Aog17 v Minister for Immigration

[2018] FCCA 227

FEDERAL CIRCUIT COURT OF AUSTRALIA

AOG17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 227

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – interlocutory dismissal of a show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), ss.424AA, 424A, 425

Cases cited:

SZGIY v Minister for Immigration [2008] FCAFC 68

Applicant: AOG17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 405 of 2017

Judgment of: Judge Driver

Hearing date: 1 February 2018

Delivered at: Sydney

Delivered on: 1 February 2018

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Mr A Day of DLA Piper

INTERLOCTUORY ORDERS

1. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,200.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 405 of 2017

AOG17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

Introduction and background

1. The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 17 January 2017.  The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.  Background facts relating to the applicant’s claims for protection and the decision of the Tribunal on them are set out in the Minister’s submissions filed on 23 January 2018. 

2. The applicant is a male citizen of Bangladesh.  He applied for a protection (subclass 866) visa on 22 December 2014.[1]  The applicant’s protection claims are summarised as follows:

   a)he is a worker for and supporter of the Bangladesh Nationalist Party (BNP);

   b)he was harassed, arrested and tortured by Awami League (AL) party supporters;

   c)he is illiterate and works as a labourer;

   d)he is an active political activist for the BNP and participated in demonstrations, and meetings;

   e)he received frequent threats from AL supporters and he believed his life was at risk;

   f)he was attacked and tortured.  He had no choice but to leave the country for his safety;

   g)he fears being harassed, persecuted and discriminated against for reasons of his political opinion in support of the BNP.  He fears his life will be at risk; and

   h)if returned he would not be able to live his life in peace and with dignity.

   [1] Court Book (CB) 1 - 47

3. On 22 June 2015, the applicant was sent a letter of invitation to attend a protection visa interview.[2]  However, the applicant did not attend.

   [2] CB 58 - 62

4. The delegate found that, at interview, the applicant would have been given an opportunity to substantiate his claims for protection and to respond to any adverse information if applicable.  Since the applicant did not attend the scheduled protection visa interview, the delegate did not have an opportunity to test the credibility of the applicant's claims and therefore made no findings of fact in relation to his claims.

5. Without having had the opportunity to verify the applicant’s claims and obtain substantiating detail from him, the delegate was unable to be satisfied that his claimed fear of persecution in Bangladesh was well-founded.  On 17 July 2015, the delegate refused grant of the visa.[3]

   [3] CB 68 - 78

6. On 11 August 2015, the applicant applied to the Tribunal for review of the delegate's decision.[4] 

   [4] CB 79 - 396

7. The applicant attended a hearing before the Tribunal on 5 October 2016.[5] 

   [5] CB 412 - 415

8. The Tribunal made its decision on 17 January 2017, affirming the decision under review.[6]

   [6] CB 417 - 432

The decision of the Tribunal

1. Having considered all the applicant’s claims and all the evidence, the Tribunal found that the applicant was not a witness of truth.  The Tribunal found that he fabricated his material claims for the purpose of obtaining a protection visa.[7]  This was based upon a large number of inconsistencies in the applicant’s account and concerns with respect to his supporting documents, which were discussed in detail at [17]-[49].

   [7] At [51]

2. The Tribunal did not accept that the applicant was a supporter or member of the BNP or its Student wing/Youth wing.  It followed that the Tribunal did not accept any of his claims that flowed from that.  The Tribunal was not satisfied that the letters from the BNP, the Medical Certificate, the Complaint to the Police, the First Information Sheet, the Charge Sheet and the Court order were authentic documents.  The Tribunal did not accept that the applicant had any outstanding charge or charges, court case or warrant against him.  The Tribunal did not accept that he was of adverse interest to the AL, the police, the Bangladeshi courts or any other Bangladeshi authority.  The Tribunal did not accept that he was involved in a family dispute that resulted in him suffering an injury to his head for which he had to receive treatment at a hospital.[8]

   [8] At [54]

