Arx16 v Minister for Immigration

[2016] FCCA 2496

FEDERAL CIRCUIT COURT OF AUSTRALIA

ARX16 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2496

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:

Migration Act 1958 (Cth), ss.36, 476

Cases cited:

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

Re Minister for Immigration; ex parte Durairajasingham (2000) 168 ALR 407

Applicant: ARX16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 726 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 726 of 2016

ARX16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Administrative Appeals Tribunal (Tribunal).  The decision was made on 7 March 2016.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.  Background facts relating to the applicant’s claims for protection and the decision of the delegate and the Minister on them are set out in the Minister’s outline of submissions filed on 19 September 2016.   

2. The applicant is a citizen of Bangladesh who arrived by boat on 28 February 2013[1]. He participated in an entry interview[2] and made an application for a protection visa on 1 July 2013[3].  The applicant set out his written claims in a statutory declaration dated 12 June 2013[4].

   [1] Court Book (CB) 30

   [2] CB 1-16

   [3] CB 17-69

   [4] CB 77-80

3. The applicant claimed to fear returning to Bangladesh because he would be tortured and killed by the Sarbahara party. The applicant claimed that the Sarbahara party began to target his family in 2012. They came to his family home on two occasions. On the first occasion there were about 15 men who asked the applicant for money. The men broke things in the house searching for money and the applicant told them that he did not have any money. The men told the applicant that if he did not give them money in a week, he would be killed. The applicant claimed that a week later, about 15 different men came during the night and attacked his family. His mother gave them 100,000 taka and the men left, but said they would return. The applicant fled the village a week later. The applicant was not sure why the men targeted him, but stated that it was possible they found out his family’s farm was doing well, or that his brother handed out brochures to people in the village to vote for the BNP during the elections.

The delegate

1. The applicant attended an interview before the delegate on 8 September 2014[5], and a decision was made to refuse the application for a protection visa on 3 October 2014. The delegate made adverse credibility findings against the applicant and rejected the entirety of his claims[6].

   [5] CB 118

   [6] CB 117 -131

The Tribunal

1. On 30 October 2014, the applicant lodged an application with the Tribunal together with a copy of the delegate’s decision[7]. The applicant was invited to[8], and attended, a hearing before the Tribunal on 1 March 2016[9].

   [7] CB 132-137

   [8] CB 142-143

   [9] CB 146-149

2. In a decision dated 8 March 2016, the Tribunal affirmed the decision under review[10]. The Tribunal also made adverse credibility findings and rejected the entirety of the applicant’s claims[11].

   [10] CB 153-157

   [11] CB 158, [25]

3. The Tribunal found that the applicant had provided inconsistent and implausible evidence in relation to significant aspects of his claims. For example, whether there were three or four brothers during the two incidents when the men came to the house, whether he was beaten on the first or second occasion, whether his older brother was beaten at all, and his brother’s alleged activities with the BNP. The Tribunal had difficulty accepting that his brothers would run away, leaving his elderly mother to “deal with” the men[12].

   [12] CB 158, [24]

4. The Tribunal was not persuaded by the applicant’s explanations that the inconsistencies in his evidence were due to interpreting problems. The Tribunal found that the applicant’s evidence overall was vague and general and that he was unable to provide details about significant aspects of his claims such as when incidents occurred. While the Tribunal appreciated that the applicant was claiming that those events occurred some time ago, when the issue was considered with other matters of concern, the Tribunal formed the view that the lack of details raised doubts about the claims and the applicant’s credibility[13].

   [13] CB 158, [24]

5. The Tribunal rejected the entirety of the applicant’s claims of past harm and did not accept that his brother was ever involved in any activities relating to the BNP[14]. The Tribunal concluded that the applicant did not meet the criteria for the grant of a protection visa in s.36(2)(a) or s.36(2)(aa) of the Migration Act 1958 (Cth)[15].

   [14] CB 158, [25]

   [15] CB 159, [27]-[32]

The present proceedings

1. These proceedings began with a show cause application filed on 30 March 2016.  The applicant continues to rely upon that application.

