BCN16 v Minister for Immigration and Anor

[2017] FCCA 1504

FEDERAL CIRCUIT COURT OF AUSTRALIA

BCN16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1504

Catchwords:
MIGRATION – Application under rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) to dismiss an application for judicial review of a decision of the Administrative Appeals Tribunal – whether applicant has raised an arguable case for relief – no arguable case for relief raised – application dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.44.12(1)(a)

Migration Act 1958 (Cth), s.36(2)(aa)

Cases cited:

Minister for Immigration and Citizenship v SZMDS & Anor [2010] HCA 16;

(2010) 240 CLR 611

Town Planning Board v Society for the Protection of the Harbour Ltd [2004] 1 HKLRD 396

Applicant: BCN16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1170 of 2016

Judgment of: Judge Manousaridis

Hearing date: 22 June 2017

Date of Last Submission: 22 June 2017

Delivered at: Sydney

Delivered on: 30 June 2017

REPRESENTATION

Applicant in person assisted by an interpreter.

Solicitors for the Respondents: Ms B Rayment of
Mills Oakley Lawyers

ORDERS

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1170 of 2016

BCN16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The first respondent (Minister) seeks an order under r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) that the application for judicial review be dismissed because the application does not raise an arguable casefor the relief it seeks. By that application the applicant, a citizen of Bangladesh, seeks judicial review of a decision made by the second respondent (Tribunal) affirming the decision of a delegate of the Minister not to grant the applicant a Protection (class XA) visa (Protection visa).

Claims for Protection

1. In a statutory declaration that formed part of his application for a Protection visa,[1] the applicant claimed he left Bangladesh because he feared for his life. He claimed he is a supporter of Jamaat-e-Islami because he is a Muslim and Jamaat-e-Islami promotes Islamic values.  The applicant has six step-brothers, two of whom are supporters of the Awami League and four of whom are supporters of the Bangladesh Nationalist Party (BNP). The applicant claimed his relationship with his step-brothers is “characterised by violence” and he was beaten by his step-brothers on multiple occasions because of his being a supporter of Jamaat-e-Islami. In or around 2010 the applicant purchased his father’s business (a clothing shop) from him. After attending a lecture by the leader of Jamaat-e-Islami in the applicant’s village, two of the applicant’s step-brothers forced their way into the applicant’s shop, beat him severely, and the applicant lost consciousness. The applicant’s step-brothers also brought with them a number of other Awami League supporters who yelled abuse at the applicant and threatened him. After the incident, the applicant was very frightened. The applicant closed the shop, and stayed at home as much as possible “maintaining a low profile”.

   [1] CB77-81

2. In or around 2010 the applicant built his family home on land acquired by his father after his father invited him to build on the land. Approximately 20 days after the incident at the applicant’s shop, all six of the applicant’s step-brothers forced their way into the applicant’s house, “trashed the house”, destroyed furniture and property and kicked the applicant “off the land”. The applicant, fearing for his life, moved with his family to his father-in-law’s house. The applicant claimed that soon after he had gone into hiding at his father-in-law’s house, he was informed his step-brothers were looking for him because Awami League supporters in the village were making enquiries of the applicant’s father-in-law and his neighbours about the applicant’s whereabouts.

3. The applicant made arrangements to flee Bangladesh because he feared he will be harmed and mistreated by members of the Awami League, including his step-brothers, because of his support of Jamaat-e-Islami. The applicant claimed he is in contact with his wife and she informed him it is not safe for him to return home because Awami League supporters are still looking for the applicant.

4. The applicant supported his application with three documents. The first is an undated letter purportedly written by the applicant’s mother on a letterhead purporting to be that of a district branch of Jamaat-e-Islami;[2] the second is an undated document, the purported author of which is not stated, which stated that the applicant’s step-brothers had found and tried to kill him at his father-in-law’s place;[3] and the third is an undated letter  purporting to have been written by an unnamed elected official stating the applicant had taken shelter at his father-in-law’s house following mistreatment by his step-brothers.[4] In addition, the applicant submitted to the Tribunal what purports to be a deed of sale of the shop which the applicant claimed was sold to him by his father.[5]

