AMY16 v Minister for Immigration

[2017] FCCA 2186

FEDERAL CIRCUIT COURT OF AUSTRALIA

AMY16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2186

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugee Division) – protection visa – whether the Tribunal denied the applicant procedural fairness – no jurisdictional error identified – application dismissed.

Legislation:

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

Applicant: AMY16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 520 of 2016

Judgment of: Judge Street

Hearing date: 8 September 2017

Date of Last Submission: 8 September 2017

Delivered at: Sydney

Delivered on: 8 September 2017

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents: Mr D Eberl
Australian Government Solicitor

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $5,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 520 of 2016

AMY16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Act”), in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 15 February 2016, affirming the decision of the delegate not to grant the applicant a protection visa. The applicant was found to be a citizen of Bangladesh and his claims were assessed against that country. The applicant arrived in Australia as an irregular maritime arrival on 28 March 2013.

Claims for protection

1. On 20 June 2013, the applicant applied for a protection visa. The applicant claimed that he owned a shop at a particular location and people involved with the Awami League visited his shop and demanded money. The applicant alleges after paying on two occasions, he refused to pay them any more and they threatened to kill him. The applicant alleges he was attacked and robbed and assaulted by these people on the way home from work, but that he managed to escape and hid in his grandmother’s house before leaving Bangladesh.

2. The applicant alleges that his father visited the store the day after the event and saw that it had been vandalised and looted. The applicant alleges that five or six people that night went to his family home, asking as to the applicant’s whereabouts. The applicant alleges that with the assistance of an agent, he travelled to Thailand and then travelled to Malaysia and then to Indonesia, before travelling to Australia.

3. The applicant fears harm from people involved with Awami League as a businessman, and as someone who did not pay money demanded by members of the Awami League. The applicant also fears harm because of an imputed political opinion in supporting the Bangladesh National Party.

4. On 17 September 2014, the delegate found that the applicant failed to meet the criteria for the grant of a protection visa under the Act. The delegate made adverse credibility findings in relation to the applicant.

The Tribunal’s Decision

1. On 30 September 2014, the applicant applied for review. The applicant was sent a letter on 6 January 2016 inviting the applicant to attend a hearing on 12 February 2016. The applicant appeared on that date to give evidence and present arguments.

2. On 15 February 2016, the Tribunal decided to affirm the decision under review. The Tribunal, in its reasons, identified the applicant’s background in relation to the application for review, as well as the applicant’s claims and the outcome before the delegate. The Tribunal set out the relevant law. The Tribunal then addressed the applicant’s claims and evidence in detail.

3. The Tribunal noted that the applicant was invited to comment on concerns the Tribunal had about the applicant’s credibility and the plausibility of his claims, whether he could relocate to another area in Bangladesh where there would not be a real chance that he would be subject to serious harm, whether it would be reasonable for the applicant to relocate to an area in Bangladesh where there would not be real risk that he would suffer significant harm, and also in relation to the country information as to the treatment of returnees who departed illegally.

Credibility findings

1. The Tribunal identified giving careful consideration to the applicant’s claims and was mindful of the applicant’s age. The Tribunal, however, reached the conclusion that the central elements of the applicant’s claims were not credible. The Tribunal found that the key aspects of his claims over time changed and that he was unable to credibly explain significant inconsistencies in his evidence, and his evidence about why people from the Awami League would target him and pursue him throughout Bangladesh. The delegate found the applicant’s evidence in that regard highly improbable.

2. The Tribunal reached the conclusion that the applicant’s claims that he was targeted by people from the Awami League were not credible. The Tribunal identified that the applicant had provided inconsistent evidence about the night that he was attacked by members of the Awami League. The Tribunal identified the applicant also provided inconsistent evidence about when he first gave the Awami League money. The Tribunal found aspects of the applicant’s evidence to be vague and highly improbable.

3. The Tribunal found the applicant’s claims that he had to leave Bangladesh otherwise people from the Awami League would pursue him throughout the country strained credulity. The Tribunal did not accept that the applicant has credibly explained why he was targeted by the Awami League, that his father was actually a supporter of the BNP and the applicant claims his father gave money and was asked to pay his son’s debts, particularly when the applicant’s evidence indicates that people from the Awami League knew where his father lived.

