ASM16 v Minister for Immigration

[2016] FCCA 1799

FEDERAL CIRCUIT COURT OF AUSTRALIA

ASM16 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1799

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Protection (Class XA) visa – application for extension of time – real chance test – whether there is an adequate explanation for delay – whether there is an arguable case – whether the Tribunal erred in making adverse findings against the applicant – whether the Tribunal denied the applicant procedural fairness – no arguable jurisdictional error identified – application for extension of time dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 476, 477

Cases cited:
Spencer v Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118

Applicant: ASM16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 744 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 A Wong
Mills Oakley Lawyers

ORDERS

1. The application for an extension of time under s.477 of the Migration Act 1958 1958 (Cth) is dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the amount of $3,416.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 744 of 2016

ASM16

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 in respect of a decision of the Tribunal made on 22 February 2016 affirming the decision of the delegate not to grant the applicant a Protection (Class XA) visa.  The applicant was found to be a citizen of Bangladesh and his claims were assessed against that country. 

2. In summary, the applicant claimed to fear harm by reason of his religion and being perceived to be an atheist, by reason of political opinion, holding an opinion against the party passively or actively promoting Islam as the State religion of Bangladesh including the Bangladesh Nationalist Party and the Jamaat-e-Islami.  The applicant also feared being attributed with a political opinion as a supporter of the Shahbag movement in Bangladesh, holding a political opinion supporting the International War Crimes Tribunal to punish war crimes and a political opinion by reason of bloggers expressing strong opinion against Islamist fundamentalists.

3. The applicant’s representative also identified the social groups in respect of which the applicant was alleged to fear persecution, the first being a Muslim male perceived as an apostate and the second being the particular social group of secular bloggers in Bangladesh.

4. The applicant arrived in Australia on 9 May 2010 on a subclass TU 573 visa that was granted on 29 April 2010. The applicant’s subclass TU 573 visa ceased on 1 August 2013. The applicant was then granted a bridging visa which ceased on 31 December 2013. The applicant remained an unlawful non-citizen from 1 January 2014 until 2 March 2014.

5. The applicant lodged an application for protection on 27 February 2014.  The delegate referred to the applicant’s claims of why he feared harm which included a reference to the fact he had expressed his support for the Shahbag movement through posts on blogs and Facebook and alleged, as a result, he was threatened with death or physical harm.

6. The delegate records asking the applicant the name of his Facebook group and the applicant responded that the name of the Facebook group was Bangladesh Revolution (BR).  The delegate records that the applicant was further asked when the Facebook group was established and when he became a member of the Facebook group and then it records that the applicant responded that the Facebook group was established in February 2013 and that he was one of the founding members.  The delegate records that the applicant says he claimed that he was one of the administrators of the Facebook group which was based in Australia.  The delegate was not satisfied that the applicant has a real chance of persecution for a Refugee Convention reason and found that the applicant’s fear was not well founded.

7. The delegate was not satisfied that there were substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to the receiving country, there is a real risk that he would suffer significant harm. 

8. Following the delegate’s decision delivered on 15 September 2014, the applicant lodged an application for review on 18 September 2014.  The applicant was invited to attend a hearing by letter dated 30 July 2015 to take place on 1 September 2015.  The applicant attended on that date to give evidence and present arguments and was represented by his registered migration agent.  Following the hearing, the applicant’s registered migration agent sent a submission dated 13 September 2015 summarising the applicant’s fears as well as advancing further submissions in relation to the applicant’s claims. 

9. Those submissions were specifically referred to by the Tribunal in its analysis of the applicant’s claims and evidence. Relevantly, the Tribunal identified that the applicant’s circumstances became difficult after the cancellation of his student visa and the Tribunal made express reference to the applicant’s claim that he was depressed and had apparently been referred to a psychiatrist for assessment and treatment.  The Tribunal expressly found that the applicant’s capacity to give evidence did not seem affected and that he was responsive, coherent and articulate.  In referring to the applicant’s claims, the Tribunal made a reference to the applicant being one of three people who had set up a Facebook page to coordinate Shahbag support groups in New South Wales and the Australian Capital Territory. 