   [2] CB88

   [3] CB90

   [4] CB89

   [5] CB164

Tribunal’s decision

1. The Tribunal noted the applicant’s claims had been “fairly consistent in their general nature” but referred to a number of inconsistencies which the Tribunal regarded as significant.[6]

   a)First, the Tribunal found the inconsistent evidence the applicant gave about the goods sold in his shop called into question the shop’s existence, and the Tribunal was not satisfied the applicant ever operated a shop in the Goga Bazaar. In his statutory declaration the applicant said the shop was a clothing store. Before the Tribunal and the delegate, the applicant said the shop sold cigarettes, fruit, water, juice, and paan (which the applicant said was a kind of leaf people in Bangladesh chew with betel nuts).[7]

   b)Second, the applicant gave inconsistent evidence about the date and time of the attack at his home. In his written statement, the applicant said the attack took place approximately 20 days after the attack at the shop which the Tribunal found would have been on or around 16 February 2013. The applicant, however, gave evidence before the Tribunal and the delegate that the attack occurred on 20 March 2013. Furthermore, the applicant gave evidence before the Tribunal that the attack took place at around 2pm but gave evidence before the delegate that it took place around 5 to 5.30pm.[8]

   c)Third, before the Tribunal the applicant said that after he went into hiding in his father-in-law’s house, his two youngest “half-brothers” came to his father-in-law’s house to attack him, but the applicant escaped through the window.[9] The applicant further said, however, that he was attacked in another house a couple of doors away, although still on land owned by his father-in-law. The Tribunal noted the applicant’s written claims did not mention any attack on his father-in-law’s house by his half-brothers.[10]

   [6] CB174, [35]

   [7] CB174, [36]-[38]

   [8] CB174-175, [41]-[43]

   [9] Although the applicant used the expression “step-brothers”, the Tribunal used the expression “half-brothers”.

   [10] CB175, [45]-[47]

2. Given the conflicts in evidence it identified, the Tribunal found the applicant fabricated the claims about being attacked by his half-brothers. The Tribunal found the applicant did not operate a shop in the bazaar, the applicant’s half-brothers did not assault him at a shop in the bazaar, the applicant’s half-brothers did not attack him in his home, the applicant was not forced to relocate to his father-in-law’s house, and the applicant’s half-brothers did not attack him at his father-in-law’s house.[11]

   [11] CB176, [49]-[50]

3. The Tribunal said it gave “little weight” to the four documents on which the applicant relied because: each of the documents referred to the applicant by three names, whereas the applicant is known only by first two of those three names; the letters are not dated; the authors of the three letters are not identified; the text of the first letter indicates it was written by the applicant’s mother on Jamaat-e-Islami letterhead, but the applicant did not claim his mother was a member of the Jamaat-e-Islami; and the deed of sale of the shop refers to the relatives of the applicant’s father being his “son, daughter, wife” even though the applicant did not claim he has a sister.

Grounds of Review

1. The amended application filed by the applicant on 16 August 2016 contains four grounds of application. The applicant, who is not legally represented, also relies on a ground and on submissions contained in a document titled “Applicant submission” dated 5 June 2017; and the applicant made some submissions at the hearing before me, although his submissions did not directly refer to the grounds stated in the amended application or to the ground stated in the “Applicant submission”

2. I will first deal with the grounds stated in the amended application.

Amended application

1. The first ground is (errors in original):

   The Administrative Appeal Tribunal (AAT) made a jurisdictional error when it failed to accord procedural fairness to the applicant as the Tribunal failed to understand the issue of miscommunication during interview with the First Respondent (Delegate of the Minister for Immigration).

   Particular

   As the Tribunal asked from the applicant about the interviews which had taken place earlier, and his written claims for the Protection Visa, the applicant said that he could not understand the language of Burmese Interpreter which was used for communication between the Delegate and the Applicant. The applicant speaks Bangla language and the Interpreter had very limited knowledge of Bangla Language. The applicant was unable to understand his dialect.

   The Tribunal did not believe what the applicant did not get chance to be heard at first stage before the Department. The Tribunal claims that the applicant did not raise any voice against Burmese Interpreting thus, he believed that the interview with the Department was fair and clear. The Tribunal did not take a reasonable step to understand the issue of miscommunication and based on assumption believed that the applicant did not raise any claim misunderstanding or misinterpretation. The applicant claims he became victim of miscommunication.

