BAQ16 v Minister for Immigration

[2018] FCCA 1736

FEDERAL CIRCUIT COURT OF AUSTRALIA

BAQ16 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1736

Catchwords:
MIGRATION – Application for review of Administrative Appeals Tribunal decision – no jurisdiction to review the Minister’s delegate’s decision – whether the Tribunal erred in finding that the applicant was not a victim of political persecution – whether the Tribunal failed to provide procedural fairness – credibility finding – no jurisdictional error revealed – application dismissed.

Legislation:
Migration Act 1958 (Cth), s.476

Cases cited:
Zubair v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 248; (2004) 139 FCR 344; (2004) 211 ALR 261; (2004) 80 ALD 534
Minister for Immigration & Multicultural & Indigenous Affairs v Ahmed [2005] FCAFC 58; (2005) 143 FCR 314
SZGME v Minister for Immigration and Citizenship [2008] FCAFC 91; (2008) 247 ALR 467
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407; (2000) 74 ALJR 405
Kopalapillai v Minister for Immigration and Multicultural Affairs [1998] FCA 1126; (1998) 86 FCR 547
CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 70 AAR 413
Randhawa v Minister for Immigration, Local Government & Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437; (1994) 124 ALR 265; (1994) 35 ALD 1

Applicant: BAQ16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1093 of 2016

Judgment of: Judge Nicholls

Hearing date: 7 May 2018

Date of Last Submission: 7 May 2018

Delivered at: Sydney

Delivered on: 7 May 2018

REPRESENTATION

Applicant: In person

Solicitors for the Respondents: Mr M Gao of Australian Government Solicitor

ORDERS

1. The application made on 4 May 2016 is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $3,800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1093 of 2016

BAQ16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore; Revised from Transcript)

1. I have before me today an application made pursuant to s.476 of the Migration Act1958 (Cth) (“the Act”), filed on 4 May 2016 seeking review of the decision of the Administrative Appeals Tribunal (“the Tribunal”), which on 6 April 2016, affirmed the decision of the Minister’s delegate (“the delegate”) to refuse a protection visa to the applicant.

2. In evidence before the Court is a bundle of relevant documents filed tendered by the Minister (“the Court Book” – “CB”, “RE1”). 

3. The applicant also sought that his affidavit made on 30 November 2016 be read into evidence. In essence, the affidavit sought to put before the Court certain documents, these being letters from the Secretary of the Bangladesh Nationalist Party (“BNP”) in Australia, and translations of other documents containing information about the BNP committee in Bangladesh.

4. The Minister objected to the affidavit, and its annexure, being read into evidence on the basis of relevance. I agreed with the Minister’s objection for, essentially, two reasons. One, the documents all post-dated the date of the Tribunal’s decision. That can be easily ascertained by what is, relevantly, written on the face of all the documents. In terms of the list of BNP members, the relevant translation post-dates the Tribunal decision.

5. Second, there is no evidence that the documents were before the Tribunal during the conduct of the review, and at the time it made its decision. They are, therefore, not relevant to a fact in issue before the Court today. 

6. In any event, it is also clear from what is written in the documents that their only purpose could be to press the applicant’s protection visa claims, not any legal error on the part of the Tribunal.  As I sought to explain to the applicant, the only relevant task for the Court is whether in making its decision, the Tribunal made a “legal mistake” (jurisdictional error). Further, the Court has no power to grant him a protection visa. 

7. The relevant background to this case has been fairly summarised at [4] of the Minister’s written submissions.  For the sake of convenience, I have regard to, and adopt what is set out as background there by the Minister, which is as follows:

   “The applicant is a citizen of Bangladesh who arrived in Australia on 6 May 2013 as an Irregular Maritime Arrival: Relevant Documents (RD) 20. On 16 August 2013, the applicant lodged an application for a Protection visa with the then Department of Immigration and Citizenship (the Department): RD 1. On 14 November 2014, the delegate refused the applicant’s visa application: RD 78. On 8 December 2014, the applicant applied for review of the delegate’s decision by the Tribunal: RD 97. On 6 April 2016, the applicant appeared before the Tribunal to give evidence and present arguments: RD 110. On the same day, the Tribunal affirmed the delegate’s decision.”