2. There are five grounds in the application:

   1. The Administrative Appeals Tribunal officer erred in law to come to a decision dismissing my application not finding that the Department of Immigration and Border Protection did not consider that I was a victim of persecution for my political belief as an activist of Bangladesh Nationalist Party and also I was target of terrorist group Sharbahara Party prior to my departure from Bangladesh

   2. The Honorable Administrative Appeals Tribunal officer did not find that there was lack of procedural fairness in the decision of the Department of Immigration and Border Protection to consider that I was physically abused for my political belief and my life was at risk which forced me to leave Bangladesh for safety of my life.  I was not accepted by Tribunal as a credible witness and refused my application.

   3. The Administrative Appeals Tribunal Officer made error to find that the Department of Immigration and Border Protection failed to accept that the persecutions I experienced in Bangladesh and I shall be imprisoned and tortured if returned to Bangladesh.  The Tribunal refused my claim on the ground that I am not a credible witness for my claims though I presented all relevant documents and evidences in support of my claims before the Tribunal prior to hearing.

   4. The Administrative Appeal Tribunal officer erred in not finding that the DIBP erred in law amounting to jurisdictional error in finding that I do not have genuine fear of persecution for a [C]onvention reason and I do not meet the criteria set out in s.36(2) of Protection Visa.

   5. The Administrative Appeals Tribunal officer erred in not finding that the DIBP refused my application on the ground that I would face punishment would be completely politically motivated. (errors in original)

3. The applicant has not taken up the opportunity afforded to him by procedural orders made by a Registrar on 12 May 2016 to file and serve an amended application.  The application is supported by a short affidavit filed with it, which I have received. 

4. I also have before me as evidence, the Court book filed on 23 May 2016. 

5. Both the applicant and the Minister prepared pre-hearing written submissions in accordance with the Registrar’s orders. 

6. The applicant’s submissions traversed his personal history and his claims for protection.  He refers to statements made by his “case officer”, which may have been a reference to the Minister’s delegate.  The applicant asserts in his submissions that he told the truth to the Tribunal.  Unfortunately, however, those submissions do not assist in supporting the grounds of review advanced in his application.  As I explained to the applicant, those grounds indicate a misunderstanding of the Tribunal’s role.

7. The grounds assert errors by the Tribunal in not correcting errors, including breaches of procedural fairness, before the Minister’s delegate.  As I explained to the applicant, the Tribunal’s role is to review the visa application afresh and not to limit its consideration to questions of law.  I invited oral submissions from the applicant this afternoon.  He told me that he is still suffering and fearful and will be killed by Sharbahara political operatives should he return to Bangladesh. 

8. As I explained to him, that simply goes to the merits of the Tribunal decision.  The Minister’s submissions deal with the grounds as advanced by the applicant.  I agree with those submissions. 

Ground 1

1. Ground 1 of the application asserts that the Tribunal did not consider that the applicant was a “victim of persecution for my political belief as an activist of BNP.” This ground fails at a factual level. The applicant did not claim to be an activist of the BNP, rather he claimed that his brother was a BNP activist[16].  That claim was rejected by the Tribunal[17].  Further, the Tribunal rejected the applicant’s claim that he was a target of the Sharbahara Party in Banlgladesh[18].

   [16] CB 157, [21]

   [17] CB 159, [25]

   [18] CB 159, [25]

Ground 2

1. Ground 2 takes issue with the Tribunal’s adverse credibility findings. It is well settled that credibility is a factual determination for the Tribunal[19].

   [19] Re Minister for Immigration; ex parte Durairajasingham (2000) 168 ALR 407 at 423

Grounds 3 and 4

1. Grounds 3 and 4 simply takes issue with the Tribunal’s finding that the applicant did not meet s.36(2)(a) or s.36(2)(aa) and seeks impermissible merits review[20].

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

Ground 5

1. Ground 5 states that the applicant would face punishment that would be “politically motivated.” This is a bare assertion and does not allege any error, let alone jurisdictional error, on the part of the Tribunal.

2. Similarly, the applicant’s written submissions merely restate his claims for a protection visa and again seek impermissible merits review. The applicant’s submissions also take issue with the delegate’s decision, which the Court does not have jurisdiction to review[21].

   [21] Section 476(2)(a)

3. I conclude that the applicant is unable to demonstrate an arguable case of jurisdictional error by the Tribunal. 

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

5. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale.  The applicant claims impecuniosity, but as has been repeatedly stated, that is not a reason for the Court to refrain from making a costs order. 

6. 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.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date: 28 September 2016