidence and the timing of the applicant’s claims in relation to his mother, brother and the Awami League, the Tribunal did not accept that these incidents had occurred[23]. Further, the Tribunal was satisfied that the applicant would not be politically active should he return to Bangladesh[24]. On the basis of independent country information, the Tribunal found that even if the applicant resumed his low level support of the BNP following return to Bangladesh, this would not cause him to be adversely treated by political opponents or the Bangladeshi authorities[25].
[21] CB 180 at [37]
[22] CB 180 at [38]
[23] CB 180 at [39]
[24] CB 180-181 at [40]
[25] CB 182 at [48]
The Tribunal considered the applicant’s claim that he would be beaten in Bangladesh if he did not support a political party. However, on the basis of the applicant’s apparent ability to live in Dhaka for approximately 18 months without incident prior to coming to Australia and having concluded that the applicant was not politically involved during this period, the Tribunal found that the applicant would not suffer harm on this basis[26].
[26] CB 181 at [41]-[43]
The Tribunal accepted that the applicant was suffering from a medical condition. However, the Tribunal found that there was no country information before it to indicate that someone suffering from the applicant’s condition would be suspected of being a homosexual, or that the applicant would be harmed or discriminated against on that basis[27].
[27] CB 182 at [49]-[56]
The Tribunal noted that it had “some reservations” about the applicant’s claim to fear harm for refusing to affiliate with a political party on return to his village[28]. However, the Tribunal noted that the applicant had been able to live in Dhaka for more than one year, while working and renting accommodation[29]. The Tribunal further noted that, since arriving in Australia, the applicant had obtained work experience. Accordingly, the Tribunal found that it would be reasonable for the applicant to return to Dhaka, were he to return to Bangladesh[30].
[28] CB 184 at [58]
[29] CB 184 at [59]
[30] CB 184 at [59]
The Tribunal was not satisfied that the applicant met the criterion in s.36(2)(a) of the Migration Act 1958 (Cth) (Migration Act)[31]. In considering the complementary protection criterion, the Tribunal referred to its anterior findings in finding that the applicant did not meet the criterion in s.36(2)(aa) of the Migration Act[32]. Accordingly, the Tribunal affirmed the decision under review[33].
[31] CB 184 at [60]
[32] CB 184 at [61]
[33] CB 184 at [63]
The present proceedings
These proceedings began with a show cause application filed on 4 March 2016. The applicant now relies upon an amended application filed on 9 June 2016. There are four particularised grounds in the application:
1.The AAT made a jurisdictional error when it failed to take into account the whole of the oral and written evidence in determining whether be feared persecution claimed amounted to persecution and serious harm within the meaning of 91 R of the Migration Act.
Particulars:
The applicant claims that the AAT misconstrued or misttok the fact. The Tribunal ignored the applicant’s visible involvement in the incident which took place around June 2011 (Cout Book page 145) when he was attacked and beaten by a large group of Awami League worker. In the incident applicant suffered serious injuries to his back, leg and penis. He was hit by what felt like a hammer and bamboo sticks.
Soon after the attack he had catheterisation procedure at the medical centre in his village. After arriving he has ongoing medical problems described as “significant urethel strictures requiring dilation and overnight saty in ospital “in aletterdated 7 January from Dr. David Ende, a urological surgeon. Dr. further states that Mr. Mirdha will have to learn intermittent self catheterisation and (Dr Ende) does not know if this treatment is available in Bangladesh.
2.The Tribunal totally ignored all of the relevant matters related to the applicant’s fear and foreseeable harm. In making decision, the Refugee Review Tribunal acted without jurisdiction or in excess of jurisdiction when it failed to take into account relevant considerations.
Particulars:
The AAT unreasonably raised doubt over the applicant’s political activities and the membership of BNP.
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 and against the Awami League.