10. The Tribunal’s reference to the setting up of the Facebook page erroneously says February 2014.  It is apparent from the Tribunal’s reasons at para.64, as well as the context in which there was an error as to the date, that the Tribunal correctly understood the applicant’s claim arose from blogging that commenced in 2013.  Immediately following the erroneous reference to 2014 there was a reference to protests being organised in 2013. 

11. The Tribunal did not accept that the applicant faced a real chance of harm in Bangladesh because of his particular personal circumstances including, but not limited to, the comments he has received on Facebook or warnings that he claims were made to his father in respect of his activities.  The Tribunal did not accept the applicant’s father received warnings that the applicant should stop his activities and explained that the Tribunal’s view was that those claims were generalised, not particularised in any way and not corroborated.

12. The Tribunal found on the available information that the applicant did not have a well-founded fear of persecution for reason of his political opinion and it was in those circumstances that the Tribunal found that the applicant did not have a well-founded fear.  The Tribunal addressed the social groups in respect of the applicant’s claimed fear, as had been identified in the submissions of the applicant’s representative and, relevantly, did not accept that the applicant had a well-founded fear of persecution on account of being perceived as an apostate either because of his support for the Shahbag movement or otherwise.  The Tribunal made reference to the applicant facing harm by reason of being a blogger and did not accept that the applicant had a well-founded fear of persecution in Bangladesh on account of being a blogger. 

13. The Tribunal found that it was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason in Bangladesh now or in the reasonably foreseeable future and the Tribunal was not satisfied the applicant was a refugee under s.36(2)(a) of the Act. The Tribunal found that it was not satisfied there were substantial grounds to believe that as a necessary and foreseeable consequence of the applicant being removed from Australia to Bangladesh, there was a real risk that he would suffer significant harm in terms of s.36(2)(aa) of the Act. It was in those circumstances that the Tribunal affirmed the decision of the delegate.

14. The applicant lodged the application for relief in this Court two days outside the time required under s.477. Accordingly, the applicant requires an extension of time under s.477. At the commencement of the hearing, the Court explained to the applicant that an extension of time under s.477 requires, first, a satisfactory explanation for the delay and, secondly, a sufficiently arguable case to warrant an extension of time in the interests of the administration of justice. The Court explained to the applicant that a sufficiently arguable case required a reasonable argument that the Tribunal’s decision was affected by relevant legal error. The Court explained that the relevant legal error had to be either an excess of statutory power or a denial of procedural fairness to the applicant.

15. The Court explained that, in summary, this meant the Court was determining whether there is a reasonable argument that the Tribunal’s decision was unlawful or was unfair.  The Court explained that if it was satisfied that there was a satisfactory explanation for the delay and a sufficient argument, the matter would be fixed for hearing on another occasion. The Court explained that if not satisfied there is a satisfactory explanation for the delay and a sufficient argument as to error by the Tribunal, the application would be dismissed. The applicant confirmed he understood what had been explained by the Court. The Court also 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 he understood what had been explained by the Court.

16. From the bar table, the applicant explained that the delay in his application was due to having attended the registry and being told that because of the holiday he could have more time. The applicant also explained that he had not had sufficient funds to obtain a lawyer and that he also was not able to fully comprehend the issues arising from the Tribunal’s decision. The applicant gave the explanation from the bar table. There was no request for the applicant to give sworn evidence or to cross-examine the applicant. I accept the applicant’s explanations for the delay. The delay was only two days and the real issue in the present case is whether there is a sufficiently arguable case to warrant an extension of time in the interests of the administration of justice. 

17. On 12 May 2016 a Registrar of the Court made orders providing the applicant with an opportunity to file an amended application, affidavit evidence and submissions. No such documents were filed.

18. The grounds of the application are as follows:

    1. 56 of the decision, the Tribunal said that my father did not received the warnings. I believe this is an error.

    2. In number 64 Tribunal (…) that there was no relevant translations have been provided. I believe there were a number of documents about the matter. And, as I was in depressions according to the number of 39 I was not able to provide all off the documents.