   The applicant claims that the Tribunal made a jurisdictional error when it misconstrued the facts about the issue of miscommunication. Forming opinion about credibility of evidence is error. There was a problem about the competence of the interpreter concerned. The applicant claims that he was denied natural justice when the hearing was not done freely and fairly.

2. This ground relies on miscommunication the applicant claimed occurred before the delegate as a result of his not understanding the Burmese interpreter. The substance of the complaint is that the Tribunal did not accept there was any miscommunication before the delegate as a result of which the Tribunal made adverse credibility findings based on that miscommunication. This does not raise an arguable case of jurisdictional error.

3. First, before the Tribunal the applicant claimed on one occasion the interpreter before the delegate was from Burma and the applicant did not understand the interpreter’s dialect. The Tribunal listened to the recording and said it was not aware of anything in the interview that suggested any significant miscommunication between the applicant and the delegate. The Tribunal also noted the applicant did not claim at the interview before the delegate he could not understand the interpreter. It is beyond argument that it was reasonably open to the Tribunal to deal with the applicant’s complaint about the interpreter before the delegate in the manner in which it dealt with that complaint. And there is nothing to suggest it was not reasonably open to the Tribunal to reach the conclusions it did reach on the basis of its hearing the audio recording of what occurred before the delegate.

4. Second, even if there was any miscommunication before the delegate, the applicant has not identified what was the subject or subjects of the claimed miscommunication. In those circumstances, it is not possible to assess the applicant’s claim that the Tribunal relied on information that was the result of miscommunication in concluding the applicant was not a witness of credit.

5. The second ground is (errors in original):

   The applicant claims that he was denied natural justice and procedural fairness when he was not given enough time through which he could expand his arguments. The Tribunal did not account this incident and nature and proceedings of entry interview.

   Applicant believes it is an error or a path leading to error, error is itself is failure to perform the statutory task imposed on the Tribunal by the Migration Act.

   In a case Minister for Immigration and Border Protection v MZYTS (2013) 136 ALD 547 at 34 Hon Judge Kenny, Griffith and Mortimer JJ stated: the task involves:

   [F]irst, correct understanding of the basis on which the visa applicant says she or he has fear of persecution in her or his country of nationality and second, a correct understanding of how, in respect of each of the bases articulated, it is to be determined whether that fear is objectively well founded.

   That task could not be lawfully undertaken without “a consciousness and consideration of the submission, evidence and material advanced by the visa applicant most likely to give the Tribunal an accurate picture of the ongoing circumstances on the ground in Zimbabwe for him if he were to be returned there”.

6. The substance of this ground is that the applicant was not given sufficient time to expand on his arguments, and therefore, was denied a reasonable opportunity to present his case. That is not reasonably arguable. There is nothing on the material that could reasonably suggest the applicant was not given a fair opportunity to say what he wished to say. Further, the applicant appeared before the Tribunal with the assistance of a representative, the applicant has filed no transcript of the hearing before the Tribunal, and the applicant has not identified the claim or evidence he was not given a fair opportunity to present.

7. The third ground is (errors in original):

   The Tribunal made a jurisdictional error when it discared all the oral and written submission without giving any solid evidence of cumulative credibility concern in the finding of reasons. The Tribunal made decision with closed mind.

   Particular:

   In the decision the AAT found that there were some inconsistency between he gave at the Tribunal hearing and his written claims and the statements he made at the protection interview at Immigration Detention Centre which was included in the Departmental file. Applicant claims that he misunderstood and responded to the questions posed by the Tribunal in a situation of nervousness and distress.

8. This ground makes two claims. The first is that the Tribunal dealt with the applicant’s claims with a closed mind. That is not arguable. It is beyond argument that the Tribunal’s reasons indicate the Tribunal correctly identified the applicant’s claims, asked the applicant questions about those claims, considered each claim, and gave reasons that were reasonably open to it for finding the applicant’s claims were not credible.

