APS16 v Minister for Immigration

[2016] FCCA 1802

FEDERAL CIRCUIT COURT OF AUSTRALIA

APS16 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1802

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Protection (Class XA) visa – real chance test – bias – whether the Tribunal failed to consider an integer of the applicant’s claims – whether the Tribunal unreasonably discounted evidence before it – no jurisdictional error  identified – amended application dismissed.

Legislation:

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

Applicant: APS16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 649 of 2016

Judgment of: Judge Street

Hearing date: 15 July 2016

Date of Last Submission: 15 July 2016

Delivered at: Sydney

Delivered on: 15 July 2016

REPRESENTATION

The applicant appeared in person.

Solicitors for the First Respondent: Ms C Saunders
DLA Piper

ORDERS

1. I dispense with the show cause hearing under r.44.12 of the Federal Circuit Court Rules 2001.

2. The amended application is dismissed.

3. The Applicant pay the costs of the First Respondent fixed in the amount of $4,200.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 649 of 2016

APS16

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 14 March 2016, affirming the 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, and his claims were assessed against that country.  The applicant was found to be a Sunni Muslim and feared persecution, in summary, because of his father’s role in Jamaat-e-Islami, in which he says he was vice-president, and fears that he will be hit by members of the Awami League if he returns to Bangladesh, and because of his alleged involvement in the Jamaat-e-Islami.

3. The applicant arrived in Australia as an illegal maritime arrival at Darwin on 5 May 2013.  On 30 October 2014, the delegate found that the applicant did not meet the criteria to be granted a protection visa, and the applicant filed an application for review on 6 November 2014.  By letter dated 13 January 2016, the applicant was invited to attend a hearing on 2 March 2016.  The applicant appeared on that date to give evidence and present arguments, and was assisted by his migration agent.

4. Prior to the hearing, on 29 February 2016, the applicant’s representative provided submissions in support of the applicant’s claim, including addressing the issue of relocation.  After the hearing, it was apparent from the Tribunal’s record that the applicant was provided with an opportunity up to 9 March 2016 to adduce further evidence or submission, and that no such documents were provided.  Relevantly, the Tribunal found that it was prepared to accept that the applicant would face harm in his home area, and was prepared to accept that adequate state protection against such harm in his home area was not available in the current political climate.

5. It was in those circumstances the Tribunal turned to the issue of whether the applicant could relocate to another particular area in which the applicant had lived and worked for almost three years.  In relation to the particular individual whom the applicant had identified that he feared harm from, including that person’s brother, the Tribunal pointed out that the applicant had not encountered any such problems whilst he had been living in the particular area from those persons.  It was in those circumstances that the Tribunal found that it was reasonable for the applicant to relocate to the particular area.

6. The Tribunal took into account whether there would be any reasons why the applicant could not live in the area, and took into account that the applicant had lived in that area, and worked in that area without incident, for three years before departing.  The Tribunal found that the applicant was only ever a low-level supporter of Jamaat-e-Islami, and noted that the applicant was no longer interested or motivated to support any political party.

7. Accordingly, the Tribunal was not satisfied there was a real chance the applicant would suffer any serious harm if he relocates to the particular area for reason of his political opinion.  The Tribunal found it did not accept that the applicant would have to modify his political opinions or behaviour in order to avoid being harmed on return to the particular area.  The Tribunal found that the applicant did not have a well-founded fear of persecution by reason of his political opinion if he returns to Bangladesh now, or in the reasonably foreseeable future.

8. The Tribunal turned to consideration of complementary protection, and took into account the reasons already articulated in finding that it was safe and reasonable for the applicant to relocate to the particular area, to avoid any significant harm he may encounter in his local area. It was in those circumstances that the Tribunal found it was not satisfied there was any substantial ground for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Bangladesh, there was a real risk he will suffer significant harm for reasons claimed, or for any other reason. The Tribunal found that the applicant did not meet the criteria under ss.36(2)(a) or 36(2)(aa), and affirmed the decision under review.

