ATJ16 v Minister for Immigration and Border Protection
[2016] FCA 1421
•29 November 2016
FEDERAL COURT OF AUSTRALIA
ATJ16 v Minister for Immigration and Border Protection [2016] FCA 1421
Appeal from: Application for leave to appeal: ATJ16 v Minister for Immigration & Anor [2016] FCCA 1879 File number: NSD 1237 of 2016 Judge: BROMWICH J Date of judgment: 29 November 2016 Legislation: Federal Circuit Court Rules 2001 (Cth), r 44.12
Federal Court of Australia Act 1976 (Cth), s 24(1A)
Federal Court Rules 2011 (Cth), r 35.11(a)
Migration Act 1958 (Cth), ss 36(2)(a), 36(2)(aa)
Cases cited: Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397
Spencer v Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118
Date of hearing: 15 November 2016 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: No Catchwords Number of paragraphs: 34 Counsel for the Applicant: The Applicant appeared in person Solicitor for the First Respondent: Ms N Johnson, Mills Oakley Counsel for the Second Respondent: The Second Respondent filed a submitting notice save as to costs ORDERS
NSD 1237 of 2016 BETWEEN: ATJ16
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
BROMWICH J
DATE OF ORDER:
29 NOVEMBER 2016
THE COURT ORDERS THAT:
1.The application for leave to appeal be dismissed.
2.The applicant pay the respondents’ costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
BROMWICH J:
This is an application for leave to appeal from orders made by a judge of the Federal Circuit Court of Australia on 22 July 2016, dismissing an application for review to that Court.
The application for review before the Federal Circuit Court concerned a decision of the Administrative Appeals Tribunal to affirm a decision of a delegate of the first respondent, the Minister for Immigration and Border Protection, to refuse the grant of a protection visa to the applicant. The application for review was dismissed under r 44.12 of the Federal Circuit Court Rules 2001 (Cth) upon the grounds that the application failed to disclose any arguable jurisdictional error. It is not in doubt that the dismissal of the application for review by the primary judge was an interlocutory judgment requiring leave to appeal.
For the reasons that follow, leave to appeal must be refused and the application dismissed with costs.
Leave to appeal considerations
While the discretion to grant leave to appeal pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (Cth) and the corresponding rule for bringing such an application, being r 35.11(a) of the Federal Court Rules 2011 (Cth) is unfettered, the legislature has evinced a policy against the bringing of interlocutory appeals except where the Court, acting judicially, finds reason to grant leave. Generally speaking, a “tight rein” should be kept on interlocutory decisions on a point of practice. However, leave will more readily be granted on an interlocutory decision determining a substantive right, as in this case: see Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 (Decor v Dart) at 399-400.
The guidance to the exercise of discretion to grant leave to appeal approved in Decor v Dart is cast in the form of two inter-related tests that bear on each other. The first test is whether in all the circumstances the decision is attended with sufficient doubt to warrant it being reconsidered on appeal. The second test is whether substantial injustice would result if leave were refused, supposing the impugned decision to be wrong. The correctness of those tests is not in doubt. There will continue to be cases raising special considerations and, accordingly, a court should not regard its hands as tied by these tests. No special consideration has been suggested as applying to this case and none is apparent.
Before the delegate and Tribunal
The applicant, a male citizen of Bangladesh, applied for a protection visa on 23 May 2013. The delegate refused to grant the visa on 11 August 2014.
On 25 August 2014, the applicant applied to the Tribunal for a review of the delegate’s decision.
The Tribunal considered the applicant’s written reasons for claiming protection that were before the delegate, further written submissions provided by the applicant’s representative and evidence given at the hearing before the Tribunal on 17 December 2015 at which the applicant was assisted by an interpreter and was represented by a registered migration agent who attended the hearing by telephone.
On 6 March 2016, the Tribunal affirmed the decision of the delegate to refuse the grant of a protection visa. The essential reason for doing so was that the sole basis for the claim for a protection visa arose from a relationship the applicant claimed to have had with a girlfriend in Bangladesh. The applicant claimed that:
(1)he was from a poor family and his girlfriend’s family was very wealthy and did not approve of the relationship;
(2)threats were made by his girlfriend’s family to his family to prevent the relationship;
(3)his girlfriend was forced to marry another man against her will and the day after her wedding she committed suicide;
(4)her suicide had brought shame to her family and that to restore their honour the only thing they could do was kill the applicant because he was the person they blamed for what had happened;
(5)he was repeatedly searched for by his girlfriend’s family and that because her family were wealthy they could easily bribe local police; and
(6)his girlfriend’s family caused charges to be brought against him.
The Tribunal noted that the delegate refused to grant the applicant a protection visa because the delegate found the applicant’s claim to fear harm stemming from his relationship with his girlfriend was not credible.
