ARY16 v Minister for Immigration
[2018] FCCA 1226
•18 May 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ARY16 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1226 |
| Catchwords: PRACTICE & PROCEDURE – Leave sought to amend substantive application whether there was such merit in the proposed ground to warrant leave to amend in the interests of justice – no such merit in the proposed ground – leave to amend refused. |
| Legislation: Migration Act 1958 (Cth), s.476 |
| Cases cited: NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 |
| Applicant: | ARY16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 728 of 2016 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 8 March 2018 |
| Date of Last Submission: | 8 March 2018 |
| Delivered at: | Sydney |
| Delivered on: | 18 May 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr B Zipser by direct access |
| Solicitors for the Respondents: | Ms E Cheesman of Clayton Utz |
ORDERS
The application made on 8 March 2016 to amend the substantive application is refused.
The application made on 30 March 2016 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $6,825.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 728 of 2016
| ARY16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 30 March 2016 seeking review of the decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 3 March 2016 which affirmed the decision of the delegate of the Minister (“the delegate”) to refuse a protection visa to the applicant.
The evidence before the Court is a bundle of relevant documents filed and tendered by the Minister (“the Court Book” – “CB”, “RE1”).
Background
The applicant is a citizen of Bangladesh (CB 13). He arrived in Australia in 2013 as an “unauthorised” arrival (CB 14). He applied for the protection visa on 26 July 2013 (CB 1 to CB 43). He was assisted by a registered migration agent at this time (CB 38 to CB 40). The applicant’s claims to fear harm were initially contained in a Statutory Declaration attached to his protection visa application dated 26 July 2013 (CB 27 to CB 32).
The applicant claimed to fear harm on the basis of his political opinion. He claimed that “[s]ince about 1997 during [s]econdary [s]chool” he became involved in politics with the Bangladesh National Party (“BNP”), and volunteered as a public relations officer ([7] at CB 27).
In 2005, the BNP “lost its power” and in 2007, the applicant started to receive threats from members of the opposing Awami Leage (“AL”). The threats included the AL demanding that the applicant stop working for the BNP and instead work for the AL. Following the threats, the applicant claimed to have continued his political work for the BNP in private until 2009 ([8] at CB 27 to [10] at CB 28).
In 2009, the applicant claimed to have started to publicly undertake political activities for the BNP. He claimed to have suffered head injuries at a BNP protest, when AL supporters surrounded them and “beat [them] all very badly” ([12] at CB 28).
The applicant also claimed that in 2011, AL members tried to interfere with his family’s cultivation of their land, and that his father was approached by AL members “on about 7 occasions” and they told him to tell the applicant to stop his political activities with the BNP
([13] – [14] at CB 28).
In December 2012, the applicant attended a “BNP political meeting” close to his home. Since that time, the applicant claimed that the AL “started to monitor” the BNP more closely, and that after this meeting the applicant saw AL members outside the meeting as they were leaving ([15] at CB 28).
The applicant claimed that “[i]n about early January 2013” the AL “lodged a case against [him]” whereby he was “falsely accused” of being involved in an incident in December 2012, where a bus was set on fire, and the government had subsequently “accused” the BNP. The applicant claimed that AL members came to his family home and beat his father, and that “[o]ne night soon after” the AL again came to his family home and demanded a payment from his father. When his father could not pay, they beat him again ([17] – [20] at CB 29).
The applicant claimed that he “moved around and between different houses” to “try and stay safe”, but the AL found him at one of his friend’s places, where they broke down the door, took the applicant out into the street and “beat [him] severely”. He claimed to have been stabbed, and then after the AL members left he was transported by a man to the hospital for treatment ([20] – [22] at CB 29). He claimed to have left Bangladesh in February 2013 through Dhaka airport using a “false passport” (CB 22).
The delegate refused the application for the visa on 8 October 2014 (CB 54 to CB 74). The applicant applied for review to the Tribunal on 27 October 2014 (CB 75 to CB 76). He was assisted by the same firm of registered migration agents (CB 76).
The applicant’s representative provided another Statutory Declaration (dated 30 October 2014) in which the applicant sought to clarify aspects of his claims to protection (and addressing the delegate’s credibility concerns) on 31 October 2014, and written submissions to the Tribunal by email on 3 November 2014 (CB 80 to CB 82 and CB 83 to CB 88). The applicant’s representative provided further documents to the Tribunal by email on 10 February 2016 (CB 106 to CB 110).