9. On 5 May 2016, the Registrar of the Court made orders providing the applicant with an opportunity to file an amended application, affidavit evidence, and submissions. The applicant filed an amended application on 29 June 2016, but did not file any other documents.  At the commencement of the hearing, the Court explained to the applicant that this was a final hearing to determine whether the Tribunal’s decision was affected by relevant legal error.

10. The Court explained that the relevant legal error had to be either an excess of statutory power by the Tribunal, or the denial of procedural fairness to the applicant. The Court explained that this involved determining whether the Tribunal’s decision was made lawfully, or whether the Tribunal’s decision was made fairly. The Court explained that, if satisfied that the Tribunal’s decision was affected by relevant legal error, it would set aside the decision and send it back for further hearing.

11. The Court explained that, if not satisfied the Tribunal’s decision was affected by relevant legal error, it would dismiss the applicant’s application. The applicant confirmed that he understood what had been said by the Court. The Court explained that it would have identified the evidence, and then hear submissions from the applicant, and then hear submissions from the first respondent, and then hear submissions from the applicant in reply. The applicant confirmed that he understood what had been said by the Court.

12. The grounds of the amended application are as follows:

    1. The Administrative Appeal Tribunal made a jurisdictional error when it failed to consider each integer of his claim and or failed to take into account the whole of the oral and written evidence in determining whether he feared persecution claimed amounted to persecution and serious harm within the meaning ofs 91 R of the Migration Act.

    Particular : During Departmental Intervew and Tribunal hearing the applicant gave oral and written the evidence why he is targated by the Awami League Party workers. The applicant wanted to justify that he and his family are targated by the Awami League Party because his father is vice president of Jammat-e-Islami . His father is very old member of the Jamaat-e-Islami (Statement of claim- Court Book Page 73)

    His family s Sunni Muslim.(Court Book Page 73) He and his father were caught in a dispute over a girl to whom he wanted to help .But the incident has caused his father and him many difficulties because the boy's brother is member of Awami League . The applicant claims that this incident was not recorded in his entry interview because he was not given enough time to say everything he wanted to say.

    The applicant claims that he was denied natural justice and procedural fairness when he was not given enough time through which he could expand his arguments. The Tribunal did not account this incident and nature and proceedings of entry interview.

    Applicant believes it is an is an error or a path leading to error , error is itself is failure to perform the statutory task imposed on the Tribunal by the Migration Act.

    In a case Minister for Immigration and Border Protection v MZYTS (2013) 136 ALD 547 at 34 Hon Judge Kenny. Griffith and Mortimer JJ stated: the task involves:

    [ F] irst , correct understanding of the basis on which the visa applicant says she or he has fear of persecution in her or his country of nationality and second, a correct understanding of how , in respect Of each of the bases articulated , it is to be determind whether that fear is objectively well founded

    That task could not be lawfully undertaken without “ a consciousness and consisderation of the submission ,evidence and material advanced by the visa applicant most likely to give the Tribunal a accurate picture of the ongoing circumsatnces on the ground in Zimbabwe for him if he were to be returned there “[38}

    2. The Tribunal made a jurisdictional error when it discared all the oral and written submission without giving any solid evidence of cumulative credibility concern in the finding of reasons. The Tribunal made decision with closed mind .

    Particular :

    In the decision the AAT found that there were some inconsistency between he gave at the Tribunal hearing and his written claims and the statements he made at the protection interview. at Immigration Detention Centre , which was included in the Departmental file . Applicant claims that he misunderstood and responded to the questions posed by the Tribunal in a situation of nerviousness and distress.

    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. The Tribunal failed to Assess the applicant's fear of persecution in pursuance to current explosive situation in Bangladesh which has been highlighted in all of the world .

    Particular

    The AAT ignored the relevant consideration related with complementary Protection set out ins 36(2) (aa).