8. On the evidence before the Court, the applicant claimed to fear harm in Bangladesh because he and his family were members of the BNP and that in the middle of 2011 he was physically assaulted by members of the Awami League (“AL”), who demanded money from him (CB 33 to CB 35). The BNP and the AL are major political opponents in Bangladesh.

9. As a result of this incident, he hid at his relatives’ houses before departing Bangladesh (CB 34). In his claims for protection, the applicant stated that he would be harmed in Bangladesh because of his political beliefs and membership of a number of particular social groups. These appear to have been described as follows. First, as “individuals who have held information…adverse to the interests of the [AL]” ([18] at CB 35). That “information” is the witnessing of “corrupt” behaviour by members of the AL. Second, as “business owners” who have links with the BNP who are vulnerable to extortion ([19] at CB 35).

10. The delegate found that the applicant was not a credible witness.  That is, the delegate found that the applicant could not be believed in critical aspects of his claims.  The delegate set out findings which, in essence, the delegate said showed numerous inconsistencies in the applicant’s claims. The delegate comprehensively rejected the factual bases upon which the applicant claimed to fear harm (CB 89 to CB 92). 

11. The applicant then applied to the Tribunal for review of the delegate’s decision. The applicant appeared at a hearing before the Tribunal on 6 April 2016 to give his evidence and make submissions (CB 97 to CB 103 and CB 110 to CB 112). As I said earlier, the Tribunal found adversely to the applicant, and affirmed the delegate’s decision.

12. The Minister has set out, in his written submissions at [7] – [9], a summary of the analysis and findings made by the Tribunal.  In my view, the Minister’s summary is a fair summary of what the Tribunal has set out in its decision record. In that light, and for the sake of convenience, given that I am delivering my judgment orally, I adopt, for the purposes of this judgment, what the Minister has written, as follows:

    “[7] The Tribunal found that the applicant was not a credible witness and the account of events on which his protection claims were based was false: RD 120 at [25]. In particular, the Tribunal noted that the applicant gave inconsistent evidence on:

    7.1. the harm he suffered in Bangladesh, such as the circumstances under which he was attacked by members of the AL and the number of times he was attacked by those people: RD 117-119 at [8]-[15]

    7.2. whether members of the AL visited his family home after he fled his village: RD 119 at [16]-[17]

    7.3. the activities he undertook in supporting the BNP: RD 119 at [18]-[20]

    7.4. his family’s support for the BNP: RD 120 at [21]-[24].

    [8] In light of its adverse credibility finding, the Tribunal comprehensively rejected the applicant’s claims for protection. The Tribunal noted the applicant’s evidence that he had scars on his body as a result of the harm he suffered in Bangladesh. However, the Tribunal found that there was no credible evidence before it on how those scars had been sustained: RD 120-121 at [25]-[28].

    [9] In light of its findings, the Tribunal found that it was unnecessary to determine the applicant’s claim of fearing harm in Bangladesh on the basis of his membership of particular social groups: RD 121 at [29]. The Tribunal was not satisfied that the applicant was a person in respect of whom Australia had protection obligations either under s 36(2)(a) or s 36(2)(aa) of the Act: RD 121-122 at [31]-[34].”

13. The applicant then applied to this Court for review of the lawfulness of the Tribunal’s decision.

14. On 16 June 2016 a Registrar of this Court made a number of orders for the progress of the applicant’s case. Relevant to today’s purposes, the applicant was given the opportunity to file any amended application and any written submissions in explanation of the grounds of his application.  Nothing further has been filed by the applicant.  As I have previously indicated, the Minister has filed written submissions. 

15. There are five stated grounds of the application to the Court. They are in the following terms:

    “[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 Inmigration 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 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.”

    [Errors in the original.]

