AVA16 v Minister for Immigration

[2017] FCCA 2366

FEDERAL CIRCUIT COURT OF AUSTRALIA

AVA16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2366

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugee Division) – protection visa – whether the Tribunal denied the applicant procedural fairness – whether the applicant was denied the opportunity to respond to evidence – no jurisdictional error made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 476

Applicant: AVA16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 841 of 2016

Judgment of: Judge Street

Hearing date: 29 September 2017

Date of Last Submission: 29 September 2017

Delivered at: Sydney

Delivered on: 29 September 2017

REPRESENTATION

Counsel for the Applicant: The applicant appeared in person.

Solicitors for the Respondents: Ms S Sangha
Mills Oakley

ORDERS

1. The application is dismissed.

2. The applicant to pay the first respondent’s costs fixed in the amount of $5,200.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 841 of 2016

AVA16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

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 a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 14 March 2016, affirming a decision of the delegate not to grant the applicant a protection visa.

2. The applicant was found to be a citizen of Bangladesh and his claims were assessed against that country. The applicant arrived in Australia as an unauthorised maritime arrival on 28 March 2013. The applicant participated in an entry interview on 12 April 2013 and the applicant lodged an application for a protection visa on 6 June 2013. The applicant claimed that the political situation in Bangladesh was “not good”, as the Awami League and Bangladesh National Party (“BNP”), struggled for power. The applicant alleged his problems began when he witnessed a murder in October/November 2012, when members of the Awami League clashed with members of the BNP and a BNP supporter was beaten to death with bamboo sticks.

3. The applicant alleges that the BNP wanted him to report the Awami League and the Awami League warned him against this. The applicant fled to his uncle’s home and his uncle then arranged for the applicant to leave Bangladesh.

4. The applicant claimed to fear harm as a result of an imputed political opinion as a person who did not cooperate with the BNP. The applicant also claimed to fear harm as a failed asylum seeker who departed Bangladesh unlawfully.

5. The applicant, on 4 August 2014, was invited to attend an interview with the delegate, which the applicant attended on 9 September 2014, and the decision delivered on 14 October 2014. The delegate refused to grant the applicant a protection visa, and found the applicant was not a credible witness, and that the applicant failed to meet the criteria for the grant of a visa under the Act.

The Tribunal’s Decision

1. On 28 October 2014, the applicant applied for review. By letter dated 10 February 2016, the applicant was invited to attend a hearing. There was an initial suggestion for an adjournment of that hearing, which was refused. The applicant appeared on the hearing date with his migration representative to give evidence and present arguments. The Tribunal, in its reasons, identified the background to the application review and set out the relevant law. The Tribunal identified the applicant’s migration history and set out the applicant’s claims and evidence.

2. In relation to the political struggles in Bangladesh, the Tribunal took into account country information and was not satisfied the present applicant has a real chance of suffering harm in Bangladesh by reason of the political instability.

As a witness to a murder

1. The Tribunal turned to the applicant’s fears as an alleged witness to a murder. The Tribunal found that there were numerous witnesses to the alleged killing in the marketplace. The Tribunal accepted that the applicant was one of a number of persons who witnessed the killing of a BNP supporter by the Awami League.

2. The Tribunal accepted that the applicant was threatened by members of both parties in order to pressure him to do their bidding. The Tribunal also accepted that the applicant fled to his uncle’s home and then travelled to Dhaka, and obtained a false passport, and departed Bangladesh, travelling to Australia.

Imputed political opinion

1. The Tribunal referred to the applicant’s fears that he believed he would be killed for reasons of an imputed political opinion. The Tribunal explored with the applicant at the hearing what happened to any of the other witnesses and the applicant did not know. The Tribunal put to the applicant that if he was of ongoing interest to the supporters of the local political parties or anyone else, and that he had a real chance of persecution on return, it would have been the position that his family would be well placed to be aware of any ongoing harassment to other witnesses and if they had no evidence of any harm, harassment or questioning of other witnesses, the Tribunal may not accept the applicant has a real chance of harm on return.

2. The applicant alleged that he was more at risk than any other witness. The Tribunal found that it was not satisfied that any pressure that the applicant may have suffered would make him more at risk of harm than any other witness to the killing. The Tribunal was not satisfied the applicant’s testimony would continue to be sought in Bangladesh. The Tribunal noted the applicant did not provide a statement to the police and was not even contacted by the police. The Tribunal found that neither the applicant nor his family were ever contacted by police in order for him to give evidence. The Tribunal was not satisfied the applicant has a real chance of suffering any harm in Bangladesh by reason of being an alleged witness to a murder.

Unlawful Departure

1. The Tribunal then turned to the applicant’s unlawful departure. The Tribunal was not satisfied the applicant has a real chance of being penalised, or that even if he departed Bangladesh unlawfully, the Tribunal was not satisfied there was a real chance that any penalty would be enforced against him. The Tribunal was not satisfied the applicant has a real chance of suffering harm in Bangladesh for any of the reasons claimed.

Relocation

1. The Tribunal, although not required to, turned to then consider whether it was reasonable for the applicant to relocate and found that the applicant could safely relocate within Bangladesh, and found that it was reasonable for him to do so, taking into account the ability to obtain employment and to find accommodation. The Tribunal, although not required to address this finding, found that the applicant can safely and reasonably relocate within Bangladesh.

