BCM16 v Minister for Home Affairs
[2019] FCA 1955
•19 November 2019
FEDERAL COURT OF AUSTRALIA
BCM16 v Minister for Home Affairs [2019] FCA 1955
Appeal from: Application for extension of time: BCM16 v Minister for Home Affairs & Anor [2019] FCCA 1387 File number: QUD 377 of 2019 Judge: RANGIAH J Date of judgment: 19 November 2019 Catchwords: MIGRATION – review of Federal Circuit Court’s refusal to extend time – where Tribunal found birth certificate provided by applicant to be bogus – where applicant alleges actual or apprehended bias – application dismissed Legislation: Judiciary Act1903 (Cth) ss 39B
Migration Act 1958 (Cth) ss 65(1), 91WA(1), 477(1), 477(2) and 476A(3)
Cases cited: Tang v Minister for Immigration and Citizenship (2013) 217 FCR 55 Date of hearing: 19 November 2019 Registry: Queensland Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 15 Counsel for the Applicant: The Applicant appeared in person Solicitor for the First Respondent: Ms K Reid of Clayton Utz Counsel for the Second Respondent: The Second Respondent filed a submitting notice ORDERS
QUD 377 of 2019 BETWEEN: BCM16
Applicant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
RANGIAH J
DATE OF ORDER:
19 NOVEMBER 2019
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The applicant pay the first respondent’s costs of the application.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(DELIVRED EX TEMPORE AND REVISED)RANGIAH J:
The applicant has purported to apply for an extension of time to appeal against a judgment of the Federal Circuit Court of Australia given on 13 May 2019.
The primary judge refused to extend the time to apply for review of a decision of the Administrative Appeals Tribunal (the Tribunal) to refuse to grant the applicant a Protection (Class XD) visa. The applicant filed his application in the Federal Circuit Court some six months outside the 35 day time limit provided under s 477(1) of the Migration Act 1958 (Cth) (the Act).
The decision of the Federal Circuit Court to refuse to extend time was made under s 477(2) of the Act. Section 476A(3)(a) of the Act provides that an appeal may not be brought from a judgment of the Federal Circuit Court that refuses to make an order under s 477(2).
However, an application for review of a decision made under s 477(2) may be brought under s 39B of the Judiciary Act1903 (Cth): Tang v Minister for Immigration and Citizenship (2013) 217 FCR 55 at [11]. In order to succeed the applicant must demonstrate jurisdictional error affecting the judgment of the Federal Circuit Court: Tang at [11]. I propose to treat the applicant’s application as an application under s 39B of the Judiciary Act.
The applicant is a citizen of Bangladesh, who arrived in Australia in 2013. The applicant was refused a protection visa on 21 January 2015 and that decision was subsequently affirmed by the Tribunal. The Tribunal’s decision was quashed by consent in the Federal Circuit Court, and the Tribunal was required to consider the application again. On 5 March 2018, the Tribunal again decided to refuse to grant the applicant a protection visa. That was the decision the subject of the application before the Federal Circuit Court.
Before the Tribunal, the applicant claimed to have been a supporter of the Bangladesh National Party and to have been threatened by supporters of the rival Awami League in 2010 and again in 2013. He claimed to have fled Bangladesh as a result of the threats.
The Tribunal noted that the applicant had provided a document purporting to be a birth certificate. The Tribunal concluded that the document was bogus. The Tribunal found that the applicant did not have a reasonable explanation for providing the bogus document as evidence of his identity.
I will treat the applicant’s proposed grounds of appeal as his grounds of review. Those grounds are:
1.The judge of the Federal Circuit Court in his honourable judgement delivered on the 13 May 2019 failed error of law and relief under the judiciary Act. He failed to find that the Immigration Assessment Authority AA T has not found any evidence in relation to my claims and thus its decision influenced by sufficient doubt.
2.Honourable Judge failed to hold that the AAT made an error of law when it did not take up and separately deal with the factual issues. The AA T failed to find low profile political activists are mostly persecuted because of their role for the party like BNP. The AAT failed to understand the persecution until political killing in Bangladesh under present dictatorial role in Bangladesh. The AAT member concluded that I will not suffer from any harm if I go to Bangladesh, which is not feasible.
3.I was denied procedural fairness when the AAT member made opinion based on assumption and possibilities without any proper investigation. The AAT failed to assess the current situation in Bangladesh where thousands BNP workers arc arrested and killed by so called crossfire and harassed by the autocratic present Awami League Government & the Authority. In assessing danger to me, the AAT undermined the danger I will face if I am compelled to return Bangladesh as returned asylum seeker. And also, I came by boat in Australia only protect my life.
4.Besides, the Immigration Assessment Authority did not follow the proper procedure as required by the Act in arriving its decision in deciding my protection visa merit review application. Thus, the procedures that were required by the act or regulations to be observed, in connection with the making of the decision were not observed.
(Errors in original.)
In the hearing before this Court, the applicant was self-represented. He appeared with the assistance of an interpreter. He filed written submissions. His oral submissions consisted of asserting that the birth certificate was not bogus. He said that the document had to be translated from Bengali to English. He said that there were errors in the translation. He said that he later provided a correctly translated birth certificate to the Tribunal.
The difficulty with the applicant’s grounds, as pleaded, is that they assert error by the primary judge in failing to find jurisdictional error on the part of the Tribunal, but do not engage with the basis of the Tribunal’s decision. The Tribunal found that s 91WA(1) of the Act was engaged because the applicant had provided a bogus document and did not have a reasonable excuse for providing, or causing to be provided, the bogus document. The Tribunal was then required under s 65(1) and 95WA(1) to refuse to grant the visa. The Tribunal did not proceed to make findings upon the merits of the application for review. The grounds pleaded by the applicant assert errors concerning matters that the Tribunal did not, and was not required to, engage with. The grounds do not raise any basis for finding jurisdictional error on the part of the Tribunal.
The applicant has provided written submissions in which he alleges actual and apprehended bias on the part of the Tribunal. There is no evidence capable of substantiating these allegations.
The appellant’s submissions allege that the Tribunal ignored information, denied him procedural fairness, and failed to apply the correct test for complementary protection. These allegations are unparticularised and cannot succeed.
The appellant also alleges that the Tribunal refused to allow him an adjournment when he fell sick during the hearing. The appellant has not provided any evidence in support of this claim or any detail of the alleged sickness or its consequences. That ground cannot succeed.
In his oral submissions the appellant alleged that the birth certificate was not, in fact, bogus, and was the product of incorrect translation of a document written in Bengali. Those claims were rejected by the Tribunal. This Court is not permitted to second-guess the Tribunal’s findings of fact. It can only act upon any jurisdictional error that is established.
For these reasons, the application cannot succeed. The application will be dismissed with costs.
I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rangiah. Associate:
Dated: 22 November 2019
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