Auz17 v Minister for Immigration

[2019] FCCA 1302

FEDERAL CIRCUIT COURT OF AUSTRALIA

AUZ17 & ORS v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 1302

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Protection visa – whether the Tribunal considered the applicants’ claims and evidence – whether the adverse findings were open to the Tribunal – no jurisdictional error made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5, 36, 91R, 476

First Applicant: AUZ17

Second Applicant: AVA17

Third Applicant: AVB17 BY HER LITIGATION GUARDIAN AUZ17

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP & MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: PEG 114 of 2017

Judgment of: Judge Street

Hearing date: 16 May 2019

Date of Last Submission: 16 May 2019

Delivered at: Sydney

Delivered on: 16 May 2019

REPRESENTATION

The First Applicant appeared on behalf of the Second Applicant and as the litigation guardian for the Third Applicant.

Solicitors for the Respondents: Ms B Rayment
Sparke Helmore

ORDERS

1. The Court appoints the First Applicant AUZ17 the litigation guardian on behalf of the Third Applicant and the Court dispenses with the need for the filing of any further document in that regard.

2. The name of the First Respondent is changed to “Minister for Immigration, Citizenship and Multicultural Affairs” and the Court dispenses with the need for the filing of a further document in that regard.

3. The oral application for an adjournment is refused.

4. The Application is dismissed.

5. The First and Second Applicants pay the First Respondent’s costs fixed in the amount of $5,000.00.

DATE OF ORDERS: 16 May 2019

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

PEG 114 of 2017

AUZ17

First Applicant

AVA17

Second Applicant

AVB17

Third Applicant by her litigation guardian AUZ17

And

MINISTER FOR IMMIGRATION, CITIZENSHIP & MULTICULTURAL AFFAIRS

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 (Cth) (“the Act”) in respect of the decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 27 January 2017 affirming the decision of the delegate not to grant the applicants Protection (Class XA) visas.

2. The applicants were said to be citizens of Bangladesh. The first applicant claimed to fear harm from the Awami League by reason of being involved in the Bangladesh Nationalist Party (“BNP”) and refused to join the Awami League. The first applicant became involved in politics whilst at university between 2001 and 2004 and claimed to be an active member of the BNP during this time. The first applicant decided to go back to university in 2007 and, after graduating in 2009, allegedly became involved with the BNP as a volunteer.

3. The first applicant alleges that, at the end of 2011, he met a person S who told him he should be working with the Awami League and not the BNP. The first applicant continued to hear from S throughout 2011 and 2012. The first applicant alleged he received threatening telephone calls in 2013 telling him to join the Awami League.

4. The first applicant alleged he had his car stolen and received threats that his daughter would be kidnapped and killed. The first applicant reported the incidents to the police and was able to get his car back. The first applicant, however, was concerned the police were allegedly corrupt, could be bribed, and would not protect him. The first applicant fears a physical assault and death at the hands of the Awami League.

5. The second applicant is the wife of the first applicant, and the third applicant is their child. The second and third applicants were included in the application for Protection visas as members of the family unit.

6. On 17 June 2015, the delegate found that the applicants failed to meet the criteria for the grant of Protection visas.

7. The applicants applied for a review by the Tribunal on 9 July 2015. By letter dated 28 November 2016, the applicants were invited to, and attended, a hearing on 23 January 2017 to give evidence and present arguments. The first and second applicants appeared with their migration representative.

8. The Tribunal identified the background to the visa application. The Tribunal referred to the first applicant’s initial reasons for claiming protection in the visa application forms, and that the first applicant left Bangladesh because he feared for his life and the lives of his family. The first applicant referred to receiving numerous threatening telephone calls in relation to his political involvement and feared for the safety of himself and his family. The first applicant claimed he would be subjected to serious harm if he continued to live in Bangladesh without joining the Awami League. The first applicant claimed to fear harm from members of the Awami League Government Movement because he refused to join the Awami League Movement.

9. The first applicant, in his statutory declaration dated 9 June 2014, identified that his fear of harm at the hands of the Awami League was based on his involvement with the BNP as well as his refusal to join or work with the Awami League.

10. The delegate found that the first applicant had not been an active member of the BNP since 2004. The delegate did not accept that the first applicant would have a profile as a BNP supporter sufficient to bring him to the attention of the Awami League supporters. The delegate did not accept the first applicant’s claims in relation to S. The delegate was not satisfied that the applicants met the criteria for the grant of Protection visas.

