Apm16 v Minister for Immigration

[2016] FCCA 2493

FEDERAL CIRCUIT COURT OF AUSTRALIA

APM16 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2493

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

Legislation:

Federal Circuit Court Rules 2001

Migration Act 1958 (Cth), ss.36, 425

Cases cited:

Minister for Immigration v Jia Legeng (2001) 205 CLR 507

Minister for Immigration v MZYNN (2012) 133 ALD 479

Minister for Immigration v Lat (2006) 151 FCR 214

Minister for Immigration v SZNPG (2010) 115 ALD 303

Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259

NAIS v Minister for Immigration (2005) 223 ALR 171

Randhawa v Minister for Immigration (1994) 52 FCR 437

Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425

SZBEL v Minister for Immigration (2006) 228 CLR 152

Tran v Minister for Immigration [2004] FCAFC 297

Applicant: APM16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 644 of 2016

Judgment of: Judge Driver

Hearing date: 27 September 2016

Delivered at: Sydney

Delivered on: 27 September 2016

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms A Wong of Mills Oakley

INTERLOCUTORY 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 in the sum of $3,606 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 644 of 2016

APM16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(amended from transcript)

1. This is an application to review a decision of the Administrative Appeals Tribunal (Tribunal).  The decision was made on 6 March 2016.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. 

2. 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 outline of submissions, filed on 13 September 2016. 

3. The applicant is a citizen of Bangladesh who arrived in Australia on 28 March 2013[1] and participated in Entry Interview on 11 April 2013.[2] He lodged an application for a Protection (Class XA) visa on 7 June 2013.[3] The applicant was assisted before the Department by his appointed legal representatives.[4]

   [1] CB 117

   [2] CB 1-20

   [3] CB 21-47

   [4] CB 99-102

4. The applicant outlined his written claims to fear harm in Bangladesh in a statutory declaration sworn 7 June 2013.[5] The Tribunal accurately summarised the applicant’s written claims.[6] The applicant claimed he was targeted because of his involvement with the Bangladesh Nationalist Party (BNP), which was ideologically opposed to the Awami League (AL). He claimed that he had been involved in the BNP for several years, his family were all associated with the BNP and several relatives had been BNP members. He believed the AL targeted him and his family so the AL would not lose power.

   [5] CB 48-55

   [6] CB 171-173 [5]-[14]

5. In particular, he made claims that his first wife went missing after they separated, she left the applicant for another man and the applicant was targeted for harm by his first wife’s family. The applicant claimed his first wife’s family were AL supporters and her father was a committee member of the AL in his village. Her father targeted and threatened the applicant because he blamed him for his daughter going missing. Two of her uncles also threatened the applicant and her father then poisoned all the fish in the applicant’s fish farm. The applicant also claimed that 10 to 12 individuals from the AL approached him whilst he was looking after his father’s land, demanded that he pay five lakhs taka and beat and tortured him. Two or three of these individuals were relatives of his first wife’s family and one was her father. The applicant feared for his life so he borrowed money from his father and paid them four lakhs taka.

6. The applicant also claimed that whilst he was shopping in a market, AL members abducted and blindfolded him, beat and tortured him and slashed his wrist. The applicant claimed that several of his abductors were members of his first wife’s family and demanded that the applicant either return his first wife or pay them money. One week before the applicant left Bangladesh (in May 2012), one of his first wife’s uncles approached him in the market, demanded that he find his first wife or pay her family money and threatened the applicant. The applicant fled from the market but was chased by AL members and hid at his house until he knew they had departed. The applicant went to stay at his sister’s house but claimed his father was threatened. He attempted to reconcile with his first wife’s family but this failed. When the threats continued he made arrangements through his brother to depart Bangladesh for Australia. He feared he would be harmed or killed if he returned and was unable to relocate because the AL was the ruling party in Bangladesh and could locate him.