The applicant was invited to, and attended, a rescheduled hearing before the Tribunal on 16 February 2016 (CB 89 to CB 100). Following the hearing, on 22 February 2016, the applicant provided further supporting documents to the Tribunal (CB 112 to CB 125). The Tribunal affirmed the delegate’s decision on 3 March 2016 (CB 126 to CB 145).
The Tribunal had concerns with the applicant’s credibility on nine “core” issues ([21] at CB 138).
First, the Tribunal considered that the applicant’s claim that a criminal case had been made against him relating to a bus that had been set on fire, was “not plausible”. This was in light of his “own evidence that he was in hospital for a week in his local area, while he was supposedly wanted by the authorities” ([22] at CB 138). The Tribunal had a number of concerns with the applicant’s evidence concerning his claim to have been injured by AL members in 2013, and that he was wanted by authorities ([22] at CB 138 to [28] at CB 139).
Second, the Tribunal found that the applicant did not provide “consistent evidence” surrounding the injuries he claimed to have suffered from the attack from the AL members in 2013 ([29] at CB139).
Third, the applicant also provided “inconsistent accounts” as to the circumstances of his claimed stabbing in 2013, in that he had previously claimed to have been kidnapped but later “retracted” that claim ([30] at CB 139 to [34] at CB 140).
Fourth, the applicant also provided “inconsistent evidence” as to the “timing of the BNP meeting in relation to the burning of the bus”
([35] – [36] at CB 140).
Fifth, the applicant had also “not been consistent in terms of the level and profile of his political involvement” ([37] at CB 140 to CB 141 to [39] at CB 141).
Sixth, the Tribunal did not accept the applicant’s explanation for failing to name the BNP candidate for the 2008 election, in circumstances where he had claimed to be “intimately involved with the relevant BNP branch” ([40] – [41] at CB 141).
Seventh, the applicant was also unable to provide the Tribunal with any “meaningful detail” about the BNP’s policies during the 2008 election ([42] at CB 141 to [43] at CB 141 to CB 142).
Eighth, the statement from the Mayor of Kalkini of May 2013, was at odds with the applicant’s claims to have been an active member of the BNP or his claim that there was an “outstanding criminal case against him” ([44] – [49] at CB 142).
Ninth, documentary evidence provided by the applicant to the Tribunal was inconsistent with his claims to fear harm from the BNP on the basis that he had “leaked information” to the AL ([50] at CB 142 to [54] at CB 143).
The Tribunal considered that the “nine areas of concern raise[d] issues ranging from moderate significance to issues central to the applicant’s claims” ([55] at CB 143). The Tribunal also gave little weight to documents provided by the applicant following the hearing, as it was “puzzled” as to why the documents had not been provided earlier and also noted that document fraud is prevalent in Bangladesh ([57] at CB 143 to CB 144 to [58] at CB 144).
Cumulatively, the “impact of the deficiencies in the evidence” were such that the Tribunal was not satisfied as to “any substantive aspect of the applicant’s claims, despite the documents provided” ([59] at CB 144). The Tribunal found that the applicant did not meet either criteria for the grant of a protection visa ([69] – [70] at CB 145).
The Application to the Court
The applicant made his application to the Court on 30 March 2016. The grounds were in general terms as follows.
“1. The Second Respondent miscalculated the claims and an error in deciding the fate of the application;
2. The Second Respondent’s made the decision without any basis or information and has not considered the current situation prevails in Bangladesh.
3. The Second Respondent made a findings which were based on misconception, illogical and without any authorities.”
[Errors in original.]
Before the Court
By orders made by consent, by a Registrar of the Court on 12 May 2016, the applicant was given the opportunity to file any amended application and any further evidence by way of affidavit. The applicant filed no further documents in the proceedings at this time. By orders made by a Registrar of the Court on 6 October 2016, the applicant was given further time to file an amended application (by 21 October 2016). The parties were also given the opportunity to file written submissions and the matter was set down for final hearing. The Minister filed written submissions on 1 March 2018.