3. The Tribunal did not accept that the applicant left Bangladesh because his life was at risk.  The Tribunal did accept that he was at risk of being targeted by AL activists and the police if he returned to Bangladesh.  The Tribunal did not accept that he was at risk of being harassed, persecuted, discriminated against, arrested and tortured if he returned to Bangladesh.  The Tribunal did not accept that he was at risk of being punished in relation to a false case.  The Tribunal did not accept that he would not be able to live a life with dignity if he returned to Bangladesh.  The Tribunal did not accept that he had been advised by family and friends not to return to Bangladesh.[9]

   [9] At [55]

4. The Tribunal was ultimately not satisfied that there was a real chance that the applicant would suffer serious harm for any of the reasons claimed if he returns to Bangladesh.[10]

   [10] At [56]

5. The Tribunal rejected the entirety of the applicant's material claims on the basis that they were fabricated for the purpose of obtaining a protection visa.  As a result, the Tribunal was not satisfied that there was a real risk that the applicant would suffer significant harm for any of the reasons claimed if he returned to Bangladesh.[11]

   [11] At [59]

The present proceedings

1. These proceedings began with a show cause application filed on 13 February 2017.  The grounds in the application are:

   1.  The Administrative Appeals Tribunal's decision affected by jurisdictional error.

   Particulars:

   The Administrative appeals tribunal failed to consider a claims or integer of claims and failed to consider whether applicant had a well-founded fear of persecution in the reasonable foreseeable future upon return to his own country of origin. The Tribunal had no jurisdictions to make such decision because its reasonable satisfaction was not arrived in accordance with the provisions of the Migration Act 1958. The Tribunal denied the applicant procedural fairness by reaching conclusions that the applicant is not a credible witness and his claims were implausible. The Tribunal member in his decision records did not ask any conventions relation questions whether the applicant had fear of persecution in his own country of residence.

   2. The Administrative Appeal Tribunal made findings without evidence. The Administrative Appeals Tribunal rejected the applicant's evidence before the Tribunal and failed to believe the applicant as a credible witness, such failure constituted a breach of s425 of the Migration Act 1958 (Cth).

   Particulars:

   The tribunal in her decision records and interview records failed to consider any evidence put by the applicant as credible, believable without any evidence. The honourable member has discredited the evidence just only the applicant's inability to remember or recall various issues and the dates at the time of hearing.

2. In addition to the applicant’s short affidavit filed with his application, I have before me as evidence the court book filed on 14 July 2017.

3. Only the Minister prepared written submissions in accordance with procedural orders made by a Registrar.  The applicant told me that he had not had the opportunity to read and understand the Minister’s submissions.  To deal with that, I had the Minister’s solicitor present his submissions orally first.  The applicant then responded.

4. The applicant told me that he felt disadvantaged, because he was not represented by a lawyer.  It was initially unclear whether the applicant was referring to these proceedings or the Tribunal proceedings.  The applicant clarified that before the Tribunal he was initially assisted by a friend and later assisted by a lawyer, Mr Singh, who died before the Tribunal hearing.  The applicant told me that he was disadvantaged as a consequence, in that he could not produce at the Tribunal hearing further documents in support of his claims.

5. There is no indication in the court book that the applicant appointed a representative during the Tribunal proceedings.  In any event, I do not accept that the applicant was disadvantaged by his apparent inability to produce documents in support of his claims at the Tribunal hearing.  His problem before the Tribunal was not an absence of documents, but rather the quality of the documents that had been submitted prior to the hearing.  Further, he confirmed to the Tribunal the accuracy of the written claims made by his friend based on his oral account.

6. The Tribunal’s decision turned on fundamental and detailed adverse credibility conclusions.  Those conclusions were open to the Tribunal for the reasons it gave.  There was no procedural unfairness before the Tribunal. 