In the statement which was attached with the form 866 C, the applicant stated very systematically how he was associated with the BNP and built his image among the BNP top leaders by organising a political movement against Begum Zia. The applicant was able to provide the name of his local opposition leader and the BP party leader· Khalid Zia. He helped the BNP party during Parliamentary election. Applicant claims that the Tribunal and the Delegate both misunderstood the case and made biased opinion yjat the applicant has fabricated evidence.
The Tribunal’s doubts over the applicant’s and association with the BNP was based on unreasonable assumption..
In the interview with the Department of Immigration and the Tribunal, the applicant was asked several questions over the his affiliation and motivation of joining of the BNP party and association with the BNP party at different stages ..
The applicant categorically claimed and presented several documents in support of his claim of association and active participation. The Tribunal asked many unreasonable and irrelevant questions with regards to affiliation with the BNP party. The Tribunal failed to understand the Common practice of Bangladeshi Politics.
The applicant claims he was denied natural and procedural fairness when the Delegate and the Tribunal asked many questions to test the credibility of the oral evidence. He is not a legal person who can satisfy a legal person by giving many examples of the cases of the court in support of his arguments.
3.The tribunal intentionally asked several irrelevant questions to undermine and to confuse the applicant during the hearing. The applicant claims that he was denied procedural fairness when the Tribunal did not follow the Hearing Rules under the Migration Act of 1958.
The applicant claims that the Tribunal repeated same types of questions to discredit the applicant’s evidence. The applicant claims that he was denied procedural fairness when the Tribunal did not conduct the Interview in a Judicial manner.
The applicant claims that The Tribunal’s finding of reasons is Confused and the test for persecution was not applied according to the Rules of the Migration Act
Particulars:
The applicant claims that the test of fear of persecution applies whether the victim has a low profile or high profile. It is fact that high profile leaders arc targeted -easily but it does not mean that low profile political activists are not killed in any attacks. In reality the low profile political activists are killed first before the big political leaders in the name of security.
The applicant claims that he fears from the supporters of the Awami League Party. He fears the Awami League government that they can not give effective protection.
4.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 applicant claims the Tribunal, which is a independent judicial body. The applicant has a legitimate expectation from the Tribunal that it would assess the applicant’s claim according to required procedural fairness.
The applicant left Bangladesh because of fear from the Government Authority governed by the Awami League (AL). The applicant believes that there is a real risk that the applicant would suffer significant harm on return Bangladesh.
The RRT 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 claims that his fear of harm or mistreatment is for the Convention reasons of political opinion and membership of the particular social group. 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)
I have before me as evidence the court book filed on 24 May 2016. I received as a submission the applicant’s affidavit accompanying his original show cause application. Both the applicant and the Minister filed an outline of legal submissions in advance of today’s hearing. They also made oral submissions at the trial of the matter today.
It is plain from the applicant’s oral submissions that he disagrees with the Tribunal decision. Those submissions addressed exclusively the merits of the Tribunal decision. I invited submissions from the applicant concerning the legal issues raised in his amended application and his submissions. He was not, however, able to advance those issues. That may be because the grounds have been suggested by someone else. The applicant has no legal training and is, therefore, at a disadvantage. On my perusal of the grounds in the amended application and the available material, I am not persuaded that the grounds advanced by the applicant have any legal substance.
In his closing submissions, the applicant referred to his medical condition and asked to be provided with a Medicare card. He also seeks work rights. It is plain from the material in the court book that the applicant suffers from a medical condition, which is apparently a serious one. He would benefit from having access to professional medical attention during the period that he remains in Australia. That is a matter for the Minister and his Department to consider.
In relation to the grounds of review advanced, I agree with the Minister’s submissions.
Ground 1
By Ground 1, the applicant contends that the Tribunal “failed to take into account the whole of the oral and written evidence.” Ground 1 further contends that the Tribunal “misconstrued or misttok(sic) the fact” with respect to this evidence. In particular, the applicant contends that the Tribunal failed to consider, or misconstrued, first, the “applicant’s visible involvement in the incident which took place around June 2011” and, secondly, a letter from Dr David Ende. These contentions must fail for the reasons that follow.