    3. 49, 50, 51 , There is a big error that I was one of three in February 2014 but I was doing that from 2013 as mentioned there.

    4. I strongly believe that the result shown in 74, 76, 77, and in the conclusion, according to the law I am not qualified for protection is an error of Tribunal.

19. In relation to ground 1 the applicant took issue with the adverse finding made by the Tribunal as to warnings he had received from his father.  The adverse finding by the Tribunal identified a cogent basis for that adverse finding and cannot be said to be unreasonable.  The adverse findings were open on the evidence before the Tribunal and in substance ground 1 is an impermissible challenge to the merits of the matter and does not identify any arguable ground of jurisdictional error. 

20. In relation to ground 2 the applicant identified the erroneous date in para.50 as to when he commenced his Facebook page.  The correct date was clearly identified in para.64.  The error in para.50 is no more than an error in fact-finding and does not identify any arguable jurisdictional error.  The applicant sought to take issue with the Tribunal’s reference to there having been no translations provided in relation to the applicant’s Facebook posts. 

21. Relevantly the Tribunal accepted that those posts should be considered as expressing political opinion. No arguable jurisdictional error is identified by ground 2. To the extent that ground 2 refers to the applicant being depressed and not being able to provide all of the documents, the applicant had a representative and after the hearing before the Tribunal further material was provided to the Tribunal.  No request was made for any further adjournment or any further opportunity to provide additional documents. 

22. Ground 3 raises a challenge to the Tribunal’s findings and in particular raises the erroneous reference to February 2014. As already indicated, that erroneous reference was not one that gives rise to any arguable jurisdictional error. It is apparent from the Tribunal’s reasons in paras.51 and 64 that the Tribunal correctly understood the Facebook activities of the applicant as having commenced in 2013.

23. Issue was taken by the applicant with the reference to groups by the Tribunal.  That is an issue that was raised by the applicant as is apparent from the material identified in the delegate’s decision as well as in the applicant’s legal representative’s submission dated 13 September 2015.  Ground 3 does not identify any arguable jurisdictional error. 

24. Ground 4 seeks to cavil with the adverse findings made by the Tribunal. Those adverse findings were open on the material before the Tribunal. Ground 4 fails to identify any arguable jurisdictional error. 

25. From the bar table the applicant raised the fact that he had been suffering from depression and anxiety. The Tribunal clearly took into account the applicant’s evidence that he was depressed and the finding by the Tribunal that he was able to meaningfully participate in the hearing was open on the material before the Tribunal. I am satisfied that the applicant had a genuine hearing and that the Tribunal complied with its statutory obligations. Nothing said by the applicant in relation to him suffering depression identified any arguable jurisdictional error. 

26. The applicant also made reference to his lawyer not providing documents that the applicant wished to have provided and difficulties in his communication with his lawyer.  Neither of those are matters that give rise to any jurisdictional error in the present case.  It is apparent that the applicant had an opportunity post the hearing to provide further material and that his legal representative did so.  No arguable jurisdictional error arises from what the applicant said were his difficulties with his lawyer. 

27. The applicant went through the Tribunal’s decision identifying relevantly paras.49, 50, 51, 56, 60, 64, 68, 69, 70 and 77.  The applicant sought to take issue with the adverse findings made by the Tribunal.  This Court does not have power to make fresh findings of fact.  This Court’s jurisdiction is confined to determining whether the Tribunal’s decision is affected by legal error. 

28. The adverse findings to which the applicant referred were open on the material before the Tribunal and nothing said by the applicant from the bar table identified any arguable jurisdictional error. I take into account the principles and caution identified in Spencer v Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 at [24]-[25] and [59]-[60]. In the present case I have accepted the applicant’s explanation for delay and the question of whether there is a sufficiently arguable case on the merits is a low threshold for the applicant to meet.

29. However, I am clearly satisfied that there is no arguable case of jurisdictional error identified in the application or anything said by the applicant from the bar table. I am not satisfied that the application has sufficient merits to warrant an extension of time in the interests of the administration of justice. 

30. The application for an extension of time under s.477 of the Migration Act 1958 is dismissed. 

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 26 July 2016