Failed asylum seeker

1. The Tribunal turned to the applicant’s claims of fear by reason of being a failed asylum seeker. The Tribunal was not satisfied there is a real chance of the applicant suffering any harm in Bangladesh, should he return as a failed asylum seeker. The Tribunal did not accept the applicant had a well-founded fear of persecution for a Refugees Convention reason in Bangladesh. The Tribunal was not satisfied on the applicant’s evidence that there was a real chance the applicant would be subject to serious harm in Bangladesh for any reason advanced.

2. The Tribunal was not satisfied the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. The Tribunal was not satisfied the applicant meets the criteria under s.36(2)(a) of the Act.

Complementary protection

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

Proceedings before this Court

Grounds in the application

1. The Grounds of the application are as follows:

   1. The Administrative Appeals Tribunal Officer erred in law to come to a decision dismissing my application not finding that the tribunal did not consider that I was a victim of persecution for my non political and also due unwilling to become a witness of murder case prior to my departure from Bangladesh

   2. The Administrative Appeals Tribunal Officer did not find that there was lack of procedural fairness in the decision of the Administrative Appeals Tribunal as the Tribunal failed to consider that I was mentally abused for my non-political belief and my life was at risk which forced me to leave Bangladesh for safety of my life. I was not accepted by Tribunal as a credible witness and refused my application.

   3. The Administrative Appeals Tribunal Officer made errors of jurisdiction not considering the Tribunal's failure to give me a reasonable opportunity to respond to independent evidence in possession of the Tribunal which suggests that I shall not be a victim of harassment of my non political belief if I returned to Bangladesh.

   4. The Administrative Appeals Tribunal Officer made error to find that the Tribunal failed to accept that the persecutions I experienced in Bangladesh and I shall be imprisoned and tortured if returned to Bangladesh. The Tribunal refused my claim on the ground that I am not a credible witness for my claims though I presented all relevant documents and evidences in support of my claims before the Tribunal prior to hearing.

   5. The Administrative Appeals Tribunal Officer erred in not finding that the tribunal erred in law amounting to jurisdictional error in finding that I do not have genuine fear of persecution for a convention reason and I do not meet the criteria set out in s 36(2) of Protection Visa.

2. On 5 May 2016, 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.

Nature of the hearing

1. At the commencement of the hearing, the Court explained to the applicant that this was a final hearing to determine whether 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.

2. The Court explained that, in summary, this meant the Court was considering whether the Tribunal’s decision was unlawful or unfair. The Court explained that if satisfied the Tribunal decision was unlawful or unfair, the Court would set aside the decision and send it back for a for further hearing. The Court explained that if not satisfied the Tribunal decision was unlawful or unfair, the application would be dismissed. The Court explained that it would have identified the evidence and then hear submissions from the applicant. The Court explained that provided the applicant put submissions, the Court would call on the solicitor for the first respondent to put submissions and give the applicant an opportunity to put submissions in reply. The applicant confirmed that he understood the nature of the hearing as explained by the Court.

3. From the bar table, the applicant confirmed that he had read to him the submissions of the first respondent. When invited to put submissions, the applicant indicated there was nothing that he wished to say. The Court reminded the applicant that if he did not put submissions, and as the submissions for the first respondent explained why the first respondent submitted that there was no legal error of the kind alleged in the grounds of the applicant’s application, the Court would not call on the solicitor for the first respondent. The applicant confirmed that he did not wish to put submissions.

Consideration

Ground 1

1. In relation to Ground 1, it is apparent that the Tribunal addressed the applicant’s claimed fear of the political uncertainty in Bangladesh as well as the applicant’s claim in relation to witnessing a murder. The applicant’s disagreement with the outcome does not identify any jurisdictional error. On the face of the material before the Court, the Tribunal complied with its statutory obligations in the conduct of the review. Based on the material before the Court, the Tribunal complied with its obligations of procedural fairness in the conduct of the review. No jurisdictional error, as alleged in Ground 1, is made out.

Ground 2

1. In relation to the claim that the applicant feared harm by reason of being mentally abused for a non-political belief, no such claim was advanced on the material before the Tribunal, and no such claim arose on the material before the Tribunal. The Tribunal did not err by failing to deal with the claim that was not raised. In relation to the adverse credibility findings by the Tribunal, it was open to the Tribunal to make those adverse credibility findings, and the findings cannot be said to lack an evident and intelligible justification. No jurisdictional error, as alleged in Ground 2, is made out.

Ground 3

1. In relation to Ground 3, in the invitation to hearing, the applicant was informed that the Tribunal could not make a favourable decision on the material that was currently before the Tribunal. The applicant was given an opportunity to attend and give evidence. It was not necessary for the Tribunal to provide independent country information to the applicant for comment. On the face of the material before the Court, the applicant had a real and meaningful hearing before the Tribunal.

2. The Tribunal was under no obligation, in respect of the adverse credibility findings, to give the applicant a further opportunity to be heard. The applicant’s credit had been in issue before the delegate. No jurisdictional error, as alleged in ground 3, is made out.

Ground 4

1. Ground 4, in substance, reflects a disagreement with the adverse findings by the Tribunal for reasons already given, and those adverse findings were open. This Court does not have power to revisit the merits. No jurisdictional error was made out by Ground 4.

Ground 5

1. Ground 5, again, in substance, is a disagreement with the adverse findings by the Tribunal. The Tribunal correctly identified the relevant law and, on the face of the Tribunal’s reasons, correctly applied the relevant law to the findings made by the Tribunal. There was no basis to find that the Tribunal made any error of law in relation to the application of the criteria for the grant of the visa. No jurisdictional error of the kind alleged in Ground 5 is made out.

Conclusion

1. The application is dismissed.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:

Date:  16 October 2017