11. The Tribunal then proceeded to summarise what occurred at the hearing and set out the relevant law. The Tribunal found that the first and second applicants were not witnesses of truth and the Tribunal was not satisfied that they had told the truth in relation to critical aspects of their claims. The Tribunal then set out separate reasons in support of the adverse credibility findings. Those reasons include:

    a)the first applicant providing significantly different information in the hearing in relation to the nature and frequency of his political activities compared to the first applicant’s statutory declaration;

    b)the raising of new information in the hearing not identified in the statutory declaration;

    c)the raising of new information in the hearing in relation to the position of S that was not had not been identified in the first applicant’s statutory declaration;

    d)the first applicant raising new information during the hearing about an alleged offer by S of a position in the Awami League government which had not been mentioned in the statutory declaration. The Tribunal did not accept that the first applicant’s memory was impaired or affected by the passage of time and stressed to the level to explain why he failed to mention the alleged offer by S of a position in the government. The Tribunal considered the first applicant has embellished and fabricated his claim in order to strengthen his protection application;

    e)the failure by the first applicant to mention in his oral evidence details about the threatening telephone calls he received due to his political activities in 2013;

    f)the first applicant raising new information during the hearing in relation to threatening telephone calls being received in April/May 2011 and 2012 which had not been mentioned in his statutory declaration;

    g)the first applicant’s explanation that the threatening telephone calls were from S and that he was asked to meet S, in respect of which there had been no earlier mention in his statutory declaration. The Tribunal considered this a new claim and that the first applicant has fabricated it in order to strengthen his protection claims;

    h)the inconsistencies in relation to the documents provided by the first applicant in respect of the alleged telephone calls in 2013 and the failure by the first applicant to mention in oral evidence the same alleged telephone calls;

    i)the first applicant raising a claim, not in the statutory declaration, about people being in front of his house threatening to kill him;

    j)the applicants delay in leaving Bangladesh on 3 March 2014 and the first applicant not resigning from his job until 28 February 2014 despite the applicants being granted visitor visas to Australia on 24 January 2014, as well as the first applicant raising new information that he had been in hiding and that he gave notice he was going to resign in September/October 2013 which had not previously been indicated; and

    k)the Tribunal having concerns about the genuineness of the documents provided by the first applicant in support of his application.

12. The Tribunal found that the first and second applicants were not witnesses of truth. The Tribunal was not satisfied that the first and second applicants had told the truth in relation to critical aspects of their claims.

13. The Tribunal was not satisfied that the first applicant has undertaken any political activity in support of the BNP since 2004. The Tribunal did not accept that the first applicant has a profile or would be imputed with a current political opinion of support for the BNP. The Tribunal was not satisfied that the first and second applicants told the truth about the first applicant becoming involved with the BNP in 2009 or any time thereafter.

14. The Tribunal did not accept that the first applicant became involved with the BNP in 2009. The Tribunal did not accept that the first applicant volunteered or attended BNP meetings as claimed in his statutory declaration.

15. The Tribunal did not accept that S sought to persuade the applicant to join the Awami League, and the Tribunal did not accept that S, or anyone else, caused people to telephone and threaten the first applicant to join the Awami League. The Tribunal did not accept that the applicant received threatening telephone calls in 2011, 2012 and 2013.

16. The Tribunal did not accept that the first applicant was in fear for his safety or the safety of his family at the time he left Bangladesh. The Tribunal did not accept the first-named applicant was of adverse interest to anyone in Bangladesh.

17. The Tribunal did not accept that the first applicant’s father became ill due to stress connected with the first applicant’s claimed situation, and the Tribunal did not accept that someone in the Awami League tried to kill the first applicant’s brother in 2016.

18. The Tribunal did not accept that there are outstanding criminal charges against the first applicant in Bangladesh. The Tribunal did not accept that the applicants are of adverse interest to anyone in Bangladesh.

19. The Tribunal did not accept that the applicants would be harmed in any way due to the first applicant’s previous political activities in 2002 to 2004 if they were to return to Bangladesh now or in the reasonably future. The Tribunal did not accept that the first applicant will undertake any political activity if returned to Bangladesh.

20. The Tribunal did not accept that there is a real chance the first applicant or his family, including the second and third applicants, will be threatened, or kidnapped, or assaulted, or pressured, or mistreated to join the Awami League party or government, or will be killed if they refuse to join the Awami League either now or in the reasonably foreseeable future if returned to Bangladesh.

21. The Tribunal did not accept that there is a real chance the applicants will suffer serious harm, or harm or any kind, for the reasons claimed, or for any other reason, if returned to Bangladesh now or in the reasonably foreseeable future. The Tribunal found that the applicants do not have a well-founded fear of persecution.

22. The Tribunal considered the applicants’ claims individually and cumulatively, but was not satisfied the applicants are owed protection obligations under the 1951 Refugee Convention.

23. The Tribunal found that the applicants failed to satisfy the criteria of s 36(2)(a) of the Act.

24. The Tribunal was not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Bangladesh, there is a real risk the applicants will suffer significant harm. The Authority found that the applicants failed to meet the criteria under s 36(2)(aa) of the Act and affirmed the decision under review.

Before this Court

1. These proceedings were commenced on 24 February 2017. On 3 May 2017, a Registrar of the Court made orders giving the applicants an opportunity to file an amended application, affidavit evidence, and submissions. No such documents have been filed.

2. The application filed in this Court, quite inappropriately, identified Australian Migration & Consulting Services as a law firm. It is entirely improper for a migration agent to hold themselves out as a law firm. The migration agent, Australian Migration & Consulting Services, should never have provided their details in respect of the contact details for an applicant in the proceedings. A migration agent that purports, misleadingly, to be a lawyer and to provide their contact details in Court proceedings exposes themselves not only to adverse costs orders but further potential consequences for inappropriately interfering in the conduct of proceedings before the Court. It is, however, apparent that at the first return date before the Registrar, because the first applicant appeared in person, the first applicant did not have a solicitor on the record in the proceedings and was aware of the orders made.

