Asa16 v Minister for Immigration - [2019] FCCA 689

FEDERAL CIRCUIT COURT OF AUSTRALIA

ASA16 v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 689

Catchwords:
MIGRATION – Migration Act 1958 (Cth) – application for a Protection visa – Administrative Appeals Tribunal affirms decision of Delegate not to grant to applicant – applicant claimed decision of Administrative Appeals Tribunal affected by jurisdictional error – no basis to claims of jurisdictional error – application for judicial review dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 46A, 424

Cases cited:

Applicant:

ASA16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 729 of 2016

Judgment of:

Judge Dowdy

Hearing date:

29 May 2018

Delivered at:

Sydney

Delivered on:

26 March 2019

REPRESENTATION

The Applicant appeared in person.

Counsel for the First Respondent:

Mr T. Galvin

Solicitors for the First Respondent:

Minter Ellison

THE ORDERS OF THE COURT ARE AS FOLLOWS:

The Application filed in this Court on 30 March 2016 and the Amended Application filed on 25 January 2017 are both dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 729 of 2016

ASA16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The Applicant is a male citizen of Bangladesh aged 41 years, having been born on 29 October 1977.
By Application filed in this Court on 30 March 2016 and Amended Application filed on 25 January 2017, he seeks to quash and have re-determined the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 5 March 2016 affirming the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 1 October 2014 refusing to grant to him a Protection (Class XA) (Subclass 866) visa (Protection visa).

Background

The Applicant arrived in Australia on 6 December 2012 as an unauthorised maritime arrival. On 26 April 2013, the Minister under s.46A(2) of the Migration Act 1958 (Cth) (the Act) lifted the bar so as to permit him to apply for…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] FCCA 689
Decision Date: 26 March 2019

CaseChat Overview and Summary

The applicant, Asa16, sought judicial review of a decision by the Administrative Appeals Tribunal (AAT) which affirmed the delegate's refusal to grant him a protection visa. The applicant claimed to fear returning to Bangladesh due to his family's support for the Bangladesh Nationalist Party (BNP) and outstanding debts to relatives.

The court was required to determine whether the AAT's decision was affected by jurisdictional error. This involved assessing whether the AAT had properly considered the applicant's claims regarding fear of persecution for political opinion and fear of harm from creditors, and whether its findings were supported by the evidence. The court also considered the relevant criteria for a protection visa, namely the Refugee Convention criterion and the complementary protection criterion, as outlined in section 36(2) of the Migration Act 1958 (Cth).

Dowdy J found no basis for the applicant's claims of jurisdictional error. The Tribunal had carefully considered the applicant's statutory declaration and evidence presented at the hearing. Crucially, the Tribunal noted the applicant's consistent assertion that he himself had not faced any problems in Bangladesh due to his or his family's political affiliations. The Tribunal also found the claims of threats to his family from the Awami League to be not credible, given their limited political involvement to voting. Furthermore, the Tribunal regarded the fear of harm from relatives over borrowed money as speculative and lacking objective foundation. Based on these findings, the Tribunal was not satisfied that the applicant met either the Refugee Convention criterion or the complementary protection criterion.

Consequently, the application for judicial review was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

