APT16 v Minister for Immigration

[2016] FCCA 2572

FEDERAL CIRCUIT COURT OF AUSTRALIA

APT16 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2572

Catchwords:
MIGRATION – Application for protection visa – review of decision of Administrative Appeals Tribunal – whether the Tribunal erred in failing to take into account relevant considerations – whether the Tribunal failed to identify the difference between serious harm and significant harm – whether the Tribunal erred in not applying the correct test to the complementary protection criteria – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476

Cases cited:

SZSHK v Minister for Immigration & Border Protection (2013) 138 ALD 26; [2013] FCAFC 125

Applicant: APT16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 650 of 2016

Judgment of: Judge Smith

Hearing date: 16 September 2016

Date of Last Submission: 16 September 2016

Delivered at: Sydney

Delivered on: 16 September 2016

REPRESENTATION

The applicant appeared in person.

Solicitors for the Respondents: Mr L. Leerdam, DLA Piper Australia

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $5,600.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 650 of 2016

APT16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Extempore and Revised)

1. The applicant is a citizen of Bangladesh who arrived in Australia on 6 May 2013. On 6 August 2013 he lodged an application for a protection visa. The applicant claimed protection on the ground that he and his family are Wahhabi Muslims. His father taught Wahhabism at a Madrasa. In 2010 the applicant was attacked by Sunnis because of his father, an influential Wahhabi and because the Sunnis were against Wahhabism. The applicant was subsequently warned that there were some people who wanted to kill him and, for that reason, he left Bangladesh and came to Australia.

2. On 14 October 2014, a delegate of the Minister made a decision not to grant the applicant a protection visa and the applicant applied to the Refugee Review Tribunal[1] for a review of that decision. On 1 March 2016, the Administrative Appeals Tribunal conducted a hearing at which the applicant gave evidence and made submissions. On 2 March 2016, the Tribunal made its decision to affirm the delegate’s decision. The Tribunal did not accept the applicant as a credible witness and found that the accounts of events on which his protection claims were based were false.

   [1] As it was then known. On 1 July 2015 it became the Administrative Appeals Tribunal: Tribunals Amalgamation Act 2015 (Cth).

3. In particular, the Tribunal did not believe that the applicant and his family were Wahhabi’s and disbelieved his claim that the applicant and his father participated in a Wahhabi party and spread the religion in Bangladesh. The Tribunal further disbelieved that:

   ·his father taught Wahhabism at a Madrasa;

   ·his father was attacked;

   ·the applicant was attacked or that the Sunnis ever harassed or harmed the applicant in Bangladesh or that they ever threatened to kill him;

   ·he went into hiding in Bangladesh or that the Sunnis went to his family home when he was in Australia and destroyed it and that his mother, wife and children were moving from place to place.

4. The Tribunal came to those conclusions on the basis of a number of significant contradictions in the applicant’s evidence and claims throughout the process of his application for review, which the Tribunal explained in over seven pages of its reasons for decision. The Tribunal found that there was no credible evidence as to why the applicant left Bangladesh and did not want to return there.

5. Further, the Tribunal concluded that the risk of the applicant suffering serious harm in Bangladesh was remote and that he did not hold a well-founded fear of persecution based upon any Convention grounds. It also found, for the same reasons, that there was no real chance that the applicant would suffer serious harm in Bangladesh. For those reasons, the Tribunal was not satisfied that the applicant satisfied the criteria for the grant of a protection visa and so affirmed the decision of the delegate.

Consideration

1. The applicant now seeks judicial review under s.476 of the Migration Act 1958 (Cth). In order to obtain the relief that the applicant seeks, he must establish that there is jurisdictional error in the Tribunal’s decision. There are three grounds in his application, and they are set out below:

   1.In making decision, the Refugee Review Tribunal acted without jurisdiction or in excess of jurisdiction when it failed to take into account relevant considerations of Complementary Protection Provisions..

   2..The applicant claims that the AAT did not consider relevant factors of the fear of persecutions when the applicant will return to Bangladesh. The AAT failed to identify the difference between serious harm and significant harm

   3.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.

2. The problem with each of these grounds is that none of them address the actual reasons of the Tribunal. Those reasons, as I have indicated above, were based upon findings of fact turning upon the Tribunal’s conclusion that the applicant was not a credible witness and that he had fabricated all of his claims. In those circumstances, it was open to the Tribunal to find that there was no real chance that the applicant would suffer serious harm in Bangladesh, and thus reject his claim to satisfy the complementary protection criterion.

3. I note that it is open to the Tribunal to make a finding on the complementary protection criterion on the basis of its findings upon which it based its refugee criterion findings: see SZSHK v Minister for Immigration & Border Protection (2013) 138 ALD 26; [2013] FCAFC 125 at [32] and [34], (Robertson, Griffiths and Perry JJ). In short, none of the issues in the application arise because there was simply no factual basis before the Tribunal to support any claim that the applicant might satisfy the criteria in either the refugee or the complementary protection criterion in the Act.

4. The applicant appeared at the hearing unrepresented and made a number of oral submissions in support of his application. First of all, he said that he had some medical problems that he had been having treatment for in Australia. Then he claimed that what he had told the Tribunal in support of his application for review was true, although the Tribunal thought that he was telling lies. Further, he claimed that he was attacked by Awami League supporters and that he was indicted falsely and framed.

5. None of these matters gives rise to, or establishes, any jurisdictional error in the Tribunal’s decision. First, the question of whether the applicant has medical issues is not a matter which determines one way or another whether the applicant is a refugee, or otherwise satisfies the criteria for the protection visa and, in any event, it is not a matter for the Court to determine.

6. The second issue, namely, that what the applicant said was true, simply goes to questions of the merits of the Tribunal’s decision. It may well be that the applicant was telling the truth in what he told both the department and the Tribunal in support of his claims however, for the reasons that it gave, the Tribunal rejected those claims as false. Each of the reasons given by the Tribunal was, in my view, cogent and open on the material before it. The reasons were explained over seven pages of the Tribunal’s decision and primarily based upon the inconsistencies in the applicant’s own evidence and claims.

7. Thirdly, the claim that the applicant was attacked by Awami League supporters was, together with all of the other factual claims upon which the applicant’s application for a visa was based, rejected by the Tribunal and is not a matter for the Court to determine. Finally, on the material before the Court it is clear that the applicant did not claim that he had been falsely indicted and framed. There is nothing in any of his statements or any of the submissions by the applicant’s advisers to support the proposition that it might have been claimed. For that reason, it is not something the Tribunal was required to consider and there was no error in its failure to do so.

Conclusion

1. For each of those reasons, I find there was no jurisdictional error in the Tribunal’s decision. The application must be dismissed.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Smith

Date:     6 October 2016