4. The Tribunal made reference to the applicant raising a claim that he was at risk of being harmed because he had witnessed people being killed. The Tribunal did not accept that the applicant witnessed the murder or murders. The Tribunal did not accept that the murder of the owner of an electrical shop, which happened six or seven years before the applicant left Bangladesh, was anything to do with the reasons the applicant left Bangladesh. The Tribunal rejected the suggestion that there is a real chance the applicant would suffer harm of any type, including serious harm or significant harm, because of his knowledge of that event.

5. The Tribunal found the inconsistencies in the applicant’s evidence about his interactions with people from the Awami League cast serious doubt upon his claims that he was ever the target of demands for money. The Tribunal found the applicant’s claims, that people from the Awami League wanted to kill him and pursue him wherever he went in Bangladesh, to be unpersuasive. The Tribunal did not accept that the applicant had told the truth about why he left Bangladesh. The Tribunal did not accept that the applicant was targeted by people from the Awami League because he refused to comply with their demands for money.

6. The Tribunal did not accept that the applicant was ever subject to demands for money, harassed, threatened, insulted by people involved with the Awami League as claimed. The Tribunal did not accept that people involved with the Awami League went to his family home to look for him, threatened his family and damaged their property. The Tribunal did not accept that the applicant’s shop was looted and vandalised by the Awami League as claimed.

7. Because the Tribunal did not accept the applicant was ever targeted, threatened or harmed by people from the Awami League, the Tribunal did not accept that the applicant has been imputed with the political opinion as being opposed to the Awami League for refusing to comply with their demands. The Tribunal did not accept that the applicant at the time he left Bangladesh was of any adverse interest to people involved in the Awami League. The Tribunal found that the applicant’s claims are not credible.

Relocation

1. The Tribunal found it was unnecessary to consider whether the applicant could relocate, but for completeness did so. In that regard, the Tribunal found it would be reasonable for this particular applicant to relocate to another area of Bangladesh away from his home region, where there would not be a real chance he would be targeted for serious harm or significant harm by people from the Awami League.

Refugee assessment

1. The Tribunal made reference to having discussed with the applicant his father was still living in the home area and does not appear to have been facing any problems because of political activities, and that the Tribunal found that in those circumstances, it was difficult to accept that there was a real chance that the applicant would suffer harm if returned to Bangladesh because of any political opinion that may be imputed to the applicant because of his father’s involvement in the BNP. The Tribunal did not accept there was a real chance that the applicant would be subject to harm of any type, including serious harm or significant harm, because of any political opinion that may be imputed to him because his father is a BNP supporter. The Tribunal found the applicant would not be an active BNP supporter if he returned to Bangladesh now or in the reasonably foreseeable future.

2. The Tribunal did not accept there was a real chance the applicant would face serious harm for the reasons claimed by the applicant. The Tribunal did not accept that the applicant has a well-founded fear of being persecuted for his political opinion, actual or imputed, or any other Convention reason if he returns to Bangladesh now or in the reasonably foreseeable future.

3. The Tribunal did not accept that the applicant has a well-founded fear of persecution for his political opinion or because of his membership of a particular social group of businessmen imputed to be BNP supporters or because of his membership of a particular social group of failed asylum seekers or for any other Convention reason if returned to Bangladesh now or in the reasonably foreseeable future. The Tribunal found the applicant did not meet the criteria under s.36(2)(a) of the Act.

Complementary protection assessment

1. The Tribunal did not accept that there are substantial grounds for believing that as a necessary and foreseeable consequence of the removal of the applicant from Australia to Bangladesh, there is a real risk that he will suffer significant harm for the reasons claimed. The Tribunal did not accept that there is a real chance that the applicant could be imprisoned or otherwise subject to treatment amounting to serious harm or significant harm for reasons relating to his departure from Bangladesh unlawfully.

2. The Tribunal found that the applicant failed to meet the criteria under s.36(2)(aa) of the Act and affirmed the decision under review.

Proceedings before this Court

1. 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.