First, it is clear from the Tribunal’s decision record that it considered the applicant’s claim to have been beaten by a group of Awami League members[34]. Having found that the applicant was not a “politically active person”[35], the Tribunal did not accept his claim to have been beaten by Awami League supporters as claimed. This finding was open to the Tribunal on consideration of the evidence before it and for the reasons it gave.
[34] CB 180 at [37]-[38]
[35] CB 180 at [36]
Secondly, in considering the applicant’s claims arising from his medical condition, the Tribunal took into account the medical report from Dr David Ende dated 7 January 2016, which indicated that the applicant was suffering from “significant urethral structures”[36]. Whilst accepting that the applicant suffered from a medical condition, the Tribunal noted that the medical evidence did not offer a view as to the cause of the applicant’s injuries and so was not, of itself, capable of establishing his claims for protection[37].
[36] CB 182 at [49]
[37] CB 180 at [38]
As such, there is no basis for the contention that the Tribunal “ignored” the applicant’s involvement in the Awami League attack, Dr Ende’s letter, or indeed, any of the applicant’s claims or evidence. It is trite to note that the weight to be given to any particular evidence is a matter for the Tribunal. [38] Ground 1 and its particulars do not reveal a misunderstanding or misconstruction of the evidence and do little more than express the applicant’s “emphatic disagreement” with the Tribunal’s findings.[39]
[38] Tran v Minister for Immigration [2004] FCAFC 297 at [5] – [7] per Kiefel, RD Nicholson and Downes JJ; see also Applicant WAEE v Minister for Immigration (2003) 75 ALD 630 at [46] per French, Sackville and Hely JJ
[39] Re Minister for Immigration; Ex parte Durairajasingham (2000) 168 ALR 407 at [67]
Ground 2
Ground 2 may be read as advancing three separate contentions, as follows:
a)that the Tribunal failed to take into account relevant considerations, namely, the applicant’s claimed involvement in the BNP as advanced in the statement attached to his protection visa application;
b)that the Tribunal failed to consider evidence, or otherwise, failed to understand, the “common practice of Bangladeshi politics”; and
c)that the Tribunal was biased.
The contention at [22](a) above must fail at a factual level. At [11] – [20] of its decision record[40], the Tribunal set out the applicant’s claim to fear harm on the basis of his involvement with the BNP, as contained in his statement. On the basis of its credibility concerns, the applicant’s lack of political knowledge and the absence of supporting country information, the Tribunal found that the applicant was not a publicly identifiable member of the BNP[41], or indeed, a politically active individual[42]. The Tribunal’s findings in this respect were open to it and do not reveal a failure to consider the applicant’s claims regarding his involvement in the BNP.
[40] CB 177
[41] CB 180 at [37]
[42] CB 180 at [36]
In respect of the contention at [22](b) above, the particulars to Ground 2 appear to contend that the Tribunal failed to consider evidence and submissions containing country information concerning, amongst other things, political parties in Bangladesh, sent on behalf of the applicant on 21 January 2016[43]. However, it is clear from the Tribunal’s decision that it set out the claims and country information contained in the said submissions[44], but ultimately concluded that the applicant would not be politically active were he to return to Bangladesh[45]. As such, there is no support for the contention that the Tribunal failed to have regard to evidence submitted on the applicant’s behalf, nor for the complaint that the Tribunal failed to understand the “common practice of Bangladeshi politics.” To the extent that the applicant cavils with the Tribunal’s treatment of that country information, it is well-established that the choice and assessment of country information is a matter for the Tribunal alone.[46]
[43] CB 143-156
[44] CB 178-179 at [23]-[30]
[45] CB 180 at [36]
[46] NAHI v Minister for Immigration [2004] FCAFC 10 at [11] – [13]
Turning to the assertion of bias, it is well-settled that an allegation of bias is a serious one which must be firmly and distinctly made and clearly proven.[47] A fair reading of the Tribunal’s reasons does not suggest that the Tribunal approached its task other than with a mind open to persuasion. There is no evidence before the Court upon which a fair minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the Tribunal, might reasonably apprehend that the Tribunal may not have brought an impartial mind to the review.[48]
