Axh15 v Minister for Immigration

[2016] FCCA 617

FEDERAL CIRCUIT COURT OF AUSTRALIA

AXH15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 617

Catchwords:
MIGRATION – Review of decision of the former Refugee Review Tribunal – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), ss.36, 424AA

AMA15 v Minister for Immigration [2015] FCA 1424
SZGIZ v Minister for Immigration (2013) 212 FCR 235
SZRAG v Minister for Immigration [2016] FCA 189
SZVCH v Minister for Immigration & Anor [2015] FCCA 2950

Applicant: AXH15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1492 of 2015

Judgment of: Judge Driver

Hearing date: 22 March 2016

Delivered at: Sydney

Delivered on: 22 March 2016

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Mr M Glavac of Clayton Utz

INTERLOCUTORY ORDERS

1. The name of the second respondent is amended to the “Administrative Appeals Tribunal”.

2. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

3. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,416 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1492 of 2015

AXH15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the former Refugee Review Tribunal, now the Administrative Appeals Tribunal (Tribunal).  The decision was made on 7 May 2015.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.  Background facts relating to the applicant’s claims for protection and the Tribunal’s decision on them are set out in the Minister’s outline of legal submissions. 

2. The applicant first applied for a protection visa on 5 October 2010 (first application).[1]  That application was refused by a delegate of the Minister on 2 February 2011.[2]  The delegate's decision was affirmed by the Tribunal on 27 May 2011.[3]  The applicant sought judicial review of the Tribunal's decision, both in the Federal Magistrates Court, as it then was, and on appeal to the Federal Court. The Tribunal's decision was upheld on both occasions.

   [1] Court Book (CB) at 22-45.

   [2] CB at 71-89.

   [3] CB at 91-114.

3. On 1 November 2012, the applicant lodged the application which is the subject of this judicial review (second application).[4]  The reasons for claiming protection stated by the applicant in the second application are almost identical to those stated in the first application.[5]  The second application was accepted as valid following the decision of the Full Federal Court in SZGIZ v Minister for Immigration (SZGIZ).[6]

   [4] CB at 115-139.

   [5] Compare CB at 28-31 and CB at 121-124.

   [6] (2013) 212 FCR 235. CB at 145-150.

4. The second application was refused by the delegate on 11 April 2014.[7]

   [7] CB at 157-172.

Tribunal decision

1. On 7 May 2014, the applicant applied to the Tribunal for review of the delegate's decision.[8]  The Tribunal was unable to make a decision favourable to the applicant on the material before it and invited him to attend a hearing on 24 February 2015.[9]  In assessing the applicant's claims in relation to the second application, the Tribunal had regard to the applicant's claims and evidence in support of the first application, including the Departmental file for the first application, which contained copies of the documents submitted by the applicant for his application for a tourist visa.[10] That application was made for himself and his wife, and showed him to be a director of a company named Beryl Apparels PVT Ltd.[11] 

   [8] CB at 173-178.

   [9] CB at 181-182.

   [10] See CB at 1-21.

   [11] CB at 5; CB at 198; Tribunal Decision Record (DR) at [15].

2. In short compass, the applicant claimed in the first application that he was a leader of the Bangladesh Nationalist Party (BNP) and would be persecuted by the “activists and leaders of Awami League”, and also the police, Rapid Action Battalion (RAB) and “other government's [sic] authorities”, who were under the influence of the Awami League, if he returned to Bangladesh.[12]  In particular, he claimed that:[13]

   a)he served as an Assistant Organising Secretary of the Tongibari Thana Committee of the BNP. In this role he performed “various social developments” and because of him, the Awami League was unsuccessful in its efforts to establish there;

   b)when the Awami League came to power in December 2008 they targeted the applicant. He was “physically attack[ed]… on three occasions”.  On 11 June 2010 he was "badly injured" and received "treatment over a week";

   c)the Awami League sent police to his home. The police told his family he was on a “warrant list”; and

   d)after the June 2010 attack the police and RAB were “continuously searching for him”.  To avoid arrest and death he went into hiding. The RAB and Police then threatened his family with arrest.

   [12] CB at 29-30.

   [13] CB at 196-197; DR at [13].

3. In support of his claims in the first application, the applicant provided the Department with country information regarding political violence in Bangladesh,[14] and three written references, including:

   a)a letter signed by the President of the Tongibari Thana Executive Committee of the BNP, dated 15 November 2010;[15]

   b)a letter signed by Mahfuzu Rahman Forhad, dated 13 November 2010;[16] and

   c)a letter signed by the ex-president of the Bangladesh Nationalist Party Australia Inc, Monirul Hoque George, dated 14 December 2010.[17]

   [14] CB at 55-70.

   [15] CB at 52.

   [16] CB at 53.

   [17] CB at 54.