Grounds in the application

1. The grounds in the application are as follows:

   1. The Administrative Appeals Tribunal officer erred in law to come to a decision dismissing my application not finding that the Department of Immigration and Border Protection did not consider that I was a victim of persecution for my political belief as an activist of Bangladesh Nationalist Party prior to my departure from Bangladesh

   2. The Honorable Administrative Appeals Tribunal officer did not find that there was lack of procedural fairness in the decision of the Department of Immigration and Border Protection to consider that I was physically abused for my political belief and my life was at risk which forced me to leave Bangladesh for safety of my life. I was not accepted by Tribunal as a credible witness and refused my application.

   3. The Administrative Appeals Tribunal Officer made error to find that the Department of Immigration and Border Protection failed to accept that the persecutions I experienced in Bangladesh and I shall be imprisoned and tortured if returned to Bangladesh. The Tribunal refused my claim on the ground that I am not a credible witness for my claims though I presented all relevant documents and evidences in support of my claims before the Tribunal prior to hearing.

   4. The Administrative Appeal Tribunal officer erred in not finding that the DIBP erred in law amounting to jurisdictional error in finding that I do not have genuine fear of persecution for a convention reason and I do not meet the criteria set out in s 36(2) of Protection Visa.

   5. The Administrative Appeals Tribunal officer erred in not finding that the DIBP refused my application on the ground that l would face punishment would be completely politically motivated.

The hearing

1. At the commencement of the hearing, the Court explained to the applicant that this is a final hearing to determine whether the Tribunal’s decision is 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, this meant the Court was considering whether the Tribunal’s decision was unlawful or unfair. The Court explained that if satisfied the Tribunal’s decision was unlawful or unfair, the decision would be set aside and sent back for further hearing. The Court explained that if not satisfied that the decision was unlawful or unfair, the application would be dismissed with costs.

2. 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.

3. From the bar table, the applicant invited the Court to revisit the matter again. The applicant also maintained that he had told the truth to the Tribunal. This is a case where the applicant’s credibility was the subject of adverse findings by the delegate.

Consideration

1. The Tribunal provided rational and logical reasons in support of the adverse credibility findings that were open on the material before the Tribunal. This Court does not have power to revisit the merits. This Court’s powers are confined to considering whether or not there is any relevant legal error by the Tribunal. Nothing said by the applicant from the bar table identified any jurisdictional error.

Ground 1

1. In relation to Ground 1, it is apparent that the Tribunal took into account the applicant’s claimed fear of persecution on the basis of an imputed political opinion and made adverse credibility findings that were open to the Tribunal on the material before the Tribunal.

2. Ground 1 reflects a disagreement with those adverse findings and does not identify any jurisdictional error.

Ground 2

1. In relation to Ground 2, the applicant was invited to attend a hearing consistent with the statutory obligations by the Tribunal. On the face of the material before the Court, the Tribunal complied with its statutory obligations in the conduct of the review. On the face of material before the Court, the applicant had a real and meaningful hearing before the Tribunal. On the face of material before the Court, the Tribunal complied with its obligation to procedural fairness in the conduct of the review.

2. It was not relevant in relation to Ground 2 whether the decision of the Department may be the subject of alleged error or denial of procedural fairness, as it is the decision of the Tribunal that enlivens this Court’s jurisdiction. This Court does not have power or jurisdiction to review the decision of the delegate. For the reasons already given, the Tribunal’s adverse findings in relation to the applicant’s claims, and in respect of the applicant’s credit, were open. No jurisdictional error is made out by Ground 2.

Ground 3

1. Ground 3 reflects again a disagreement with the adverse findings by the Tribunal, which for the reasons already given were open and does not identify any jurisdictional error.

Ground 4

1. Ground 4 also reflects a disagreement with the adverse findings by the Tribunal that were open on the material before the Tribunal and does not identify any jurisdictional error.

Ground 5

1. Ground 5 also reflects disagreement with the adverse findings by the Tribunal. Those adverse findings were open. No jurisdictional error is made out by Ground 5.

Conclusion

1. In substance, Grounds 1 to 5 invite this Court to engage in impermissible merits review. This Court has no power to determine the application on compassionate grounds. No jurisdictional error is made out by the application. Accordingly the application is dismissed.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:

Date:  28 September 2017