7. The applicant also provided copies of various certificates and translated and untranslated documents to the Department in support of his claims,[7] which the Tribunal also expressly considered.[8]

   [7] CB [56]-[65]

   [8] CB 173 [15]

The delegate’s decision

1. On 7 July 2014, the applicant was invited through his appointed representatives to attend an interview before the delegate on 12 August 2014.[9]

   [9] CB 104-107

2. On 15 August 2014, the delegate made a decision refusing to grant the applicant a Protection visa.[10] The delegate found the applicant’s claims were not credible or substantiated and rejected them in their entirety.[11] The delegate was not satisfied that the applicant would face a real chance of serious harm[12] or significant harm[13] if he returned to Bangladesh.

   [10] CB 111-129

   [11] CB 120-124

   [12] CB 126

   [13] CB 128

The Tribunal’s proceedings

1. On 27 August 2014, the applicant lodged with the Tribunal an application for review of the delegate’s decision.[14] An incomplete copy of the delegate’s decision was attached to the application[15] but the applicant later provided the Tribunal with a complete copy of the decision.[16]

   [14] CB 130-135

   [15] CB 138

   [16] CB 138; CB 171 [4]; CB 175 [25]

2. The applicant provided the Tribunal with copies of the documents he submitted to the Department, as well as copies of a BNP ID card, a First Information Report (FIR) and other documents dated 5 May 2013 and a statement dated 4 December 2012 by a police inspector.[17] The Tribunal considered these documents.[18]

   [17] CB 139-151

   [18] CB 174 [19]

3. On 31 July 2015, the Tribunal invited the applicant to attend a hearing on 16 September 2015,[19] which was later re-scheduled to 13 November 2015.[20] The applicant attended the hearing[21] and provided his identity card.[22]

   [19] CB 158-160

   [20] CB 160-162

   [21] CB 163-165

   [22] CB 166

4. At the hearing, the applicant confirmed that his only fear about returning to Bangladesh was because of his first wife’s family.[23]

   [23] CB 175 [21]

The Tribunal’s decision

1. The Tribunal identified inconsistencies in the applicant’s oral evidence and differences between his oral evidence and information he provided at the delegate’s interview. The Tribunal also had concerns about the genuineness of the applicant’s supporting documents and gave them little weight. It concluded that the applicant had not been truthful about critical aspects of his claims and was not a witness of truth. It accordingly rejected all of his claims.[24]

   [24] CB 175-181 [25], [42]-[43], [45], [48]

2. The Tribunal identified eight concerns to support its adverse credibility findings. It found he gave different evidence at the hearing about where he lived in Bangladesh[25] and also found that his oral evidence at the hearing was different to information he gave at the delegate’s interview about the nature of his marriage with his first wife.[26] It was also concerned that despite being asked a number of times about what his first wife’s family did to him, the applicant failed to mention at the hearing events described in his statutory declaration.[27] In particular, he failed to refer in his oral evidence to an attempted reconciliation with his first wife’s family.[28]

   [25] CB 175-176 [26]-[27]

   [26] CB 176 [28]-[29]

   [27] CB 176-177 [30]-[31]

   [28] CB 177-178 [33]-[34]

3. The Tribunal also found the applicant’s oral evidence at the hearing that he had been a BNP supporter since the age of 15 or 16 was different to the dates of events described in his statutory declaration, which on the Tribunal’s calculation indicated that he had been a BNP member since 2008.[29] In addition, the Tribunal found the applicant’s demonstrated knowledge of the BNP was less than could be expected from someone who had supported them for the period that the applicant claimed. For example, his explanation of the process about how he became a member of the BNP differed from the specific process outlined in the BNP constitution and he was unable to speak about the four principles of the BNP or correctly describe the BNP flag.[30]

   [29] CB 178 [35]

   [30] CB 178 [36]

4. The Tribunal also had concerns with the applicant’s supporting documents. For example, the FIR document[31] appeared to identify the applicant’s father as the defendant and the sub-FIR document[32] appeared to be a statement from his first wife’s father, named the applicant’s father as his first wife’s husband and stated that her body was found with a bullet injury to the head. The Tribunal also relied on independent country information (ICI) that indicated document fraud in Bangladesh was prevalent.[33] In addition, the photocopy of the applicant’s purported BNP ID card[34] indicated that the applicant’s post was President (Union Youth Party), whereas in his oral evidence he said he was Assistant Vice President.[35]