4. As noted by the Tribunal, the second application simply “reiterated”the claims made in the first application. The applicant further developed his claims at a protection visa interview with the delegate which he attended on 10 April 2014, and at the Tribunal hearing.[18] Notably, at the protection visa interview, the applicant conceded to the delegate that he did not have any information which would “negate” the adverse findings reached by the delegate and Tribunal in respect of the first application.[19] 

   [18] CB at 200; DR at [19]-[21].

   [19] CB at 200; DR at [19].

5. Ultimately, the Tribunal determined that the applicant was not a witness of truth.  The Tribunal identified several inconsistencies in the applicant's evidence as being demonstrative of the falsity of his claims, including:

   a)the applicant's claim to be unmarried.  The applicant in his first application claimed he was unmarried.[20] This was “[…]in clear conflict with the claim in his tourist visa application that he was married […] a claim which was supported by his marriage deed”. The applicant claimed that he paid an agent to obtain the visa and that the marriage was "created by the agent". The Tribunal did not believe or accept the explanation;[21]

   [20] CB at 197; DR at [13].

   [21] CB at 201; DR at [23].

   b)the applicant's account of his “travel history”. In his first application the applicant stated that, he had “never travelled to any country other than Australia.” However, in his second protection application, the applicant referred to travels to Malaysia and Bangladesh in 2010. The Tribunal held, “[…] this aspect of his original protection visa […]  was advancing a claim about his travel history which he knew to be untrue. I find that this casts further doubt over the reliability of his claims”;[22]

   [22] CB at 201; DR at [23].

   c)the applicant's “employment history”.  The applicant in his second protection application claimed that his “sole position of employment” in Bangladesh was as a political activist, specifically, in the position of Personal Secretary to a BNP Politician. However, the Tribunal referred to the applicant's tourist visa application of 2010 in which the applicant listed his occupation as being the director of a company named Beryl Apparels PVT Ltd.  The applicant claimed to know “nothing of the details” of the tourist application and sought to explain the inconsistency by claiming that his employment history had “been concocted by his elder brother and his agent in Bangladesh to improve his prospects of obtaining a visa for Australia”. The Tribunal did not accept the applicant's explanation, noting that:

   i)the tourist visa application was supported by a considerable volume of company documents; and

   ii)the applicant had “vague and uninformative” knowledge of his work in the position of Personal Secretary, suggesting he worked in a different role;[23]

   [23] CB at 201-202; DR at [23].

   d)the applicant's evidence regarding when he went into hiding. The applicant claimed to have been “in hiding” since the Awami League came to power in early 2009.  In his first protection visa application however he indicated that he had gone into hiding in June 2010. The applicant attempted to explain this timing inconsistency by stating that “officially” he did not seek to return to his house after 10 June 2010. He also stated that he could not remember why he did not mention earlier that he had been in hiding since 2009;[24]

   e)police and other authorities could not find him because he was in hiding. The Tribunal found this evidence to be inconsistent with the applicant's travels to Malaysia and Australia in 2010. The Tribunal did not believe that an individual who was a suspect wanted by the police and authorities (such as the applicant claimed) would be able to pass through security at the airport without difficulty. The applicant explained that the police in his local area were looking for him, but the airport “is far from his village and the airport police are not controlled by the local cadres”;[25]

   f)the applicant's delay in leaving Bangladesh. The applicant was granted a tourist visa to travel to Australia on 4 August 2010 but did not leave until 6 September 2010. The applicant claimed he needed time to “research the situation” to ensure he would not be arrested or stopped before leaving the country. The Tribunal found this explanation to be “unconvincing”;[26]

   g)the fact that applicant returned to Bangladesh from Malaysia. The Tribunal held that the fact that the applicant had left a safe country to return to a place where he feared for his life, “cast doubt on his claim to have been at risk of harm in Bangladesh”, and suggested that he was “relaxed about returning to Bangladesh.”The applicant only remained in Malaysia for nine days, even though his visa was valid for thirty days;[27] and

   h)the authenticity of the letters of reference provided in support of the applicant's application.  In particular, the Tribunal noted that:

   i)the letters from Mr George and Mr Mallik both describe the applicant as the Organising Secretary of the Tongibari Thana executive committee, which was in conflict with the Applicant's claim to have been the "Assistant Organising Secretary";

   ii)the two letters written by Mr Forhad are written on “plain paper and could have been written by anyone”.  In reply to this, the applicant sought to explain that Mr Forhad did not have a letterhead; and

   iii)independent country information indicates that fraudulent documents are "easily and cheaply available in Bangladesh and often used to support migration and refugee cases".[28]

   [24] CB at 202; DR at [23].

   [25] CB at 202-203; DR at [23].

   [26] CB at 203; DR at [23].

   [27] CB at 203; DR at [23].

   [28] CB at 204-205; DR at [26]-[27].

6. The Tribunal was not satisfied that the applicant had ever suffered harm in Bangladesh, and did not accept that the applicant had left Bangladesh and travelled to Australia because of such a fear. Accordingly, the Tribunal decided to affirm the delegate's decision.