One clear day before the final hearing before the Court, the applicant filed written submissions. These were drafted by counsel. The submissions gave notice that the applicant would seek leave at the final hearing to rely on an amended application which was attached to the written submissions.
Consideration
At the final hearing on 8 March 2018, the applicant was represented by counsel. The Minister was represented by a solicitor.
The applicant sought leave to amend his application. The Minister opposed the grant of such leave.
The relevant elements for seeking leave to amend at a late stage include whether there is any reasonable explanation for the delay and whether there is such merit in the proposed grounds such as to warrant leave in the interests of the administration of justice.
The applicant provided no evidence whatsoever to explain why he waited for nearly two years before seeking leave to amend his application. He provided only one clear day’s notice to the Minister.
However, the Minister indicated through his solicitor that despite opposing the granting of leave to amend the application to the applicant, he was content for the hearing of the application to amend to proceed on the basis of the merits, or otherwise, of the proposed ground.
In short therefore, the immediate issue before the Court is whether the proposed ground is of such merit that it warrants the grant of leave to amend in the interests of justice.
The proposed ground is in the following terms:
“The applicant claimed that on 17 February 2013 he departed Bangladesh through Dhaka airport using a false passport (CB 22) This is likely to be an offence in Bangladesh, for example a contravention of s7(3) of the Emigration Ordinance Act 1982. In the circumstances, a question in considering the applicant’s claim for a protection visa is whether the applicant would suffer persecution or significant harm if required to return to Bangladesh. The Tribunal failed to consider these questions. This failure involved jurisdictional error.”
Before the Court, the applicant’s argument was that the applicant gave evidence to the Tribunal that he departed Bangladesh using a false passport. The argument put before the Court was that such conduct would “likely” be an offence in Bangladesh under s.7(3) of the “Emmigration Ordinance Act 1982 (Bangladesh)”.
In written submissions, the applicant described the applicant’s evidence regarding the false passport as a claim to fear harm. He relied on the authority NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 (“NABE (No 2)”) (at [55] – [63]) for the proposition that the Tribunal’s error was that it failed to consider this claim.
In oral submissions the applicant acknowledged that he had advanced no such express claim before the Tribunal. Further, that the applicant did not make a “substantial, clearly articulated argument” in this regard (in the sense described in Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088 (“Dranichnikov”)).
The applicant’s argument was that the reference by him to having left Bangladesh on a false passport, was sufficient for the Tribunal to be required to consider whether he would face harm for this reason on return to Bangladesh.
The applicant’s proposed ground and submissions in support also directed attention to [67] – [68] (at CB 145) of the Tribunal’s decision record, and in particular, the phrase “or for any other reason” as follows (see [23] of the applicant’s written submissions):
“In summary, in terms of the Refugee Convention criterion, the Tribunal is not satisfied that there is a well founded fear of the applicant being persecuted for a Convention reason for any of the reasons claimed, or for any other reason.
In summary, in terms of the complementary protection criterion, the Tribunal is not satisfied that there are substantial grounds for believing that…there is a real risk [the applicant] will suffer significant harm for any of the reasons claim, or for any other reason.”
[Emphasis in applicant’s written submissions.]
The argument was that in relation to both the criteria for the grant of a protection visa, the Tribunal “embarked” on a consideration of whether there was a real risk of harm “for any other reason”. That is, beyond the reasons claimed by the applicant.
In this context, I ultimately understood the allegation of error to be that the Tribunal did not consider whether the applicant might be persecuted or punished for departing Bangladesh using a false passport.
The applicant’s proposed ground lacks such merit as to require the grant of leave to amend the grounds of the application.
First, as the applicant submitted before the Court, no such claim regarding the false passport was expressly made either before the Tribunal, or at any time during the processing of the application for the protection visa.
Second, the applicant submitted that his ground was at the “very grey end of the spectrum” (his counsel’s description). I understood the “spectrum” to be a reference to claims not expressly made, but arising on the circumstances presented.
With respect to the applicant’s counsel, on the evidence before the Court, the applicant’s proposed ground cannot be said, or described, as arising from a “grey area” or even a “very grey area”.
