Ayq16 v Minister for Immigration
[2019] FCCA 1019
•18 April 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AYQ16 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 1019 |
| Catchwords: MIGRATION – Migration Act 1958 (Cth) – application for a Protection visa – application for judicial review of a decision of the Administrative Decision Tribunal affirming a decision of a Delegate of the Minister for Immigration to refuse to grant a Protection visa to the applicant – Administrative Appeals Tribunal did not believe Applicant and made adverse credibility findings – no jurisdictional error established by the applicant – application for judicial review dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 476 |
| Cases cited: AWA15 v Minister for Immigration [2018] FCA 604 AZU15 v Minister for Immigration & Border Protection (2016) 240 FCR 143 |
| Applicant: | AYQ16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 994 of 2016 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 30 May 2018 |
| Delivered at: | Sydney |
| Delivered on: | 18 April 2019 |
REPRESENTATION
| The Applicant appeared in person. |
| Counsel for the First Respondent: | Mr J. Hutton |
| Solicitors for the First Respondent: | Australian Government Solicitor |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
The Application filed in this Court on 26 April 2016 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 994 of 2016
| AYQ16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant is a male citizen of Bangladesh aged 45 years, having been born on 10 December 1973.
By Application filed in this Court on 26 April 2016 he seeks to quash and have re-determined the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 30 March 2016 affirming the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 17 September 2014 refusing to grant to him a Protection (Class XA) (Subclass 866) visa (Protection visa).
Background
The Applicant arrived in Australia on 28 March 2013 as an unauthorised maritime arrival. An entry interview was conducted on 5 April 2013 at the Northern Immigration Detention Centre by an officer of the Minister. He made a valid application for a Protection visa on 19 June 2013.
Claims for Protection
In his Statutory Declaration declared on 10 June 2013 (Statutory Declaration) forming part of his Protection visa application he made the following claims:
a)he is from a village in the Jessore District of Bangladesh;
b)his family have always supported the Bangladesh Nationalist Party (BNP);
c)his brother Rusina (i.e. a psuedonym) was a strong supporter of the BNP and became an official member of the BNP in 2003;
d)Rusina would volunteer his time with the BNP by attending meetings, participating in rallies, recruiting new members and collecting membership money;
e)in 1992 he commenced working for Rusina at his grocery store where he observed Rusina’s devotion to the BNP, which resulted in him having to manage the store in Rusina’s absence;
f)in 2008 the Bangladesh Awami League (AL) came into power and from time to time members of the AL would harass and assault Rusina because of his political allegiance to the BNP;
g)the AL members would regularly visit the store and demand goods and in 2009 and 2010 the AL members physically assaulted Rusina at the Shikarpur Bazaar by punching and kicking him;
h)during 2012 Rusina’s business was very successful and profitable and AL members came to the store in August 2012 to demand a political donation of 50,000BDT and said that the store would have to be closed unless that donation was paid;
i)both he and Rusina feared harm from the AL members and Rusina paid the 50,000BDT donation from cash held at the store and from his savings at the bank;
j)another demand was made in December 2012 to pay a further 300,000BDT donation with the threat that if this donation was not paid the store would have to be closed and Rusina would “have to go away from here”;
k)Rusina closed the store for a week so that he could arrange to sell a portion of his land to pay the AL the additional donation demand;
l)a week later they re-opened the store and the AL members visited and asked why the store had been re-opened when the 300,000BDT donation had not been made. After realising that they could not provide the donation, both he and Rusina went into hiding at the house of Rusina’s father-in-law in Jessore City;
m)when the AL members found that the store had been closed they forced their way into the store, ransacked it and destroyed the goods inside. He and Rusina did not report the incident as they knew the police would not assist BNP supporters;
n)the AL members approached their family in the village and threatened them that if he and Rusina returned without the money that they would be killed;
o)Rusina and other family members had told him that it was not safe for him to return home to his village and he knew that he could not relocate to another part of Bangladesh as the AL supporters are everywhere, so Rusina arranged for him to leave Bangladesh in about February 2013 with the assistance of a people smuggler;
p)he fears for his safety and that he would be assaulted or killed if he returns to Bangladesh, as his family tells him that the AL members are still looking for him;
q)the authorities are unwilling or unable to protect him because the AL is the ruling party; and
r)he fears being mistreated and harmed based on his actual and / or imputed political opinion as well as the outstanding donation owed to the AL.
