AZY16 v Minister for Immigration

[2016] FCCA 2494

FEDERAL CIRCUIT COURT OF AUSTRALIA

AZY16 & ORS v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2494

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Protection (Class XA) (subclass 866) visas – whether the Tribunal failed to take into account the applicants’ genuine fear of persecution – whether there was a denial of procedural fairness by the Tribunal – no jurisdictional error identified – application dismissed. 

Legislation:

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

First Applicant: AZY16

Second Applicant: AZZ16

Third Applicant: BAA16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1058 of 2016

Judgment of: Judge Street

Hearing date: 27 September 2016

Date of Last Submission: 27 September 2016

Delivered at: Sydney

Delivered on: 27 September 2016

REPRESENTATION

Solicitors for the Applicants: The First and Second Applicants appeared in person.

Solicitors for the Respondents: Ms B Griffin
Australian Government Solicitor

ORDERS

1. The application is dismissed.

2. The First and Second Applicants pay the costs of the First Respondent fixed in the amount of $4,300.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1058 of 2016

AZY16

First Applicant

AZZ16

Second Applicant

BAA16

Third 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 Tribunal made on 28 March 2016 affirming a decision of the delegate not to grant the applicants’ protection visas.  The first and second applicants are husband and wife and the third applicant is their son who is a child. 

2. The applicants were found to be citizens of Bangladesh and their claims were assessed against that country.  The applicants claim fear of harm by reason of their conversion to Christianity, and claim to fear harm from the Jamaat-e-Islami and as a result of problems with a particular person, as well as from Muslims generally. The second applicant alleged that the particular person abducted, tortured and raped her. 

3. The applicants arrived in Australia on 21 November 2013 on Visitor (Class FA) Visitor (Subclass 600) visas. The first and second applicants lodged an application for onshore Protection (Class XA) (subclass 866) visas on 10 December 2013, as the (Visitor (Class FA) Visitor (Subclass 600) visas would otherwise have expired on 21 December 2013. 

The Delegate’s Decision

1. The delegate made reference to the fears of the first and second applicants due to Muslim extremists on account of their conversion from Islam to Christianity. The delegate did not accept that the applicants had converted to Christianity and found that the applicants did not have a well-founded fear of persecution as defined under the Refugees Convention. The delegate found that there were no 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 that the applicants will suffer significant harm. 

The Tribunal’s Decision

1. The applicants applied for review on 21 October 2014. By letter dated 15 December 2015, the applicants were invited to attend a hearing on 29 January 2016.  The first and second applicants appeared on that date to give evidence and present submissions.  Prior to the hearing date, the applicants’ representative provided submissions to the Tribunal dated 16 December 2014 which were summarised in the Tribunal’s reasons. The Tribunal summarised the relevant law which was set out in an attachment to, and incorporated in, the reasons of the Tribunal. The Tribunal summarised the applicants’ claims and evidence. 

2. The Tribunal summarised what occurred at the hearing and in particular, the evidence given, that prior to the applicants leaving Bangladesh, they had been living at the same address for four or five years. The Tribunal found that this cast doubt on the applicants’ credibility in relation to the incidents that the applicants alleged occurred. The Tribunal accepted that the applicants were Christians however, the Tribunal did not accept the evidence advanced that the applicants’ conversion to Christianity was totally unacceptable in Bangladesh.  The Tribunal did not accept on the evidence before it that the applicants were having the problems they claimed to have before they left Bangladesh either because of the particular person or, more generally because they were Christians or Christians who converted from Islam.

3. The Tribunal did not accept that the second applicant was abducted, tortured and raped by a particular person, nor that people from the Jamaat-e-Islami or Muslims more generally, had threatened to kill the applicants before they left Bangladesh.  The Tribunal made reference to the fact that whilst conversion to Christianity may give rise to some community prejudice, the Tribunal did not accept on the evidence before it that such community prejudice amounts to persecution for the purposes of the Refugees Convention.  The Tribunal did not accept on the evidence before it, that there was a real chance the applicants would be killed, or otherwise persecuted for reasons of their religion, or any political opinion which may be imputed to them, or as a result of their conversion if they return to Bangladesh. 