   [31] CB 143

   [32] CB 144-145

   [33] CB 178-179 [37]

   [34] CB 150

   [35] CB 179 [39]

5. The Tribunal found that each of the eight concerns it identified reflected poorly on the applicant’s credibility and the reliability of his evidence or the documents he had provided. Having rejected all of the applicant’s factual claims, the Tribunal did not accept that he faced a real chance of serious harm[36] or that there was a real risk he would suffer significant harm[37] if he returned to Bangladesh.

   [36] CB 181 [45]-[46]

   [37] CB 181-182 [48]-[51]

6. It was open to the Tribunal to resolve questions of credit, attribute weight to particular evidence and consider the inherent improbability of events.[38] Further, its conclusion that the applicant was not a credible witness was a finding of fact par excellence.[39] It was a matter solely for the Tribunal to identify such material as it found relevant to its reasoning and to give that material appropriate weight.[40]

   [38] Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 at 281-282

   [39] Minister for Immigration v MZYNN (2012) 133 ALD 479 at [33]; NAIS v Minister for Immigration (2005) 223 ALR 171 at [9]

   [40] Tran v Minister for Immigration [2004] FCAFC 297 at [5]

Present proceedings

1. These proceedings began with a show cause application, filed on 22 March 2016.  The applicant continues to rely upon that application.  He has not taken up the opportunity afforded him by procedural orders made by a registrar to file and serve an amended application.

2. The grounds in the application are virtually the same as the grounds appearing in several other applications by applicants from Bangladesh, which the Court has heard in recent days.  They are: 

   1. The AAT erred in law and erred in making findings of well-funded fear. The Tribunal wrongly applied the law to the fact as found to relation to the seriousness of harm that constitute persecution as a member of a particular social group and due to the political opinion presented the applicant claims.

   Particulars:

   Section 91 R 910 9 B0 79c) of the Migration Act requires the persecution to be of serious harm and systematic discriminatory. During hearing the Tribunal adopted a line of questioning designed to establish the harm from the perspective of the applicant persecute asking why be harmed rather than address as to the motive. The applicant claims that the AAt misconstrued the facts.

   The Applicant is a truthful witness when in a written reasons for claiming protection declared that his ability to recall particular dates and sequence of particular events is limited as he has minimal education. As a result the information provided at his transferee interview may not be entirely accurate. He has tried to provide information to the best of his knowledge.

   The applicant declared he fears returning to Bangladesh. He left Bangladesh because his life was under constant threat.

   The applicant very clearly and passionately told to the Tribunal all about the harassment and torture suffered by the followers of the Awami League and the father of separated wife. He told to the Tribunal that his fish farm was poisoned by father of his separated wife. All of the fish died immediately. He was not knowing whereabout of his separated wife. Wife’s family falsely accused him he is hiding his wife after separation. The applicant told to the Tribunal ofmany incidents of harassment and torture by the Awami League supportrs of that area, but the Tribunal discarded all of the evidence of torture.

   2. The applicant claims that the Tribunal discarded all the considerations without giving any solid evidence of any fabricated documents submitted to Tribunal. The applicant claims he was denied natural justice and procedural fairness when the Tribunal did not accept any written or oral evidence. It made decision with closed mind.

   Particular:

   In the decision the AAT found that the witness is not a witness of truth and it is not satisfied the applicant told trust in relation to critical aspects of his claims. Applicant claims that the Tribunal misunderstood or mistook the facts.

   At the time of hearing the applicant was nervious and could not understand what the tribunal is asking and what the Bangali Interpreter is teling to the Member. The applicant found at many places during the hearing the Interpreter did not convey his words in English language to the Tribunal Members.

   Applicant claims that he had no ability to express his evidence orally. He was always confused about what he is saying and what he understood the questions asked by the Tribunal.