16. At the final hearing of the application, the applicant appeared in person.  He was assisted by an interpreter in the Bengali language. A solicitor appeared on behalf of the Minister. 

17. When given the opportunity to address the grounds of the application to the Court, the applicant stated that he was not involved in the drafting of the grounds. Further, his words to the Court were, “I was not there”. I understood this to mean he was “not there” when the grounds were drafted. 

18. He explained that he had asked “someone”, whom he then said was a lawyer, to draft the grounds of the application for him. He submitted that he did not know what was written in the grounds of the application. Therefore, he could not assist the Court further. When asked whether he had anything else he wanted to say to the Court, he stated that there was “nothing” further to say.

19. Turning to each of the grounds of the application. To the extent that the grounds seek review of the delegate’s decision, it is clear in the circumstances of this case, that the Court has no jurisdiction to review the delegate’s decision. The Court’s jurisdiction to review migration decisions is given to this Court pursuant to s.476 of the Act. Section 476(2)(a) of the Act provides that this court has no jurisdiction in relation to a “primary decision”.

20. A “primary decision” is defined in that section (at s.476(4) of the Act). Relevantly, it is a decision that is reviewable under Part 7 of the Act. The delegate’s decision in this case was not only reviewable, it was, in fact, reviewed by the Tribunal. It is, therefore, a primary decision. Therefore, this Court has no jurisdiction to review it.

21. To the extent that the grounds assert that the Tribunal did not find that there were various errors in the delegate’s decision, it is important to note the following.  It is the case that the Tribunal was statutorily required to review the delegate’s decision. However, in doing so, the Tribunal is also required to make its own findings of fact based on its own analysis of the material that is before it.

22. I note further that even if there had been some error, or defect, in the delegate’s decision, any decision made afresh by the Tribunal would serve to cure any such defect (of course, on the basis the Tribunal did not make the same legal error) (Zubair v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 248; (2004) 139 FCR 344; (2004) 211 ALR 261; (2004) 80 ALD 534, Minister for Immigration & Multicultural & Indigenous Affairs v Ahmed [2005] FCAFC 58; (2005) 143 FCR 314 and SZGME v Minister for Immigration and Citizenship [2008] FCAFC 91; (2008) 247 ALR 467). In this light, therefore, the grounds of the application should be read that the various errors that are asserted, are errors made by the Tribunal in its conduct of the review and in its analysis and findings.

23. In that light, ground one is understood to assert that the Tribunal erred in finding that the applicant was not a victim of political persecution.

24. On its own, and in the absence of any explanation and, indeed, in light of the evidence that is before the Court, the ground simply seeks to express a grievance with what the Tribunal has decided. It really asks the Court to intervene, and review the merits of the Tribunal’s decision, rather than its lawfulness. 

25. As is clear, the Tribunal rejected the applicant’s claims because it made an adverse finding as to his credibility.  As with the delegate, the Tribunal found that the applicant was not to be believed.  The Tribunal explained that credibility finding with reference to a number of other findings that it had made in relation to the applicant’s claims and evidence.

26. The Tribunal found that the applicant had given inconsistent and conflicting evidence in relation to the central parts of his claims to fear harm.

27. On what is before the Court, the Tribunal’s adverse conclusion as to the applicant’s credibility, and the various findings that informed it, were all reasonably open to the Tribunal to make on what had been put before it.

28. Importantly, the Tribunal gave cogent reasons for each of its findings, and these were all probative of what had been put before it (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407; (2000) 74 ALJR 405, Kopalapillai v Minister for Immigration and Multicultural Affairs [1998] FCA 1126; (1998) 86 FCR 547 and CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 70 AAR 413).

29. In reality, ground one does not rise above a request for the Court to engage in impermissible merits review, and it is, therefore, not made out. 

30. Ground two, again when viewed in light of what I said earlier, asserts a lack of procedural fairness on the part of the Tribunal. Again, I took this to mean that the Tribunal breached, or failed, to provide procedural fairness to the applicant.  However, when what is written in ground two is considered in light of the material before the Tribunal, and the Tribunal’s analysis and findings, it is clear that the applicant’s complaint is no more than a grievance that the Tribunal did not find that he had been physically attacked due to his political beliefs.