4. The Tribunal did not accept that the current instability and political unrest in Bangladesh creates a further potential harm and persecution for the applicants for any Refugee Convention reason.  The Tribunal did not accept that the first applicant was involved in anti-government activities in Bangladesh, nor that the first applicant had problems with the government agencies, nor that he suffered deprivation of rights and opportunities over many years, as submitted to the Tribunal. The Tribunal did not accept on the evidence before it that the applicants had a well-founded fear of persecution for one or more of the Refugee Convention reasons if they return to Bangladesh now, or in the reasonably foreseeable future. 

5. The Tribunal was also not satisfied on the evidence before it, that 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 that they will suffer significant harm as defined in s.36(2A) of the Act. The Tribunal found that the requirements of s.36(2) of the Act were not met and affirmed the decision of the delegate.

Proceedings Before this Court

1. On 16 June 2016, a Registrar of the Court made orders, providing the applicants with an opportunity to file an amended application, affidavit evidence and submissions. The applicants did file submissions which in substance summarised the applicants’ claims and maintained an assertion of the applicants’ fears if they returned to Bangladesh.

2. The grounds in 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 Department of Immigration and Border Protection did not consider that I was a victim of persecution for my religious belief (Christianity) 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 and my was raped 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.

3. At the commencement of the hearing, the Court explained to the applicants that the hearing was to determine whether the Tribunal’s decision was affected by relevant legal error. 

4. The Court explained that if the Court was satisfied the Tribunal’s decision was affected by relevant legal error, the decision would be set aside and sent back for further hearing.  The Court explained that if the Court was not satisfied the Tribunal’s decision was affected by relevant legal error, the application would be dismissed.  The Court explained that the relevant legal error had to be either an excess of statutory power by the Tribunal, or a denial of procedural fairness to the applicants.  The Court explained that in summary, this meant the Court was considering whether the Tribunal’s decision was unlawful or whether the Tribunal’s decision was unfair. The Court explained that it would have identified the evidence, then hear submissions from the applicants, then hear submissions from the solicitor for the first respondent and then hear submissions from the applicants in reply. 

5. The first applicant, on behalf of the applicants, confirmed that he understood what had been said by the Court.  From the bar table, the first applicant maintained his fear of harm if he and his family were returned to Bangladesh.  The first applicant maintained that he came to Australia because of his fears and it would not be safe for his family to return to Bangladesh. 

6. The solicitor for the first respondent submitted that the written submissions of the applicant invited an impermissible merits review and did not identify any jurisdictional error.  The solicitor for the first respondent submitted that the grounds in the application, in substance, sought to cavil with the adverse findings made by the Tribunal and submitted that the adverse findings were open and that the grounds failed to identify any jurisdictional error. 

7. The solicitor for the first respondent submitted in relation to Ground 3, that there was no claim by the applicant advanced, that he would be imprisoned if returned to Bangladesh. The solicitor for the first respondent submitted that the applicants’ claims in relation to torture, fear of persecution, and fear arising out of political belief were all the subject of adverse findings by the Tribunal. 

8. The solicitor for the first respondent submitted that the Tribunal complied with its statutory requirements during the conduct of the review.  From the bar table, the first applicant maintained that he was persecuted and that the country information was not accurate in relation to the circumstances he and his family faced. The first applicant maintained that Bangladesh was a Muslim country and that he and his family would be persecuted. 

9. The second applicant then indicated that she wished to say something to the Court.  The Court explained to the second applicant that she was a party to the proceedings and explained, again, that the Court was considering whether the Tribunal’s decision was unlawful or unfair. 

10. The second applicant submitted that she had not lied to the Tribunal and that the nature of the allegations advanced were ones upon which should have been believed by the Tribunal. The Court explained that this Court does not have power to revisit the merits of the applicants’ claims.  This Court’s power is confined, as was explained to the applicants at the commencement of the hearing. This Court cannot make fresh findings of fact.

