AMQ16 v Minister for Immigration

[2016] FCCA 2084

FEDERAL CIRCUIT COURT OF AUSTRALIA

AMQ16 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2084

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Protection (Class XA) visa – show cause hearing – real chance test – whether the Tribunal erred in making adverse credibility findings – whether the Tribunal failed to apply the correct test – whether the Tribunal’s decision lacked an evident and intelligible justification – no arguable jurisdictional error identified – application dismissed under r.44.12.

Legislation:

Migration Act 1958 (Cth), ss.36(2), 476

Federal Circuit Court Rules 2001, r.44.12

Cases cited:

Spencer v Commonwealth of Australia (2010) 241 CLR 118

Applicant: AMQ16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 506 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 First Respondent: Ms L Buchanan
Australian Government Solicitor

ORDERS

1. The application is dismissed under r.44.12 of the Federal Circuit Court Rules2001.

2. 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 506 of 2016

AMQ16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. 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 17 February 2016, affirming a decision of the delegate not to grant the applicant a Protection (Class XA) visa.

2. The applicant was found to be a citizen of Bangladesh.  The applicant claimed he departed Bangladesh in June 2009 and travelled to Malaysia legally on a work visa and then became unlawful until February 2013.  The applicant says he then travelled by boat to Indonesia, where he stayed for about a month, and the applicant then arrived at Darwin on 28 March 2013.

3. The applicant claims to fear harm from supporters of the Awami League and members of the Chhatra League.  The applicant fears that he will be killed due to his political involvement and claims that he has been threatened with death if he returns.

4. The applicant fears persecution because of his imputed political opinion due to his actions in supporting BNP, his longstanding friendship with the BNP members and his father’s and uncles’ support of the BNP.

5. The matter was fixed for a show cause hearing today. At the commencement of the hearing, the Court explained to the applicant that the nature of the hearing was to determine whether the applicant had an arguable case. The Court explained 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 denial of procedural fairness to the applicant.

6. The Court explained that, in summary, this meant the Court was considering whether there was a reasonable argument that the Tribunal’s decision was unlawful or unfair.  The Court explained that it would have identified the evidence and then hear submissions from the applicant and then hear submissions from the solicitor for the first respondent and then hear submissions from the applicant in reply.  The applicant confirmed that he understood the nature of the hearing, as explained by the Court.

7. On 19 September 2014, the delegate refused to grant the applicant a protection visa.  The delegate was not satisfied that the applicant had been truthful about his past experiences in Bangladesh in relation to his claims and his departure.  The delegate found that the applicant did not have a well-founded fear and was not satisfied the applicant had a real chance of being persecuted for a Refugees Convention reason.

8. The delegate was also not satisfied 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 be subject to significant harm.

9. The applicant applied for review on 15 October 2014.  By letter dated 7 December 2015, the applicant was invited to attend a hearing before the Tribunal on 12 February 2016.  The applicant attended on that date to give evidence and present arguments.  The Tribunal summarised the relevant law and identified the applicant’s claims and evidence.

10. The Tribunal found that the applicant had falsely claimed to be a member of the BNP.  The Tribunal identified reasons in support of its credibility concerns, and it was not satisfied that the applicant’s friendship circle was comprised of other BNP activists.  The Tribunal was not satisfied that the applicant has anything to fear on return to Bangladesh for reason of being associated with people known for their BNP political activism.

11. The Tribunal did not accept the applicant was an active member or supporter of the BNP or that he had a profile such that there is a real chance he would be seriously harmed on return to Bangladesh for reason of his political opinion.

12. The Tribunal did not accept there was a real chance the applicant would suffer serious harm if he returns to Bangladesh, now or in the reasonably foreseeable future, for reason of his political opinion or for any other reason.  The Tribunal found the applicant did not have a well-founded fear of persecution.

13. The Tribunal also found that it was not satisfied 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. It was in these circumstances the Tribunal found that the criteria under s.36(2) of the Migration Act 1958 was not satisfied and affirmed the decision of the delegate.

14. On 21 April 2016, a Registrar of the Court made orders providing the applicant with an opportunity to file an amended application, affidavit evidence and submissions.  No such documents were filed.

15. From the bar table, the applicant asserted that he had filed documents in July 2016.  No such documents were on the court register. No documents were produced by the applicant to support the assertion. No such documents had been received by the first respondent. The Court does not accept that any further documents were filed by the applicant. From the bar table, the applicant maintained that he could not go back to Bangladesh and that he would be killed and that his life was in danger.

16. The applicant maintained that the adverse credit findings by the Tribunal were unjustified and that he should have been believed.  What was said by the applicant from the bar table was, in essence, an invitation for this Court to engage in an impermissible merits review.  This Court has no power to make fresh findings of fact in relation to the applicant’s claims and evidence. 

17. The grounds of the application are as follows:

    1. 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 . He was a truthful witness and correctly he responded all the answers related with his association and activities with the BNP party .. In 2009 he was attacked by Awami League supported Student Union that is called Chatra League.The Awami League supporters continuously threatened him to kill. . The Tribunal totally ignored the oral and written evidence given by the applicant in support of his claims.

    2. 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 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 BNP.

    The applicant claims that he left Bangladesh because of life threatening environment and circumstances. He left Bangladesh and went to Malaysia for the safety of life.

    He could not make any application for Protection Visa in Malaysia because he was not knowing whether he can lodge any application for Refugee Visa. He could not return Bangladesh because of fear of life. He was not able to relocate in Bangladesh because the Chatra Dal people are always active every where in Bangladesh and because of that he left Bangladesh.

    If he is compelled to go back to his country he will be killed. Applicant's fear of harm is well - founded and his circumstances are such he cannot go back to his country.

18. In relation to ground 1, it is apparent the Tribunal correctly identified the relevant test and made findings that were open to it on the evidence. The adverse credibility findings cannot be said to lack an evident and intelligible justification. The particulars in support of ground 1 do not identify any proper basis upon which it can be said that the Tribunal failed to apply the correct test in relation to s.36(2)(a). Ground 1 fails to identify any arguable jurisdictional error.

19. In relation to ground 2, this seeks to raise that the Tribunal failed to apply the correct test in relation to complementary protection. The Tribunal identified the correct test, and the adverse findings by the Tribunal were open.  The particulars to ground 2 fail to identify any proper basis upon which it can be said that the Tribunal failed to correctly apply the test in relation to complementary protection.  Ground 2 fails to identify any arguable jurisdictional error.

20. As indicated, what was said by the applicant from the bar table was an invitation to this Court to review the merits of the matter.  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].

21. I am satisfied that the application fails to identify any arguable jurisdictional error. I am satisfied that this is an appropriate matter in which to apply 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: 25 August 2016