Relevant Criteria and Law Applicable to Protection Visa Applications
A convenient summary of the relevant grounds and criteria for the grant of the Protection visa in this proceeding can be found in the judgment of Charlesworth J in AWA15 v Minister for Immigration [2018] FCA 604 at [5] – [7] as follows:
[5] The Minister is to grant a visa if satisfied that the visa applicant satisfies the relevant criteria. If the Minister is not so satisfied, he must refuse to grant the visa: s 65(1) of the Act. For the appellant to qualify for the grant of a protection visa it was necessary for the Minister to be satisfied that (among other things) the appellant fulfilled either the criterion in s 36(2)(a) of the Act (Refugee Criterion) or the criterion in s 36(2)(aa) of the Act (Complementary Protection Criterion).
[6]The Refugee Criterion requires that the Minister be satisfied that the visa applicant is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention, as amended by the Refugees Protocol, namely a person who:
... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.
[7]Relevantly, the Complementary Protection Criterion requires that the visa applicant be a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because:
... the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; ....
Decision of Delegate
The Applicant attended an interview with the Delegate on 20 August 2014.
In his Decision Record the Delegate summarised the Applicant’s claims to protection and noted the post interview submissions made by the Applicant’s solicitor and registered migration agent dated 3 September 2014 (solicitor’s written submissions), as follows:
a)Attaching significant weight to any discrepancies between what is noted in the Applicant's entry interview and his subsequent evidence to the Department would be unfairly prejudicial to the Applicant.
b)Attaching significant weight to any failure to mention information which may be relevant to whether he is a refugee would be unfairly prejudicial to the Applicant.
c)The agent provided Refugee Review Tribunal guidelines on the assessment of oral evidence provided by applicants generally.
d)The agent provided judicial statements on the assessment of the credibility of oral evidence.
e)The agent reiterated the Applicant's claim that Rusina made the arrangements and paid the people smuggler for his journey to Australia.
f)The agent reiterated the Applicant's claim that Rusina was actively involved with the BNP and as a consequence the Applicant was required to manage Rusina's business.
g)Notwithstanding the credibility concerns raised at the interview, the Applicant has been consistent in maintaining the significant events in his life.
In the result, the Delegate rejected the Applicant’s claims in their entirety, basically on credibility grounds founded on perceived inconsistencies in the Applicant’s claims over the course of time, including at his entry interview on 5 April 2013, in his Statutory Declaration and at the interview with the Delegate. The Delegate did not accept that the Applicant had been a strong supporter of the BNP or that Rusina had been an active member of the BNP. Further, the Delegate rejected the Applicant’s claims that AL members demanded 300,000BDT from the Applicant and Rusina, that he had been threatened with mistreatment or death for his failure to pay and that the Applicant and Rusina fled to Jessore to escape from the AL members.
Accordingly, the Delegate found that he was not satisfied that Australia had protection obligations to the Applicant under s.36 of the Migration Act 1958 (Cth) (the Act) and cl.866.221 of Sch.2 to the Migration Regulations 1994 (Cth) and refused to grant the Protection visa to the Applicant.
Tribunal Decision
The Applicant lodged an application for merits review of the Delegate’s decision with the Tribunal on 13 October 2014 and gave a copy of the Decision Record of the Delegate to the Tribunal at the same time.
The Applicant appeared before the Tribunal on 29 March 2016 to give evidence and present arguments with the assistance of an interpreter in the Bengali and English languages.
At [24] of its Decision Record the Tribunal recorded the material before it, including the evidence of the Applicant at the entry interview on 5 April 2013, at the interview with the Delegate on 20 August 2014 and at the Tribunal hearing, together with the solicitor’s written submissions and independent country information on Bangladesh.
From [26] – [34] of its Decision Record the Tribunal summarised the claims made by the Applicant. At [34] the Tribunal noted that the Applicant had raised two additional claims at the Tribunal hearing to the effect:
a)that his two older brothers, namely Razim (i.e. a psuedonym) and Runima (i.e. a psuedonym), were forced to flee the family’s village in mid-2014 and are now living in Jessore City due to pressure created by the AL arising out of the difficulty suffered by Rusina and himself; and
b)that AL activists had actually beaten the Applicant and destroyed part of the store while the Applicant was in it because the 300,000BDT had not been paid.
