API16 v Minister for Immigration and Border Protection

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FEDERAL COURT OF AUSTRALIA

API16 v Minister for Immigration and Border Protection [2019] FCA 48

Appeal from: API16 v Minister for Immigration & Anor [2018] FCCA 370
File number: NSD 343 of 2018
Judge: GLEESON J
Date of judgment: 31 January 2019
Catchwords: MIGRATION – appeal from decision of Federal Circuit Court of Australia to dismiss application for review of decision of Administrative Appeals Tribunal affirming decision not to grant appellant protection visa – whether denial of procedural fairness by Tribunal’s conduct of hearing – whether Tribunal biased – whether Tribunal failed to have regard to a relevant consideration – whether credibility finding unreasonable – no jurisdictional or appellable error established – appeal dismissed
Legislation: Migration Act 1958 (Cth) ss 422B, 424A(1), 424(3), 424A, 424B
Cases cited:

Kioa v West [1985] HCA 81; 159 CLR 550

Minister for Immigration and Border Protection v SZTJF [2015] FCA 1052

Minister for Immigration and Citizenship v SZFLX [2009] HCA 31; (2009) 238 CLR 507

SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609

SZUYU v Minister for Immigration and Border Protection [2018] FCA 786

SZUYU v Minister for Immigration and Border Protection [2018] HCASL 320

T v Minister for Immigration & Multicultural Affairs [2000] FCA 467
Date of hearing: 16 August 2018
Registry: New South Wales
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 57
Counsel for the Appellant: The appellant appeared in person
Counsel for the First Respondent: Ms C Hillary
Solicitor for the First Respondent: DLA Piper Australia

ORDERS

NSD 343 of 2018
BETWEEN:

API16

Appellant
AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:

GLEESON J

DATE OF ORDER:

31 JANUARY 2019

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the first respondent’s costs of the appeal.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

GLEESON J:

  1. The appellant appeals from the decision of the Federal Circuit Court of Australia (“FCCA”), delivered on 22 February 2018, dismissing the appellant’s application for judicial review of a decision of the Administrative Appeals Tribunal (“Tribunal”) dated 2 March 2016: API16 v Minister for Immigration & Anor [2018] FCCA 370. The Tribunal affirmed a decision of a delegate of the first respondent (“delegate”), dated 23 October 2014, not to grant the appellant a Protection (Class XA) visa (“protection visa”).

  2. At the hearing of his appeal, the appellant represented himself. He filed written submissions and, with the assistance of an interpreter in the Bengali language, made oral submissions in support of his appeal.

    BACKGROUND

  3. The appellant is a male citizen of Bangladesh. He arrived in Australia as an irregular maritime arrival on 6 May 2013. The appellant subsequently applied for a protection visa on 6 September 2013, claiming that (in summary):

    (1)He is Bangladeshi and a Muslim.

    (2)He was a “strong supporter” of the opposition…

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Details
Case
[2019] FCA 48
Decision Date

CaseChat Overview and Summary

The appellant, a citizen of Bangladesh who arrived in Australia as an irregular maritime arrival, appealed against the decision of the Federal Circuit Court of Australia to dismiss his application for review of a decision of the Administrative Appeals Tribunal (AAT). The AAT had affirmed a decision of the delegate not to grant him a protection visa. The appellant contended that the AAT's conduct of the hearing denied him procedural fairness, that the AAT was biased, that the AAT failed to have regard to a relevant consideration, and that the AAT's finding of credibility was unreasonable. The court was required to determine whether the appellant's claims of procedural unfairness, bias, and the unreasonableness of the AAT's findings were substantiated. The court examined the evidence presented before the AAT and the AAT's reasoning in arriving at its decision. It found that the AAT had afforded the appellant procedural fairness, that there was no evidence of bias, that the AAT had considered all relevant matters, and that the AAT's finding of credibility was not unreasonable. The court concluded that no jurisdictional or appellable error was established, and therefore, dismissed the appeal. The appellant was ordered to pay the respondent's costs of the appeal.