7. I otherwise agree with the Minister’s submissions in relation to the applicant’s grounds of review.

Ground 1

1. Ground 1 asserts that Tribunal decision is affected by jurisdictional error for the following reasons:

   a)the Tribunal failed to consider claims or integer of claims;

   b)the Tribunal failed to consider whether the applicant had a well-founded fear of persecution;

   c)the Tribunal’s reasonable satisfaction was not arrived at in accordance with the provisions of the Migration Act 1958 (Cth) (Migration Act);

   d)the Tribunal denied the applicant procedural fairness by reaching conclusions that the applicant was not a credible witness and that the applicant’s claims were implausible; and

   e)the Tribunal failed to ask any conventions relation questions, namely, whether the applicant had fear of persecution in his own country of residence.

2. I accept that, contrary to the allegations made in this ground, the Tribunal clearly considered, and rejected, the applicant’s claims.  The applicant’s complaints in this regard seek impermissible merits review.

3. To the extent that the applicant takes issue with the Tribunal’s questioning, it is apparent that the applicant again seeks to take issue with the Tribunal’s rejection of his claims.  If the applicant had sought to complain about the manner of questioning at the hearing, it would have been incumbent upon him to particularise this complaint and to provide evidence, in the form of a transcript of the Tribunal hearing.  He has not done so.

4. The applicant’s assertion that the Tribunal denied him procedural fairness is in fact a complaint that the Tribunal made adverse credibility findings, which again seeks impermissible merits review. The Tribunal complied with its statutory obligations under ss.425 and (to the extent that any arose) 424A of the Migration Act:

   a)the applicant was clearly on notice from the Tribunal’s questioning at the hearing that his credibility and the authenticity of his documents were in issue. The applicant was afforded the opportunity to address these issues, in compliance with s.425 of the Migration Act;

   b)the Tribunal states at [47] that it put information to the applicant pursuant to s.424AA of the Migration Act. However, this information probably did not enliven the Tribunal’s obligations under s.424A(1) of the Migration Act. This is because the date of the applicant’s arrival in Australia and the date of his visa expiry were in themselves neutral and not adverse to his application.[12]  Nevertheless no error arises from the Tribunal purporting to put the information to the applicant in circumstances where it was not required to do so;[13]  and

   c)the Tribunal’s s.424A obligations were otherwise not enlivened in this matter.

   [12] See SZGIY v Minister for Immigration [2008] FCAFC 68 where the Full Court (Dowsett, Bennett and Edmonds JJ) found that the date of the appellant's arrival in Australia and the date of the visa application was not information for the purposes of s.424A(1) because it was, independently and of itself, neutral (at [23], [25] and [29]). Further, the Full Court found that the use of these dates to deduct delay to reach an adverse credibility finding, was not information as it was neutral (at [27] and [29]).

   [13] SZGIY v Minister for Immigration [2008] FCAFC 68

Ground 2

1. Ground 2 claims that the Tribunal breached s.425 of the Migration Act by making adverse credibility findings “without evidence”. It is apparent that this ground expresses disagreement with the Tribunal’s credibility findings and should therefore be seen as an attempt to cavil with the merits of the Tribunal’s decision. Contrary to the allegation made in this ground, the Tribunal’s credibility findings were clearly based on cogent reasoning and evidence, being the issues it identified at [17]-[50]. As noted above, those issues were discussed at the hearing in compliance with s.425 of the Migration Act.

2. The Tribunal considered the applicant's claims and evidence and gave detailed reasons for why it did not accept that the applicant had a well-founded fear of persecution if he returned to Bangladesh.  These findings were open to the Tribunal on the evidence before it, and for the reasons it gave.

Conclusion

1. The applicant has failed to establish an arguable case of jurisdictional error by the Tribunal.

2. I will, accordingly, order that pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application be dismissed.

3. In consequence of the dismissal of the application, the Minister seeks an order for costs fixed in the sum of $3,200.  The applicant did not oppose a costs order in principle, but indicated he may need the opportunity to pay by instalments.

4. I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,200.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date:     2 February 2018