As was made clear in NABE (No 2) (at [68]):
“Although such a claim might have been seen as arising on the material before the Tribunal it did not represent, in any way, ‘a substantial clearly articulated argument relying upon established facts’ in the sense in which that term was used in Dranichnikov. A judgment that the Tribunal has failed to consider a claim not expressly advanced is, as already indicated in these reasons, not lightly to be made. The claim must emerge clearly from the materials before the Tribunal. In our opinion the judgment that the Tribunal, by reason of the error it made about the appellant’s involvement with PLOTE, failed to consider an unexpressed claim of want of effective State protection against persecution by PLOTE, is not open having regard to the thresholds required for such a judgment by the authorities to which we have referred. This case does demonstrate an unfortunate factual error which, as Tamberlin J found, contributed to the Tribunal’s adverse finding as to credibility and could have affected the outcome of the review by the Tribunal. It did not, however, constitute jurisdictional error in the sense earlier discussed. It was, as the members of the Full Court found on the first occasion, an error of fact within jurisdiction.”
[Emphasis added.]
I should note that there was no submission in the current case of any such factual error as found in NABE (No 2).
In any event, the applicant’s “claim” as described now, does not clearly arise from the materials before the Tribunal.
There was no reference whatsoever by the applicant, his adviser or elsewhere in the materials before the Tribunal, to any reference to the “Emigration Ordinance Act 1982 (Bangladesh)”.
The reference to the false passport contained in the materials before the Tribunal is set out at Court Book page 22. The context in which it is raised makes clear the lack of merit in the applicant’s proposed ground.
The document at Court Book page 22 is part of the application form lodged by the applicant for the protection visa. Question 52 of that form asks, “[h]ow did you leave?” [it is, in context, with reference to the country of claimed persecution]. The applicant’s answer was, “[h]older of a false passport arranged by smuggler” (CB 22.5).
There is nothing here, or anywhere else in the presentation of the applicant’s claims, to say that the applicant ever contended that he feared harm for the particular reason of having left Bangladesh on a false passport. Further, and of relevance to the applicant’s proposed ground, there is nothing in the material to even indicate that to have been the case (Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 at [45]).
In this light, I note that the same application form asked the specific questions as to why the applicant left the country of claimed persecution, and what he thinks would happen to him on return to that country (CB 19 to CB 20).
The applicant directed attention to the accompanying “Statutory Declaration” (at CB 27 to CB 32). The Statutory Declaration was prepared with the assistance of a registered migration agent, who was also a solicitor (CB 30 and CB 38 to CB 40).
There is nothing in that document from which it may be said that the claim now put by the applicant’s counsel before the Court, emerges “clearly” (NABE (No 2) at [68] and Dranichnikov).
Nor does any such claim emerge from the applicant’s interview with the delegate, or the hearing before the Tribunal.
Third, the applicant’s second argument in support of the proposed ground (see [40] above) sought to draw on what the High Court said in Minister for Immigration and Multicultural Affairs [2001] HCA 30; (2001) 206 CLR 323; (2001) 62 ALD 225 (at [82]) as to what may constitute jurisdictional error.
In short, the submission was that the Tribunal fell into jurisdictional error (with reference to its reasons at [67] - [68] (at CB 145) of its decision record), because it overlooked “relevant” material.
The matter of the false passport, as put by the applicant in his protection visa application form, in context, was not put by him as a matter relevant to his claims to fear harm.
Nor, with reference to the Tribunal’s reasoning, can it be said that the Tribunal “overlooked relevant material”. To be relevant in that sense, the “material overlooked” needed to be relevant to a claim to fear harm. The applicant made no such claim either expressly, or “clearly” arising from the materials presented.
It must be said, it is not clear what the Tribunal meant by the use of the phrase “or for any other reason” as it appears at [67] and [68] (at CB 145) of its decision record. As set out above, the Tribunal’s obligation is to consider (in the requisite sense) claims expressly made or clearly arising in the circumstances, or a substantial, clearly articulated argument relying on established facts. That is, claims or an argument made by an applicant as to why he says he fears harm if he were to return to his home country.
At both [67] and [68] (at CB 145) of the Tribunal’s decision record, having found that the applicant did not satisfy either of the criteria for the grant of the protection visa on the basis of having considered all of the claims expressly made or clearly arising, the Tribunal satisfied the obligation in relation to the exercise of its jurisdiction by considering the actual reasons given by the applicant for his claimed fear of harm. The Tribunal was not required by the statute, or otherwise, to consider “any other reasons” (whatever that means) unless such reason was expressly made or clearly arising.