From [35] – [49] of its Decision Record the Tribunal recorded its consideration and assessment of the claims made by the Applicant. At [36] and [37] it foreshadowed its ultimate findings that it did not consider the Applicant to be a credible witness and that he had fabricated claims and concocted evidence to achieve an immigration outcome. At [38] the Tribunal recorded that the Applicant had provided inconsistent evidence in relation to his central claim that he feared harm and had departed Bangladesh because the AL had not been paid the 300,000BDT donation as had been promised and at [39] the Tribunal noted the inconsistent evidence given by the Applicant in relation to that issue. One such inconsistency was that there had been no mention in the Statutory Declaration to the effect that, when after the demand for the donation of 300,000BDT the shop had been closed for a week and then reopened, the AL activists came back with wooden sticks and broke the goods on the shelves and hit the Applicant on the back, whereas at the Tribunal hearing such a claim had been made for the first time.
At [40] of its Decision Record the Tribunal recorded that the Applicant did not respond when it raised the perceived inconsistencies with him and observed that they raised questions about the credibility of his claims.
At [41] of its Decision Record the Tribunal noted that the Applicant’s evidence about the donation of 50,000BDT had been “vague and confusing”. From [42] – [49] the Tribunal recorded its findings about what it perceived to be other vague and inconsistent evidence given by the Applicant in relation to a number of issues.
In the result, at [50] of its Decision Record the Tribunal found in relation to the Applicant’s credibility as follows:
[50]For all the above reasons, considered cumulatively, the Tribunal does not find the applicant to be a credible, truthful and reliable witness. The Tribunal is of the view that the applicant has fabricated claims and concocted evidence to achieve an immigration outcome. On the basis of the above cumulative credibility concerns the Tribunal therefore does not accept that the applicant is a credible witness and cannot be satisfied on the evidence before it that the applicant is a truthful witness as to his claims as to why he departed Bangladesh and why he fears return.
At [51] the Tribunal recorded that it made these findings about the credibility of the Applicant after allowing “for the possibility of discrepancies arising because of genuine lapses of memory, nervousness and the manner in which responses can differ depending on the nature and manner of which a question is asked..” as well as being “sensitive to the various cultural differences that can impact on an applicant's responses to questioning…”.
Finally, at [60] of its Decision Record the Tribunal stated as follows:
[60] The Tribunal rejects the entirety of the applicant’s claims in relation to he and any of his family members being involved in or perceived to be involved in the BNP and being threatened, harmed or extorted by members of the Awami League and that he was wanted as he has not paid the outstanding donation.
In the result, at [62] – [72] of its Decision Record the Tribunal found that the Applicant was not a refugee for the purposes of the Refugees Convention criterion and that he did not face a real risk of suffering significant harm for the purposes of the complementary protection criterion and accordingly it affirmed the decision of the Delegate not to grant the Protection visa to the Applicant.
Grounds of Attack on Tribunal Decision in this Court
The Applicant relied upon the following Grounds in his Application:
1. The Administrative Appeals Tribunal officer erred in law to come to a decision dismissing my application not finding that the Department of Immigration and Border Protection did not consider that I was a victim of persecution for my political belief as an activist of Bangladesh Nationalist Party prior to my departure from Bangladesh.
2. The Honorable Administrative Appeals Tribunal officer did not find that there was lack of procedural fairness in the decision of the Department of Immigration and Border Protection to consider that I was physically abused for my 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 error to find that the Department of Immigration and Border Protection 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.
4. The Administrative Appeal Tribunal officer erred in not finding that the DIBP 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.
5. The Administrative Appeals Tribunal officer erred in not finding that the DIBP refused my application on the ground that I would face punishment would be completely politically motivated.