   3.The Refugee Review Tribunal made a jurisdictional error when it failed to real test of persecution and harm according to the Migration Act. 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 Tribunal raised several irrelevant issues to discredit the facts. The Tribunal discarded all of the evidence of a necessary and foreseeable consequence of the applicant being removed from Australia to Bangladesh. Applicant told the facts based on truth. He said that he was genuine fear from the supporters of Awami league. If he is compelled to go back he will be killed by the Awami League supporters. He said that he has no reasonable protection from the local authorities, He claims that the that there is no reasonable protection from the Bangladesh Government.

   The Tribunal 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 recognised in the Refugee Convention. Applicant’s fear of harm is well-founded and there is a real chance that he will suffer persecution if he returned to Bangladesh. (errors in original)

3. The application is supported by a short affidavit filed with it, which I received.  I also have before me as evidence the court book filed on 30 May 2016.  Only the Minister prepared written submissions in accordance with the registrar’s procedural orders.  I invited oral submissions from the applicant today.  He submits that he told the truth to the Tribunal but notes that he was not believed.

4. In view of that outcome, the applicant doubts that there is any more which can be done.  The applicant raised with me health concerns that he has.  He suffers from a painful hernia and also headaches which he puts down to the stress of his circumstances.  He has consulted a doctor who has advised that he should undergo an operation for the hernia.  He tells me, however, that he cannot access free medical assistance and does not have a Medicare card.  That is a matter which the Minister’s department could consider, particularly if it is seeking to secure the applicant’s early return to Bangladesh.

5. The applicant’s affidavit filed in support of his application on 22 March 2016 simply identifies him as the applicant in these proceedings and attaches a copy of the Tribunal’s refusal notification and decision. It fails to advance his case in any meaningful way.

6. In terms of today’s show cause hearing, however, the applicant is unable to advance an arguable case of jurisdictional error.  The Tribunal adhered to its procedural code and provided the applicant with a fair hearing opportunity.  There is nothing to indicate that the Tribunal overlooked or misunderstood any of the applicant’s claims.  There is nothing to indicate bias.  Contrary to the grounds in the application, the Tribunal did not apply incorrect tests to the tasks it had to perform.

7. In that regard, I agree with the Minister’s submissions in relation to the grounds of review.

Ground one

1. The first ground makes multiple complaints that the Tribunal “erred in law”, “wrongly applied the law to the fact (sic) as found” concerning the seriousness of harm found to constitute persecution arising from the applicant’s claims as a member of a particular social group and political opinion. The applicant also alleges the Tribunal misconstrued the facts, “adopted a line of questioning designed to establish the harm from the perspective of the applicant” rather than addressing the motives of the attackers and “discarded all of the evidence of torture”. The applicant maintains the Tribunal discarded his evidence and found his documents were fabricated “without giving any solid evidence”, denied him natural justice and procedural fairness and had a closed mind.

2. These complaints misconceive the proper role of the Tribunal and mischaracterise the Tribunal’s actual findings and reasons. The Tribunal was under no obligation to uncritically accept any and all allegations made by the applicant.[41] It was for the applicant to provide his evidence and arguments in sufficient detail to enable the Tribunal to reach the requisite state of satisfaction.[42] The Tribunal plainly had serious concerns about the applicant’s credibility and it was entitled to confront him with the identified deficiencies and inconsistencies in his evidence at the hearing.

   [41] Randhawa v Minister for Immigration(1994) 52 FCR 437

   [42] Minister for Immigration v Lat (2006) 151 FCR 214 at [76]

3. As noted at [15] to [18] above, the Tribunal identified multiple concerns with the applicant’s oral and documentary evidence and the findings it made in rejecting his claims and evidence were open to it on the available materials and for the reasons it gave. It is also apparent that the Tribunal “raised its concerns” with the applicant at the hearing and he had an opportunity to respond.[43] There is accordingly no proper basis to contend that he was denied fairness. The Tribunal at the hearing clearly complied with its obligations under s.425 by putting the applicant on notice of the dispositive “issues arising in relation to the decision under review”, namely his credit and the credibility of his claims.[44]