3. At the commencement of the hearing the Court explained to the first applicant the nature of the hearing, and the first applicant confirmed that he understood the nature of the hearing as explained by the Court. An interpreter was affirmed at the commencement of the hearing. The Court indicated that the first applicant could use the interpreter if he needed to in the course of the hearing.

4. The Court confirmed with the first applicant in the course of the hearing that he understood what was being said. At no stage did the first applicant indicate that he needed the interpreter to translate or assist him. The Court is satisfied, from having observed the first applicant in Court, that the first applicant understood and had a real and meaningful participation in the hearing conducted by the Court.

5. The first applicant sought an adjournment of the proceedings on the basis that he had a lawyer who had been assisting him who had withdrawn, allegedly, from the proceedings on 23 April 2019. For the reasons already identified, it is apparent that there was no lawyer on the record.

6. The Court sought to explore with the first applicant the utility of obtaining an adjournment. Nothing said by the first applicant from the bar table identified any basis upon which the Court could be satisfied that an adjournment would be of any utility. The first applicant has had ample opportunity to obtain legal representation if he was able to do so, not just because the proceedings were commenced on 24 February 2017 but also as a result of the orders made by the Court.

7. The person who ceased assisting the applicants on 23 April 2019 was not a lawyer on the record, which the applicants must have known. The Court is not satisfied an adjournment is warranted in the interests of the administration of justice. It is for these reasons that the adjournment was refused.

8. From the bar table, the first applicant maintained that he had told the Tribunal the truth in relation to his circumstances, and he disagreed with the outcome in respect of his application for the Protection visa. The Tribunal gave detailed consideration to the first applicant’s claims and evidence, and it is apparent on the face of the Tribunal’s reasons that the Tribunal raised with the first applicant the issues in respect of the first and second applicants’ credibility. It is also apparent that the Tribunal gave detailed, logical and rational reasons in support of the adverse credibility findings that cannot be said to relate to trivial or insignificant matters.

9. Notwithstanding the first applicant’s disagreement with the adverse findings, those adverse findings were open to the Tribunal for the reasons given by the Tribunal as summarised above. Those adverse credibility findings cannot be said to lack an evident and intelligible justification.

10. The first applicant’s submissions from the bar table otherwise invited the Court to engage in merits review. This Court has no power to review the merits, nor can the Court decide the matter on compassionate or discretionary grounds.

The grounds

1. The grounds in the application are as follows:

   1.Bangladesh is the applicants' receiving country as defined in section 5 of the Migration Act, for the purpose of assessing the complementary protection criteria.

   2.The applicants do not have statutory effective protection in a third country as set out in subsection 36(3) of the Migration Act.

   3.The Refugees Convention ground of political opinion is the essential and significant reason for the harm feared.

   4.The applicants fear they will be harmed at the hands of the Awami League members on account of their involvement with the Bangladesh Nationalist Party (BNP) and the main applicant refused to work for the Awami League. The delegate of the Minister satisfied that the harm feared is serious harm and systematic and discriminatory conduct as required by subsections 91R(l )(b) and (c) of the Migration Act. Therefore, the harm feared amounts to persecution.

Grounds 1 to 3

1. Grounds 1 to 3 are, in substance, an assertion in respect of the applicants’ claims and do not identify any alleged error by the Tribunal. It is apparent from the Tribunal’s reasons that the Tribunal correctly identified the relevant law. It is apparent from the Tribunal’s reasons that the applicants had a real and meaningful hearing before the Tribunal.

2. On the face of the material before the Court, the Tribunal complied with its obligations of procedural fairness in the conduct of the review. On the face of the material before the Court, the Tribunal’s reasons reflect a real and meaningful engagement of the applicants’ claims and evidence, and the making of dispositive findings in respect of the applicants’ claims were open to the Tribunal. No jurisdictional error arises by reason of grounds 1 to 3.

Ground 4

1. In relation to ground 4, this is in substance, again, an assertion as to the applicants’ fears. The Tribunal considered the first applicant’s fears in relation to the Awami League and because of his involvement with the BNP. The Tribunal found that the applicants do not face a real risk or real chance of serious harm or significant harm if returned to Bangladesh now or in the reasonably foreseeable future. Those adverse findings were open to the Tribunal for the reasons given by the Tribunal.

2. The first applicant’s contention to the contrary is an invitation to this Court to engage in merits review. Ground 4 fails to make out any jurisdictional error.

3. In the first applicant’s affidavit filed in support of the application in this Court, the first applicant contends the decision was wrong and maintained that he would be harmed by the Awami League. For the reasons already given, it is apparent that the Tribunal considered the first applicant’s claim in that regard and made adverse credibility findings in relation to the same that were open to the Tribunal. The first applicant’s disagreement with the Tribunal’s reasons does not identify any jurisdictional error.

4. As the application fails to make out any jurisdictional error, the application is dismissed.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:  

Date:  26 June 2019