At the hearing I pointed out to the Applicant that his Grounds seemed to be based upon an assumption that the Tribunal was actually engaged in judicial review of the decision of the Delegate, rather than giving its own decision de novo. This Court of course has no jurisdiction to review any alleged error in the “primary decision” of the Delegate: s.476 of the Act. With the agreement of Mr Hutton, who appeared for the Minister, I informed the Applicant that I would take his Grounds, where rationally possible, as asserting that the decision of the Tribunal was affected by jurisdictional error.
Consideration
Ground 1
First, there is no evidence that the Applicant ever claimed to be “an activist” of the BNP prior to his departure from Bangladesh. In his entry interview on 5 April 2013 he had said that Rusina was involved with the BNP but that he himself was not engaged, and that he had never had any involvement with a political party. In [3] of his Statutory Declaration he had said that his family had always supported the BNP and that he personally supported the BNP and had always voted for them in national, union and local elections and believed that the BNP ran Bangladesh well when it was in power. There was no suggestion in the solicitor’s written submissions that the Applicant was actively involved with the BNP but rather that it was Rusina who “was very actively involved” with the BNP and “as a consequence, the Applicant was required to manage Rusina’s business”.
Second, the Applicant’s claims in relation to his support of the BNP were recorded by the Tribunal at [26] – [27] of its Decision Record, but rejected at [48], [54] and [60].
In my view, Ground 1 merely invites impermissible merits review of the Tribunal’s decision and does not establish jurisdictional error.
Ground 2
Taking this Ground as an allegation that the Tribunal did not afford to the Applicant procedural fairness, it is not made out and fails to establish jurisdictional error.
The Applicant was invited to attend a hearing before the Tribunal, which he did, having first been invited by letter dated 15 October 2014 to provide further material or written arguments for the Tribunal to consider, which he did not. Further, the Decision Record of the Tribunal indicates that he was given a proper and meaningful opportunity to make his claims to the Tribunal.
Ground 2 fails to establish that the decision of the Tribunal was affected by jurisdictional error.
Ground 3
This Ground appears to argue with the credibility findings of the Tribunal.
It is of course the case that credibility findings of the Tribunal are not beyond judicial scrutiny. Credibility findings remain “findings of fact the same as any other fact”: CPW16 v Minister for Immigration & Border Protection [2017] FCA 1210 at [15] per Flick J. However, in this case I do not consider that the findings of the Tribunal in relation to the Applicant’s credit, or otherwise, could be said to be unreasonable, without a logical, rational or probative basis or founded on objectively minor matters. Nor could they be regarded as “blanket, reflex or exaggerated adverse credit findings”: AZU15 v Minister for Immigration & Border Protection (2016) 240 FCR 143 per Allsop CJ, Kenny and Bromwich JJ at 145 [11]. Rather, they seem to me to be findings which were legally open to the Tribunal on the material before it. In my view the Tribunal has performed its statutory task of undertaking a review by reference to the merits of the claims made by the Applicant before the Tribunal, but in the result found against him based on credibility findings which in the circumstances were open to it. The Decision Record of the Tribunal appears to constitute a comprehensive, detailed and reasoned consideration of the Applicant’s claims.
Otherwise, this Ground seeks to invoke a merits review of the findings of the Tribunal. However, the weight that the Tribunal gives to the evidence before it is a matter for the determination of the Tribunal: see SZFWB v Minister for Immigration & Citizenship [2007] FCA 167 per Kenny J at [42] and SZQAU v Minister for Immigration & Citizenship [2011] FCA 1243 at [13] where Flick J said:
[13] The making of findings of fact, and the weight to be given to the evidence in the course of making those findings, are matters entrusted to the Tribunal alone. …
Ground 3 fails to establish jurisdictional error.
Ground 4
This Ground invites impermissible merits review of the decision of the Tribunal and simply argues with its findings adverse to the Applicant and fails to establish jurisdictional error.
Ground 5
This Ground also merely argues with the findings of the Tribunal and invites impermissible merits review and fails to establish jurisdictional error.
Otherwise, leaving aside the pleaded Grounds, I record that Mr Hutton, appearing for a model litigant, advised the Court that the Minister was unable to discern that the decision of the Tribunal was affected by any other arguable jurisdictional error and nor can I.
Conclusion
The Applicant has failed to establish that the decision of the Tribunal is affected by jurisdictional error and the Application filed in this Court is to be dismissed.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Date: 18 April 2019
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