Even if the Tribunal did state that it looked “for any other reason” for the claimed fear of harm, and overlooked the “false passport” reference, no jurisdictional error is revealed in circumstances where the claim was not expressly made or clearly arising. The “false passport” was not such a “claim”. Nor was it part of any substantial, clearly articulated argument relying upon established facts.
The applicant’s proposed ground lacks sufficient merit to argue in favour of the grant of leave to amend the substantive application. Leave to amend that application is therefore refused.
That leaves the grounds of the application as originally put. The applicant’s counsel (after a short adjournment to consider the position) indicated that the grounds were not abandoned. However, he also stated that no submissions would be made in support of, or in explanation of, those grounds (see [26] above).
In this light, what remains is that the grounds of the application, which are broad and general in terms and are without particulars, remain unexplained. The applicant has elected to leave his grounds in this state, notwithstanding he was represented by counsel at the hearing.
In my view, given the lack of prosecution by the applicant’s counsel of the applicant’s grounds, and in the context of the generalised nature of the terms of those grounds, that would be sufficient to dismiss the substantive application. However, and in any event, none of the grounds, even when looked at “flexibly”, have merit, let alone reveal jurisdictional error in the Tribunal’s decision.
Ground one can only be understood, in the circumstances, as an expression of disagreement with the Tribunal’s conclusion. There is nothing in the evidence before the Court to say that the Tribunal misunderstood, or did not consider, each of the applicant’s claims. Further, the Tribunal’s findings which informed its decision were reasonably open to it for the reasons that the Tribunal gave. Ground one is not made out.
There are two elements to ground two.
One, that the Tribunal made its decision “without any basis or information”. Two, that the Tribunal did not consider the “current situation” in Bangladesh.
The applicant’s ground two ignores that there was a basis for the Tribunal’s decision. That is, an evidentiary basis. Namely, its disbelief of the applicant’s own evidence given to the Tribunal. It was reasonably open to the Tribunal to find that the applicant’s evidence was inconsistent, and his explanations were implausible.
The Tribunal’s conclusion on credibility and the findings that informed it, were all reasonably open to the Tribunal on what was before it. As the Minister submits, these findings were based on rational grounds, arrived at after consideration of the matters that were logically probative of the matter of the applicant’s credibility (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407; (2000) 74 ALJR 405, Kopalapillai v Minister for Immigration and Multicultural Affairs [1998] FCA 1126; (1998) 86 FCR 547 and CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 70 AAR 413 and see [22] of the Minister’s written submissions).
In relation to country information, it is clear that the Tribunal did identify and refer to current country information about the situation in Bangladesh. Relevantly, this was the risk of harm faced by the BNP members (see [62] at CB 144). The Tribunal found that the applicant did not face a real chance of relevant harm, because it also found that the applicant had not had any past BNP involvement, or that he had been the subject of, or would be imputed with, an adverse political profile. The Tribunal also found that the applicant would not be involved with the BNP on his return to Bangladesh. In this light, there was no reason for the Tribunal to consider the “current situation” in Bangladesh, as the ground asserts. Ground two does not reveal any jurisdictional error and is not made out.
In ground three, the applicant asserts that the Tribunal’s decision was misconceived and illogical and that the Tribunal’s decision was made “without any authorities”. There is nothing in the Tribunal’s reasoning to indicate, let alone make out, that the Tribunal’s decision was illogical, or for that matter, irrational or unreasonable (Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611, Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332; (2013) 139 ALD 181, Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437; (2014) 308 ALR 280, ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; (2016) 250 FCR 109; (2016) 154 ALD 221 and CQG15).
As to what the applicant meant by the use of the word “misconception”, that remained unexplained. In the circumstances, it would appear that this is just another expression of grievance with the Tribunal’s conclusion. I agree with the Minister that the Tribunal’s decision was not illogical, and was reasonable in the sense explained by the relevant authorities.
Conclusion
The grounds of the application are not made out. It is appropriate to make an order dismissing the application. I will therefore make two orders. One, that leave to amend the application is refused and two, the application be dismissed.
I certify that the preceding seventy-seven (77) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Date: 18 May 2018
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