Orders

Orders of the court

1. The appeal be dismissed.

2. The appellant pay the first respondent’s costs of the appeal.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

At the hearing of his appeal, the appellant represented himself. He filed written submissions and, with the assistance of an interpreter in the Bengali language, made oral submissions in support of his appeal. BACKGROUND The appellant is a male citizen of Bangladesh. He arrived in Australia as an irregular maritime arrival on 6 May 2013. The appellant subsequently applied for a protection visa on 6 September 2013, claiming that (in summary):(1)He is Bangladeshi and a Muslim. (2)He was a “strong supporter” of the opposition Bangladesh National Party (“BNP”), often attending and organising meetings and providing help where needed.(3)He was unable to vote as he did not hold a National ID card. He had attempted to obtain a National ID card, but had been prevented from doing so by the Awami League (“AL”) as the AL wished to prevent him from voting for the BNP.(4)In February 2012 he was attacked outside his village by members of the AL. These members beat him with a steel rod and threatened to kill him if he did not join their party or, alternatively, pay them money. He suffered a major injury to his right hand. The appellant informed his assailants that he could not pay them or join their party and they threatened to kill him should he not join them.(5)On many occasions members of the AL visited the appellant’s place of work to demand money from him and to attempt to force him to join their party. (6)He could not bear this treatment any longer and so, fearing for his life, fled to Malaysia and ultimately to Australia. (7)He feared for his life should he return to Bangladesh because the AL is in power and he is therefore regarded as an enemy of the Bangladeshi government, such that the government would not give him protection.DELEGATE’S DECISION By his decision record of 23 October 2014, the delegate refused to grant the appellant a protection visa. The delegate found that the appellant was a “low-level” supporter of the BNP. However, the delegate did not accept that the appellant had a high political profile in Bangladesh; that he would be viewed as a threat by the AL, or any other group or individual in Bangladesh; or that he was attacked, harassed or threatened by supporters of the AL. TRIBUNAL HEARING AND DECISION The appellant applied for review of the delegate’s decision by the then Refugee Review Tribunal on 28 October 2014. On 19 February 2016, the appellant provided submissions to the Tribunal making the following new claims under cover of a letter which stated that “until now, I failed to disclose some of the core issues of my claim” and requested that the Tribunal take them into account:(1)He was married to a Hindu woman and had been persecuted by her uncle because of their inter-faith marriage. (2)Members of his extended family and other Muslims in his mosque were unhappy that he had married a Hindu woman without first converting her to Islam. (3)His family in Bangladesh were involved in the politics of the BNP and he feared political vengeance from the AL.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

By his decision record of 23 October 2014, the delegate refused to grant the appellant a protection visa. The delegate found that the appellant was a “low-level” supporter of the BNP. However, the delegate did not accept that the appellant had a high political profile in Bangladesh; that he would be viewed as a threat by the AL, or any other group or individual in Bangladesh; or that he was attacked, harassed or threatened by supporters of the AL. TRIBUNAL HEARING AND DECISION The appellant applied for review of the delegate’s decision by the then Refugee Review Tribunal on 28 October 2014. On 19 February 2016, the appellant provided submissions to the Tribunal making the following new claims under cover of a letter which stated that “until now, I failed to disclose some of the core issues of my claim” and requested that the Tribunal take them into account:(1)He was married to a Hindu woman and had been persecuted by her uncle because of their inter-faith marriage. (2)Members of his extended family and other Muslims in his mosque were unhappy that he had married a Hindu woman without first converting her to Islam. (3)His family in Bangladesh were involved in the politics of the BNP and he feared political vengeance from the AL. The appellant appeared at a hearing before the Tribunal on 24 February 2016 to give evidence and present arguments in support of his review application. The Minister’s written submissions summarised the Tribunal’s decision as follows:6After considering the appellant’s evidence in relation to seeing a psychologist in December 2015, the AAT concluded that the appellant was able to give meaningful responses to the questions being asked at the hearing, and that he had been given a real opportunity to put evidence and submissions in support of his case (at [11]). The AAT considered the appellant’s general credibility at [12] - [14] and was not satisfied that he was a credible witness.7Having considered the evidence before it, the AAT found that the appellant had embellished, if not fabricated his involvement with the BNP. However, the AAT accepted that the appellant supported the BNP but that this support was that of a mere occasional participant (at [19]).8The AAT did not accept that the appellant was harmed or harassed by the Awami League or that he had any profile that would motivate this treatment (see [20] - [22]). Additionally the AAT found that the appellant would not be harmed in Bangladesh if he re-engaged in his BNP activities (see [23]). After considering the evidence and claims before it, the AAT accepted the appellant’s claim that he was attacked in February 2011 but found that the attack related to a random robbery and was not for any reason stated by the appellant (see [26] - [28]).9The AAT considered the appellant’s new claims in the submission of 19 February 2016 but ultimately rejected them as it was not satisfied that the appellant had provided a sufficient reason as to why these claims had not been raised earlier and was satisfied that the claims were false (see [29] - [39]).10After considering country information, the AAT found that the appellant would not face a real chance of persecution for his minimal political activities in Bangladesh (see [41]- [45]). The AAT also found that the appellant did not have a real chance of suffering any harm for reason of his religion (see [46] - [48]). The AAT did not accept that the appellant would face a real chance of suffering serious harm for reason of his unlawful departure nor for reason of being a failed asylum seeker (see [49] - [55]).11The AAT then considered the alternative complementary protection criterion in relation to the appellant’s poor health and found that there was [no] real risk that the appellant would suffer significant harm, now or in the reasonably foreseeable future. The AAT found that any lack of sophistication or inadequacy of medical services provided would be due to the lack of available resources in Bangladesh and not any form of intentional discrimination (see [59] - [66]).

Ratio Decidendi

Legal Principle Established

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