   [43] CB 175-180 [25]-[40]

   [44] SZBEL v Minister for Immigration (2006) 228 CLR 152 at [37]

1. Where credibility is in issue, the Tribunal will necessarily have to test the evidence presented, often vigorously.[45] The requirements of procedural fairness will often require that an applicant be plainly confronted with matters that bear adversely on their credit or bring their account into question. This does not establish bias or a closed mind on the part of the Tribunal. Bias is a serious allegation that must be firmly and distinctly made and clearly proven.[46] It is a rare case in which a court will find that a decision maker has breached the natural justice hearing rule by exhibiting bias based simply upon the decision maker’s reasons. There is nothing to support the applicant’s bland assertion that the Tribunal approached its task with a closed mind. Contrary to the applicant’s assertions, the Tribunal provided cogent reasons for rejecting his supporting documents[47] and for finding that he was not a truthful witness.[48] It is a matter solely for the Tribunal to identify such material as it finds relevant to its reasoning and to give that material appropriate weight.[49]

   [45] Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at [30]

   [46] Minister for Immigration v Jia Legeng (2001) 205 CLR 507 at [69]; Minister for Immigration v SZNPG (2010) 115 ALD 303 at [18]

   [47] CB 178-179  [37]-[40]

   [48] CB 175-177 [26]-[36]

   [49] Tran v Minister for Immigration [2004] FCAFC 297 [5]

2. The applicant also reiterates in ground one that he is a truthful witness and contends his inability to recall particular dates and sequences of events was due to his minimal education. He also variously states that he was nervous and confused at the hearing, could not understand what the Tribunal or the interpreter was saying and the interpreter misinterpreted his evidence in places. Other than the alleged misinterpretation of his evidence, these explanations were raised by the applicant at the hearing to explain the identified discrepancies and inconsistencies in his evidence.[50] The Tribunal expressly considered the applicant’s responses but did not accept them. Again, his complaints in this regard are, in substance, an expression of his disagreement with the Tribunal’s factual findings about his credibility but this constitutes an impermissible invitation for the Court to review the merits of the Tribunal’s decision.[51] The applicant’s complaint that the standard of interpretation at the Tribunal hearing was “inadequate” was not raised with the Tribunal and the applicant fails to identify the parts of his evidence that were allegedly misinterpreted. As he has not filed any evidence (such as a transcript of the Tribunal hearing) to support this contention the complaint is baseless and cannot succeed.

   [50] CB 175-179, [26], [28], [32], [33], [35], [36], [38], [39]

   [51] Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 [272]

Ground two

1. In ground two, the applicant appears to assert that the Tribunal erred by applying the wrong test in relation to whether he faced a real chance of persecution or a real risk of significant harm in accordance with the complementary protection provisions. He contends the Tribunal raised “several irrelevant issues to discredit the facts”, “discarded all of the evidence” and ignored relevant considerations relating to the applicant’s claimed harm and mistreatment.

2. There are no meaningful particulars to explain how the Tribunal is alleged to have raised irrelevant matters or ignored relevant considerations. The matters to which the Tribunal had regard in assessing the applicant’s claims and evidence were directly cogent and relevant to the task it was required to undertake and in assessing and considering the materials the applicant had placed before it. Contrary to the applicant’s assertions, the Tribunal cited the correct tests for assessing the applicant’s claims against the refugee and complementary protection criteria,[52] and there is nothing to indicate that it misunderstood or erred in applying the relevant statutory tests. Again, these complaints amount to the applicant’s disagreement with the Tribunal’s factual conclusions about his claims and whether he satisfied the relevant criteria in s.36(2)(a) and s 36(2)(aa).

   [52] CB 183-184

3. I conclude that the applicant is unable to demonstrate an arguable case of jurisdictional error. I will order that pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application be dismissed.

4. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the court scale.  The applicant does not dispute the claim for costs, although he claims he is impecunious.  As has been repeatedly stated, however, impecuniosity is not a reason for the court to refrain from making a costs order.

5. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,606 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date: 29 September 2016