31. As I said earlier, the Tribunal rejected the applicant’s factual account to fear harm because of its adverse credibility finding.  In that light, and having regard to the totality of the Tribunal’s decision record, ground two is no more than a request for the Court to intervene and conduct a review of the merits, as opposed to the lawfulness, of the Tribunal’s decision.  No jurisdictional error arises in relation to ground two.

32. Ground three again seeks to attack the Tribunal’s credibility finding and the consequent rejection of the applicant’s claims to fear harm because of his political beliefs. However, in ground three, the basis of this complaint is said to be that the applicant provided, “all relevant documents and evidences”. 

33. Again, on what is before the Court, I find that the Tribunal did take into account all of the applicant’s evidence, both oral and written.  There is nothing before the Court to indicate that the Tribunal failed to deal with a claim to fear harm, either expressly made by the applicant, or clearly arising in the circumstances presented. 

34. What is left is that, in reality, the complaint in ground three is that the Tribunal did not accept the applicant’s claims, not that it did not consider those claims.  The applicant may assert that he is a credible witness and that he presented all his documents and evidence.  However, the Tribunal found, having regard to all of the documents and evidence, that he was not credible, and it gave intelligible reasons for that finding, probative of the evidence before it.  In that light, it is not appropriate for the Court to intervene to change those findings made by the Tribunal. 

35. I should also note that the applicant suggests in ground three that he was “credible”. The Tribunal is not obliged to believe anything or, indeed, everything that an applicant says to it.  Just because an applicant says, “I am telling the truth” does not mean that the Tribunal has to uncritically accept that statement (Randhawa v Minister for Immigration, Local Government & Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437; (1994) 124 ALR 265; (1994) 35 ALD 1 at 451 per Beaumont J).

36. As I sought to explain to the applicant, it is a very important part of the Tribunal’s task to give the applicant every opportunity to explain his claims, and to give his evidence. Further, it must consider all of the claims. But it does not have to accept those claims simply because an applicant says, “I have given you documents, and I am credible”.  In the current case, as I have said before, the Tribunal gave reasons for its findings that arose from the material before it. It explained its decision in an intelligible, cogent and reasonable fashion. 

37. Grounds four and five are similar in their approach to ground three, and, therefore, what I have said in relation to ground three applies to grounds four and five. At best, they seek to repeat, albeit in a different way, what the applicant had put, generally, in relation to grounds one, two and three. 

38. Those grounds also do not reveal jurisdictional error or any “legal mistake” in the Tribunal’s decision.  There is no jurisdictional error in the Tribunal’s decision arising from any of the grounds of the application, nor, it must be said, having considered the material before the Court, and the Tribunal’s reasoning, can I otherwise see that any other jurisdictional error may be available for the applicant to argue.

39. It is appropriate that the application to the Court be dismissed. I will make that order. 

40. I should add that this appears to be yet another case of an unrepresented applicant who has sought assistance from what appears to be a number of people in the community who are engaged in providing, it must be said, formulaic grounds for applicants to put in their applications to the Court. In this case I accept, and there is no reason not to accept, the applicant’s submission that he paid money to these people for the drafting of these grounds.

1. It is understandable that persons who seek to remain in Australia, may have recourse to such persons, as in the current case. 

2. On the one hand, it is of concern that such applicants are being exploited by these people who clearly are of no assistance to applicants such as the applicant before me today. On the other hand, given that this applicant did have money to pay “someone”, it was always open to him to have sought the assistance of the many competent lawyers who appear regularly for applicants before this Court.

Conclusion

1. In any event, as I said to the applicant, the Court can only proceed on what applicants choose to put before the Court. On that basis, as I have said, there is no jurisdictional error arising from the grounds of his application. The application to the Court is to be dismissed.  I will make the appropriate order.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date:  2 July 2018