11. This is not a case where the Tribunal disbelieved everything said by the applicants, as the Tribunal, in fact, accepted that the applicants had converted to Christianity.  The Court raised with the first applicant, that there can be circumstances in which the findings by the Tribunal are irrational or illogical, which gives rise to relevant legal error. 

12. The Court explained its concern that the fact that the applicants have continued to live at the same address for some substantial period of time provided, on its face, a rational foundation for the Tribunal’s reasoning in relation to the applicant’s claims and the adverse findings on credit.

13. Nothing said in the written submissions, on behalf of the applicant, identify any jurisdictional error by the Tribunal.  On the material before the Court, it is apparent that the Tribunal correctly identified the applicant’s claims and evidence and made adverse findings that were open to the Tribunal on the material before the Tribunal. 

14. I accept the first respondent’s submission that the written submissions in substance, invite an impermissible merits review by the Court.  Nothing in the written submissions identifies any jurisdictional error. 

15. In relation to Ground 1 of the application, it is apparent that the Tribunal took into account the first applicant’s claims concerning his alleged persecution for his religious beliefs. The Tribunal made adverse findings that were open to the Tribunal for the reasons given by the Tribunal.  Ground 1 fails to make out any jurisdictional error.

16. In relation to Ground 2 of the application, it is apparent from the Tribunal’s reasons that the issue of the applicant’s credit was raised in the course of the review, quite apart from that having been a live issue before the delegate. The Tribunal complied with its statutory obligation to invite the applicants to attend a hearing and it is apparent that the Tribunal provided the applicants a real and meaningful opportunity to give evidence and present arguments.

17. On the face of the material before the Court, the Tribunal complied with its statutory obligations in the conduct of the review.  On the face of the material before the Court, there was no denial of procedural fairness in the conduct of the review. The first applicant’s desire to maintain that what he said was the truth does not identify any denial of procedural fairness by the Tribunal and does not identify any jurisdictional error.

18. For the reasons given, the adverse credit findings were open to the Tribunal. Ground 2 fails to make out any jurisdictional error.

19. Ground 3 is in substance, a disagreement with the adverse findings by the Tribunal.  I accept the submission of the first respondent that the claim that the applicant would be imprisoned upon return to Bangladesh was not a claim that was made by the applicants before the Tribunal and was not a claim that arose on the material before the Tribunal.

20. The first respondent submitted that there was no reference to the applicant claiming he would be imprisoned and tortured if returned to Bangladesh. I accept that submission. No such claim was made on the material before the Tribunal in relation to the first applicant and no such claim arose on the face of the material before the Tribunal.

21. Whilst there was reference to the second applicant being tortured by a particular person, that was an incident that the Tribunal rejected by reason of adverse credit findings. Those adverse credit finding in relation to the second applicant, were open for the reasons given by the Tribunal and cannot be said to lack an evident and intelligible justification. 

22. Equally, the adverse credit finding by the Tribunal in relation to the first applicant, was for the reasons given, open and cannot be said to lack an evident and intelligible justification. The Tribunal referred to the applicant’s claims and evidence and gave reasons in support of the limited weight of particular documents. It was a matter for the Tribunal what country information it accepted. Ground 3 fails to make out any jurisdictional error. 

23. Ground 4 is in substance, a disagreement with the adverse finding made by the Tribunal. That adverse finding was open for the reasons given. Ground 4 fails to make out any jurisdictional error. 

24. Ground 5 is also, in substance, a disagreement with the adverse findings by the Tribunal. The Tribunal took into account the claim of feared harm by reason of political opinion, or imputed political opinion.  Ground 5 fails to make out any jurisdictional error. 

25. What was said by the applicants from the bar table, was again, an invitation to this Court to engage in an impermissible merits review, which this Court has no power to do. Nothing said by the applicants from the bar table identified any jurisdictional error by the Tribunal. 

26. As indicated, the adverse credit findings by the Tribunal were open to the Tribunal and this Court does not have power to make fresh findings of fact in relation to the applicant’s claims and evidence.  The application fails to make out any jurisdictional error. 

27. The application is dismissed.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 14 October 2016