The Tribunal’s reasons go into some detail about the discussion the Tribunal had with the applicant at the hearing about the nature of his asserted relationship with his girlfriend. The reasons record that the Tribunal raised concerns that the applicant claimed to have spent time with his girlfriend over a six or seven year period, yet was unable to provide sufficient details about her and the reasons why he continued the relationship with her and risked the displeasure of his family and her family. The Tribunal found the applicant’s oral evidence about his girlfriend and his relationship with her and the plans that they had made together very limited and superficial, lacking the depth of detail and specificity that would be expected in the circumstances. The Tribunal also raised concerns about inconsistencies in the way in which the applicant described his contact with his girlfriend.
The Tribunal raised a further concern that the applicant failed to mention a case being brought against him in his oral evidence and was not persuaded by the applicant’s response to the effect that he did not know he had to mention this because he did not realise it was important. The Tribunal’s reasons state that the applicant appeared very vague about the concept of police charges, yet his statutory declaration made specific claims, concluding that the difference between the applicant’s oral evidence and his statutory declaration reflected poorly on his credibility and on the reliability of his evidence.
The Tribunal found that the applicant was not a witness of truth and in particular was not satisfied that the applicant had told the truth about being in a relationship with his supposed girlfriend. The Tribunal did not accept that any such relationship had existed, that her family had objected to that relationship and threatened the applicant and his family, that the girlfriend was married to another person against her will and then committed suicide, or that her family then blamed the applicant for their shame and threatened to kill him. In short, the applicant was comprehensively disbelieved on the central basis for his claim for a protection visa, with reasonably detailed reasons for why that conclusion had been reached.
The Tribunal, apparently on its own initiative, questioned whether there were any alternative bases for a claim for protection, even though it would seem that none had been raised by the applicant himself. In particular, the Tribunal ascertained that there was no fear of persecution based on the practice of religion. A trigger for asking those questions was a mention in a Departmental entry interview that the applicant chose to come to Australia because, among other things, religion could be practised freely in Australia.
The Tribunal also asked the applicant if he had any fears or concerns about returning to Bangladesh, but was told that there was not any problem apart from the asserted fact that wherever he is in Bangladesh, his girlfriend’s father, brother and relatives will find him and kill him. That was asserted as the applicant’s only fear. Nonetheless, in response to written submissions provided by the applicant’s migration agent, the Tribunal during the hearing discussed country information concerning the consequences of returning to Bangladesh after a period of absence and noted that this did not give rise to any concern.
The Tribunal expressly stated that it had taken the applicant’s migration agent’s written and oral submissions into account, including claims that returnees are often the subject of suspicion and kidnappings, and the notion that honour killings are not always confined to killing a woman in a strict society, citing an article on this topic. The Tribunal’s reasons stated that it had considered all the country information before it and did not accept that returnees were often the subject of discrimination or suspicion and kidnappings on the basis of being a returnee.
Because the Tribunal had found that the applicant was not a witness of truth and was not satisfied that there was any real chance that the applicant would suffer serious harm, or a harm of any kind for the reasons he claimed or for any of the other reasons discussed if he returned to Bangladesh now or in the foreseeable future, the Tribunal found the applicant did not have a well-founded fear of persecution.
The Tribunal then turned to complementary protection and for much the same reasons as for the Refugees Convention claims did not accept that there was any real risk to the applicant by reason of his asserted girlfriend’s family or relatives, from the police in relation to false charges, in relation to religion, or for any other reason. Accordingly, the complementary protection basis for obtaining a protection visa also failed.
Before the Federal Circuit Court
Three grounds of review were advanced before the primary judge. They were reproduced in full in his Honour’s reasons at [8]. They may be shortly summarised as follows:
(1)jurisdictional error by the Tribunal in failing to take into account the most recent material available on honour killings in Bangladesh; jurisdictional error in forming an opinion about a well-founded fear based on disbelieving the applicant; and failure to use the real test of persecution and harm according to the Migration Act 1958 (Cth);
(2)asserted errors in relation to the conduct of the hearing by which there was denial of procedural fairness; irrelevant questions to confuse and discredit the applicant’s evidence; the applicant not understanding questions raised by the Tribunal; and problems with the interpretation provided, along with factual assertions as to having told the truth and the prevalence of honour killing in Bangladesh; and
(3)failure to apply the correct test in relation to complementary protection in s 36(2)(aa) of the Migration Act.
In relation to ground 1 concerning honour killings and how that was dealt with by the Tribunal, the primary judge observed that as the Tribunal had made adverse findings in relation to the applicant’s credit, it was not required to make further findings in relation to the most recent country information, but nonetheless had taken into account country information, even if it was not the most recent, and the submissions made by the applicant’s migration representative. As the adverse credit findings appear to have been arrived at in a conventional and indeed acceptable way, that was a conclusion fairly open to his Honour.