[47] Minister for Immigration v Jia Legeng (2001) 205 CLR 507, 531
[48] see Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425; [2001] HCA 28 at [27]-[32]; NADH of 2001 & Ors v Minister for Immigration (2004) 214 ALR 264 at [115]
In essence, Ground 2 and its particulars cavil with the merits of the Tribunal’s findings and conclusions, thereby inviting impermissible merits review.[49]
[49] Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259, 272
Ground 3
By Ground 3, the applicant contends that he was denied procedural fairness and that the Tribunal “asked many questions to test the credibility of the oral evidence.” It is not clear in which way the applicant claims to have been denied procedural fairness. However, there is nothing on the face of the Tribunal’s decision record or the evidence before the Court to suggest that it breached the requirements of Part 7, Division 4 of the Migration Act, which Part is taken to be an exhaustive statement of the natural justice hearing rule in relation to the matters that it deals with.[50] In particular, the applicant was invited to attend a hearing pursuant to s.425 of the Migration Act. Contrary to the applicant’s contention that the Tribunal asked questions to “undermine and confuse the applicant during the hearing,” this is unsupported by the material before the Court. There is no indication that the applicant did not have a “real and meaningful opportunity” to participate in the hearing. Further, the Tribunal’s decision record indicates that adverse information was put to the applicant for comment at the hearing[51]. In the absence of further particulars or evidence to support the claimed denial of procedural fairness, it cannot be made out.
[50] Minister for Immigration v SZMOK (2009) 110 ALD 15 at [15] per Emmett, Kenney and Jacobson JJ.
[51] See CB 180-183 at [40], [42], [45], [53] and [55]
Insofar as Ground 3 amounts to a complaint that the Tribunal tested the applicant’s credibility, it is well-established that credibility findings, whilst not immune from jurisdictional error, are generally matters for the Tribunal.[52] There was no error in the Tribunal testing the applicant’s evidence, and on the basis of inconsistencies therein, disbelieving aspects of the applicant’s claims.[53] Beyond this, Ground 3 and its particulars do little more than state what, in the applicant’s view, the Tribunal’s findings should have been and do not establish any jurisdictional error.
[52] Durairajasingham, supra [67]
[53] Wu Shan Liang, supra 272
Ground 4
To the extent that Ground 4 may be read as a contention that the Tribunal erred in not considering s.91R of the Migration Act, such a contention cannot be made out. While s.91R was in operation at the time of the applicant’s application for protection, the Tribunal’s omission to explicitly refer to the provision does not amount to jurisdictional error in circumstances where there is no indication that the Tribunal misapplied the statutory provisions and where the Tribunal made comprehensive findings that the applicant had not been, and would not be, politically active in Bangladesh, and that he would not be suspected or treated as a homosexual. Moreover, in circumstances where the Tribunal correctly set out the statutory test for complementary protection in s.36(2)(aa)[54] and made findings with reference to that statutory test[55], the contention that the Tribunal “failed to apply the correct test in relation to the complementary Protection Provision” cannot succeed. Ground 4 does not identify any jurisdictional error in the Tribunal’s reasons.
[54] CB 186 at [8]
[55] CB 184 at [61]
The applicant’s submissions on this ground also appear to advance a contention that the Tribunal “ignored intentionally” his claim that he would be tried for murder and subject to the death sentence on his return to Bangladesh. There is nothing in the material before the Court to suggest that the applicant ever advanced this claim. As such, the Tribunal was not required to consider it. This contention does not appear to bear any factual relevance to the present matter.
Conclusion
I conclude that the applicant has failed to establish a case of jurisdictional error by the Tribunal. The decision is, therefore, a privative clause decision and the application must be dismissed. I will so order.
In consequence of the dismissal of the application, the Minister seeks an order for costs fixed in the sum of $5,800. 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.
I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,800.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 27 September 2017
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Standing
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