At [4] – [5] of the Tribunal’s Decision Record (Decision Record) it recorded the Applicant’s claims as made in his Statutory Declaration. At [1] and [6] – [17] of its Decision Record the Tribunal recorded claims made by the Applicant at his interview with the Delegate, by his solicitor in a written submission dated 16 December 2015 (solicitor’s written submissions) and at the Tribunal hearing. At [18] the Tribunal recorded that at the hearing before it on 18 December 2015 the Applicant had confirmed that while he claimed that his family had problems after the 2008 election because they had supported the BNP, he himself had not faced any problems because he or his family supported the BNP. The Applicant repeated at the Tribunal hearing that he had not himself faced any problems, as further recorded at [25], [31] and [32]. From [18] – [31] of its Decision Record the Tribunal recorded its consideration and discussion of the Applicant’s claims with the Applicant at the Tribunal hearing and at [32] – [38] recorded its conclusions. The Tribunal’s conclusions may be summarised as follows:a)the case was unusual in that the Applicant had consistently said that he had not suffered problems in Bangladesh because of his own or his family’s support for the BNP. The Tribunal accepted that the Applicant’s family supported the BNP in the sense of voting for the BNP, like 23 million other people in Bangladesh in the 2008 election: see [32] – [33] of the Decision Record;b)DFAT had assessed “that supporters or members of political parties in Bangladesh are not at risk of being arrested or living in fear of political violence on a day to day basis due to their political affiliations”: see [33] of the Decision Record;c)on the basis of independent country information it did not find it “credible that the members of the [Applicant’s] family have been threatened, harassed or physically assaulted by people from the Awami League, given that on the evidence before me their political involvement is limited to voting for the BNP”: see [33] of the Decision Record;d)the Applicant’s claim that his relatives would physically harm him if he does not repay the money he borrowed from them appeared “to be entirely speculative and lacking in any objective foundation” and the Tribunal did not accept “on the evidence before me that there is a real chance that [the Applicant] will be physically harmed or otherwise persecuted by his relatives because of the money he owes to them if he returns to Bangladesh now or in the reasonably foreseeable future”: see [36] of the Decision Record; ande)recorded that the Applicant’s whole family and his wife and son remain in his village in Bangladesh, notwithstanding the Applicant’s claims that they had been having problems there: see [37] of the Decision Record. In the result the Tribunal was not satisfied that the Applicant satisfied either the Refugees Convention criterion or the complementary protection criterion and affirmed the decision of the Delegate not to grant the Protection visa to the Applicant.

Ratio Decidendi

Legal Principle Established

In general terms, the Applicant claimed to fear returning to Bangladesh because he and his family were supporters of the Bangladesh Nationalist Party (BNP) and because he had borrowed a large sum of money from relatives in Bangladesh in order to come to Australia and has not been able to repay them. In response to questions 42 to 48 of his Protection visa application form the Applicant attached a Statutory Declaration declared on 16 May 2013 (Statutory Declaration), which made the following claims: a)he comes from a poor family and moved to Dhaka in Bangladesh in 1998 in the hopes of earning a higher income to support his family, comprised of his wife and son, and he can only find work in low paying jobs;b)his parents and siblings remain in Bangladesh;c)in 2008, the Bangladesh Awami League (AL) came to power and he feared for his safety;d)he was unable to vote in the last election because he was not registered to vote in Dhaka;e)he fears voting or supporting a political party because of the risk of being persecuted by the opposing Government;f)his family are supporters of the BNP and voted for the BNP in the 2008 election and he fears that he will be imputed with the same political opinion as his family members;g)after the 2008 election his father and brothers were threatened by people from the AL because they did not support the AL;h)his family had trouble having documents certified and issued by the local village elder because of their political opinion;i)with a national election fast approaching in 2014 he feared that if he had remained in Bangladesh he would be harmed and could not provide for his family;j)he borrowed money from his relatives to fund his trip to Australia and if he returns to Bangladesh without paying them he fears they will physically harm him; k)if he returned to Bangladesh he would be seriously harmed and / or killed by the AL and its supporters because of his imputed political opinion of supporting the BNP;l)he would be harmed by the Government, police and Government supporters and the authorities would not protect him;m)if he returned to Bangladesh he would be subject to torture and cruel treatment by way of physical assault and shooting at the hands of the Government and physical assault by the relatives to whom he owes money; n)he feared being subject to degrading treatment by these relatives in the form of verbal abuse and threats; ando)he will not be safe in any part of Bangladesh and he can only live in his hometown and Dhaka as he cannot find work or the means to reside in any other part of Bangladesh. A convenient summary of the relevant grounds and criteria for the grant of the Protection visa in this proceeding can be found in the judgment of Charlesworth J in AWA15 v Minister for Immigration [2018] FCA 604 at [5] – [7] as follows:[5] The Minister is to grant a visa if satisfied that the visa applicant satisfies the relevant criteria. If the Minister is not so satisfied, he must refuse to grant the visa: s 65(1) of the Act. For the appellant to qualify for the grant of a protection visa it was necessary for the Minister to be satisfied that (among other things) the appellant fulfilled either the criterion in s 36(2)(a) of the Act (Refugee Criterion) or the criterion in s 36(2)(aa) of the Act (Complementary Protection Criterion).[6]The Refugee Criterion requires that the Minister be satisfied that the visa applicant is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention, as amended by the Refugees Protocol, namely a person who:... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.[7]Relevantly, the Complementary Protection Criterion requires that the visa applicant be a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because:... the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; ....