Further, as the primary judge observed, the Tribunal correctly identified the relevant law in relation to Refugees Convention claims under s 36(2)(a) of the Migration Act. Accordingly, his Honour concluded that there was nothing to indicate that the Tribunal had failed to comply with its statutory obligations.
The issue of denial of procedural fairness was treated as being part of ground 1 and was found not to have any apparent substance. Whether that is treated as part of ground 1 or as part of ground 2, there is nothing in the material before me to indicate any error on the primary judge’s part in that regard. Accordingly, the primary judge held that ground 1 failed to make out any arguable jurisdictional error.
In relation to ground 2, the primary judge noted that there had not been any evidence adduced to demonstrate any error in relation to the interpreter at the Tribunal hearing, especially as no material or specific error was identified. To the extent that his Honour was identifying the lack of any basis to find a problem with interpretation going to jurisdiction, that would appear to be correct. His Honour correctly observed that complaints about adverse findings of credit did not of themselves establish any jurisdictional error, nor were those adverse findings a basis for the implicit assertion of bias by reference to making a decision with a closed mind. Accordingly, the primary judge held that ground 2 failed to disclose any arguable case.
In relation to the asserted failure to apply the correct test in relation to complementary protection advanced as ground 3, the primary judge considered that the Tribunal had correctly identified the relevant law and considered the applicant’s claims and evidence against that. His Honour concluded that there was nothing in the Tribunal’s reasons to support the proposition that the Tribunal had failed to apply the correct test in relation to complementary protection. Accordingly, the primary judge held that ground 3 failed to identify any arguable jurisdictional error.
The primary judge concluded that he was satisfied that the applicant had failed to establish any arguable jurisdictional error. His Honour expressly stated that he took into account the cautionary note sounded by the High Court in Spencer v Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 at 131-2 [24]-[25] and 141 [59]-[60] in relation to the exercise of powers to dismiss proceedings summarily.
Before this Court
The grounds set out in the application for leave to appeal and in the draft notice of appeal appear to be in substantially the same terms. They are as follows (reproduced verbatim from the draft notice of appeal):
1.The judge of the Federal Circuit Court in his honourable judgement delivered on the 22 July 2016 failed error of law and relief under the judiciary Act. He failed to find that the Administrative Appeals Tribunal (AAT) has not found any evidence in relation to may claims and thus its decision influenced by sufficient doubt.
2.The Administrative Appeals tribunal’s decision was affected by the recent High Court reported decisions.
3.Besides, the Administrative Appeals Tribunal did not follow the proper procedure as required by the Act in arriving its decision in deciding my Protection visa review application. Thus, the procedures that were required by the act or regulations to be observed in connection with the making of the decision were not observed.
None of the above proposed grounds identify either an error on the part of the primary judge, or a jurisdictional error on the part of the Tribunal which the primary judge may have overlooked.
I have read the reasons of the Tribunal and of the primary judge, as well as the Minister’s written submissions. There were no written submissions on behalf of the applicant.
At the hearing, the applicant said that everything he had said and written before, including as to what had happened to him, was all true and that he did not know what else to say. He did not make any submissions as to error by the Tribunal or the primary judge.
While the first proposed ground appears to allege that the primary judge failed to find any errors on the part of the Tribunal and failed to grant the applicant relief, no such error is identified. No basis is advanced for the assertion that the primary judge’s decision was attended by any doubt, let alone sufficient doubt.
The second proposed ground refers at large to recent High Court decisions, but does not identify what decisions are being referred to. Accordingly, it is impossible to know what that ground might be referring to, let alone what merit it might have.
The third proposed ground follows the language of what might constitute an allegation of jurisdictional error, but beyond asserting that to exist says nothing about how or why it exists. Without meaningful particulars it is impossible to act upon such a proposed ground.
The applicant’s affidavit affirmed 1 August 2016 asserts that the primary judge dismissed his judicial review application without giving any reasonable grounds and states that there were arguable grounds but unfortunately the primary judge failed to take into account all relevant grounds when making his decision. It also asserts a belief that the primary judge breached the rules of natural justice and procedural fairness when making his decision and failed to identify the error made by the Tribunal. In common with the proposed grounds of appeal, none of these allegations identify in any way what is said to be wrong with the primary judge’s decision or the Tribunal’s decision. Without such identification no proper basis for an appeal is identified at all.
Conclusion
As I am unable to discern any jurisdictional error on the part of the Tribunal nor any error on the part of the primary judge, it is not possible to form any conclusion that the decision of the Court below is attended with any doubt, let alone sufficient doubt, to warrant it being reconsidered on appeal. Nor is it possible to form a view that any injustice, let alone substantial injustice, would result if leave were refused. It follows that the application for leave to appeal must be dismissed with costs.
I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromwich. Associate:
Dated: 29 November 2016
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