    The Tribunal did not believe when the applicant told to the Tribunal and submitted evidence of torture of Jamaate-lslami Party supporters in Bangladesh by the present Awami League ruling Government. In May 2016 .when a famous Jamaate-Islami leader was hanged and thousands of its supporters were arrested.

    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's fear of harm is well -founded and that there is a real chance that be will suffer persecution if he returned to Bangladesh. As the applicant stated in the Primary application if he is compelled to go back to his country he will be killed by the Awami League Party workers and he has genuine protection from Bangladesh Governement ruled by as Awami League Party.

    Applicant claims he will be harmed ,tortured and arrested when he will be compelled to go back to his country Bangladesh. If he is compelled to go back as Returned Assylum seeker , there is a hundered percent chance that he will be killed or arrested, the Tribunal failed to account the current volatile situation against supporters of Jamaate-Islami Party supporters.

    (errors in original)

13. From the bar table, the applicant maintained that he could not relocate to the particular area, and that he would not be safe there, and he could not obtain protection from the police.  Nothing said by the applicant from the bar table identified any jurisdictional error by the Tribunal.

14. The applicant sought to take issue with the adverse findings by the Tribunal. This is not a case where the Tribunal did not accept the applicant’s evidence in part, and it was because the Tribunal had accepted the applicant’s evidence in part that it went on to address the consideration of relocation. The adverse findings by the Tribunal in relation to relocation were open on the material before the Tribunal. 

15. In relation to ground 1, there is no integer of the applicant’s claim that the Tribunal failed to take into account.  On the face of the Tribunal’s decision, it correctly identified the relevant law and engaged in an orthodox detailed analysis of the applicant’s claims and evidence.

16. The adverse findings by the Tribunal cannot be said to lack an evident and intelligible justification. The applicant was provided with a genuine hearing. On the material before the Court, the Tribunal complied with its statutory obligations. There is nothing before the Court to establish any denial of procedural fairness by the Tribunal to the applicant. As earlier noted, the applicant had an opportunity to put on further submissions after the hearing, and he did not do so. 

17. The particulars in ground 1 restate the applicant’s claims, but do not identify any jurisdictional error. Ground 1 also makes a generalised assertion to a failure by the Tribunal to comply with its statutory task.  There is nothing in the reasons of the Tribunal, or the material before the Court, to establish any want of understanding by the Tribunal of the applicant’s claims, and the Tribunal complied with its statutory obligations in making findings that were open to it on the material before the Tribunal. Ground 1 fails to make out any jurisdictional error.

18. In relation to ground 2, the assertion that the applicant’s evidence was the subject of a general discarding is unfounded. For reasons already given, the applicant’s credibility was in part accepted by the Tribunal.  The adverse findings by the Tribunal, in relation to the applicant’s ability to relocate, were open. The proposition that the Tribunal had a closed mind is an allegation of bias. Bias must be clearly alleged and properly proven. No allegation of bias is proven. Insofar as the allegation of bias refers to the adverse findings by the Tribunal, that is not conduct by reason of which a fair-minded lay observer might reasonably apprehend that the Tribunal might not bring an independent and impartial mind to the determination of the matter on its merits.

19. To the extent that the applicant makes reference to what occurred at the interview, no part of the Tribunal’s reasoning appears to be dependent on that interview.  The Tribunal was entitled to take into account the findings that it had made in considering the issue of complementary protection. There is no substance in the contention that the Tribunal failed to apply the correct test in relation to complementary protection.  The Tribunal’s statement of the law in relation to complementary protection was correct, and the Tribunal’s reasons disclose an application of that law. The Tribunal’s decision, reasons in support of any adverse finding made by the Tribunal correctly apply the complementary protection law.

20. The other particulars contained under ground 2 are, in substance, a repetition of the applicant’s claims and do not identify any jurisdictional error by the Tribunal. Ground 2 fails to make out any jurisdictional error.

21. The amended application fails to make out any jurisdictional error. The amended application is dismissed.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 26 July 2016