The present proceedings

1. These proceedings began with a show cause application filed on 2 June 2015.  The applicant continues to rely upon that application.  He has not taken up the opportunity afforded him in orders made by Registrar Morgan on 2 July 2015 to file and serve an amended application or additional evidence.  The application is supported by a short affidavit filed with it, which I received.  I also have before me as evidence the court book filed on 13 August 2015.  The application contains two particularised grounds and one unparticularised ground:

   1.The Refugee Review Tribunal has failed to provide reasons for its decision pursuant to section 36(2)(aa) of the Migration Act.

   Particulars:

   In dealing with the Applicant's claims under section 36(2)(aa) of the Migration Act 1958 (Cth), the RRT explicitly failed to provide separate reasons to its consideration under section 36(2)(a) of the Act.

   2.The RRT has failed to apply the correct test pursuant to Section 36(2)(aa) of the Migration Act 1958

   Particulars:

   In dealing with the Applicant's claims under section 36(2)(aa) of the Migration Act 1958 (Cth), the Refugee Review Tribunal explicitly failed to disaggregate the statutory formulae under section 36(2)(a) and 36(2)(aa) of the Act.

   3.The Refugee Review Tribunal denied the Applicant's procedural fairness.

2. I invited oral submissions from the applicant this afternoon.  He told me that he would rely on what he had submitted and had nothing further to say. 

3. It is apparent that Grounds 1 and 2 must fail in the light of the decisions of the Federal Court in AMA15 v Minister for Immigration[29], approved in SZRAG v Minister for Immigration[30]. 

   [29] [2015] FCA 1424

   [30] [2016] FCA 189 at [23]

4. In relation to those grounds, I agree with the Minister’s submissions. 

5. Stripped to their essence, Grounds 1 and 2 allege error on the basis that the Tribunal failed to:

   a)"[…] provide separate reasons under[…] s.36(2)(a)" and;

   b)"[…] disaggregate the statutory formulate (sic) under section 36(2)(a) and s.36(2)(aa)".

6. The applicant was only able to lodge a second protection visa application on the basis of the decision of the Full Court in SZGIZ.[31] As the Tribunal noted, in such circumstances, SZGIZ restricts the Tribunal's jurisdiction to an assessment of a protection criterion not assessed in an earlier application. As the Tribunal had determined in the first application that the applicant did not meet the refugee criterion in s.36(2)(a) of the Migration Act, the Tribunal found that it could only consider the second application on the basis of the complementary protection criterion in s.36(2)(aa) of the Migration Act. It was correct to so find. The Tribunal's approach accords with that stated by Markovic J in AMA15 at [45] and by Katzmann J in SZRAG at [23].[32]

   [31] See CB at 195-196; DR at [4]-[11].

   [32] In AMA15 Markovic J expressly disapproved a contrary decision of mine in SZVCH v Minister for Immigration & Anor [2015] FCCA 2950.

7. The Tribunal's understanding of SZGIZ was on the authorities correct. It is unsustainable for the applicant to argue that the Tribunal was required to consider s.36(2)(a), or provide separate reasons under that provision. To the extent the applicant alleges that the Tribunal impermissibly conflated ss.36(2)(a) and 36(2)(aa), which might be the gist of the complaint that it failed to “disaggregate” the two provisions, he has not specified how the Tribunal made any such error. That alone is fatal to any argument along those lines, however it is apparent from the Tribunal's lengthy discussion of SZGIZ and the structure of the Tribunal’s reasons[33] that the Tribunal's decision was tailored specifically to the complementary protection criterion.

   [33] See, in particular, CB at 205; DR at [28].

8. Ground 3 is unparticularised.  I raised with the solicitor for the Minister whether an argument of procedural unfairness might arise in relation to the use made by the Tribunal of the information contained in the applicant’s visitor visa application.  The Minister’s solicitor took me to [21] of the Tribunal’s decision record:

   The Applicant appeared before me at a hearing on 24 February 2015 to give evidence and present arguments.  The hearing was conducted with the assistance of an interpreter in the Bengali and English languages.  I discussed with him his claims to have been a member of the BNP and to have suffered harm for that reason.  I put to him, in conformity with s.424AA of the Act, concerns I had about the credibility of aspects of his claims, including those arising from the information he had provided in applying for a tourist visa in 2010.

9. It is apparent from that paragraph, and also [24] of the Tribunal’s reasons, that the Tribunal put to the applicant, pursuant to s.424AA of the Migration Act, information that the Tribunal considered bore on the applicant’s credibility, including the information derived from his visitor visa application.

10. In the circumstances, I see no substance in Ground 3. 

11. The applicant has failed to demonstrate an arguable case of jurisdictional error by the Tribunal.  Neither is any arguable case apparent to me from my own reading of the material. 

12. I will, therefore, dismiss the application, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules).

13. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale.  The applicant did not wish to be heard on costs.

14. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,416 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  24 March 2016