9. The second claim is that the applicant misunderstood and responded to the Tribunal’s questions in a state of nervousness or distress. That is not arguable. The ground does not identify the questions the applicant did not understand, or the answers he gave to such questions. Further, while it may be accepted the applicant may have been nervous and anxious when he was being questioned by the Tribunal, there is nothing in the Tribunal’s reasons that suggests the applicant suffered from any nervousness or distress that led to him not understanding or answering the questions the Tribunal asked.

10. The fourth ground is (errors in original):

    The Tribunal failed to apply the correct test in relation to the complementary Protection Provision contained in section 36(2)(aa) of the Migration Act 1958. The Tribunal made a jurisdictional error when it did not follow Rules of Real Risk Test of persecution and harm. The Tribunal failed to assess the applicant’s fear of persecution in pursuance to current explosive situation in Bangladesh which has been highlighted in all of the world.

    Particular:

    The AAT ignored the relevant consideration related with complementary protection set out in s 36(2)(aa). The Tribunal did not believe when the applicant told to the Tribunal and submitted evidence of torture of Jamaat-e-Islami Party supporters in Bangladesh by the present Awami League ruling government. In May 2016 when a famous Jamaat-e-Islami leader was hanged and thousands of its supporters were arrested.

    The harm or the mistreatment feared by the applicant on return is for reason of one or more of five grounds of recognised in the Refugee Convention.

    Applicant’s fear of harm is well founded and that there is a real chance that he will suffer persecution if he returned to Bangladesh. As the applicant stated in the primary application if he is compelled to go back to his country he will be killed by the Awami League Party workers and he has genuine protection from Bangladesh Government ruled by as Awami League Party.

    Applicant claims he will be harmed, tortured and arrested when he will be compelled to go back to his country Bangladesh. If he is compelled to go back as a returned asylum seeker there is a hundred percent chance that he will be killed or arrested, the Tribunal failed to account the current volatile situation against supporters of Jammat-e-Islami Party supporters.

11. This ground complains the Tribunal failed to apply the correct test for complementary protection. It is true the Tribunal did not, when specifically referring to the applicant’s claims, use the words contained in s.36(2)(aa) of the Migration Act 1958 (Cth) (Act), namely, “real risk” that the applicant “will suffer significant harm” if he were to return to Bangladesh. It is not arguable, however that this indicates the Tribunal applied the incorrect test. The Tribunal referred to the complementary protection criterion, and set out what it understood were the elements of that criterion.[12] It is not arguable that this part of the Tribunal’s reasons manifest any incorrect understanding of the criterion provided for by s.36(2)(aa) of the Act. Further, the Tribunal expressly stated it was not satisfied s.36(2)(aa) of the Act was established because the Tribunal had “rejected all the claims regarding the reasons the applicant claims to fear harm in Bangladesh”.[13] That is a reference to the Tribunal’s concluding it was not satisfied the applicant has or ever had any profile such that members of the Awami League or the BNP would wish to seek the applicant out to cause him harm for reasons of his political opinion.[14] It is also a reference to the Tribunal’s finding that the applicant fabricated his claim relating to his half-brothers attacking him.

    [12] CB170, [13]-[15]

    [13] CB177, [62]

    [14] CB173, [33]

Ground stated in “Applicant submission”

1. The proposed ground of review stated in the “Applicant submission” is as follows:

   The courts below erred by failing to find that the Second Respondent (Tribunal) had made a jurisdictional error by acting irrationally.

2. The “Applicant submission” submitted the Court should adopt the “sliding scale “ of irrationality  suggested by the Hong Kong Court of Final Appeal in Town Planning Board v Society for the Protection of the Harbour Ltd.[15] The applicant submitted the Tribunal’s decision was not based on identifiable evidence and was arbitrary and irrational.

   [15] [2004] 1 HKLRD 396

1. This ground is not arguable. The circumstances in which a Tribunal will be held to have made a jurisdictional error because of irrationality is governed by the judgments in Minister for Immigration and Citizenship v SZMDS & Anor.[16] In that case Crennan and Bell JJ said that, in the context of a decision made by the Tribunal, ““illogicality” or “irrationality” sufficient to give rise to jurisdictional error must mean the decision to which the tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence”.[17]

   [16] [2010] HCA 16; (2010) 240 CLR 611

   [17] Minister for Immigration and Citizenship v SZMDS & Anor [2010] HCA 16; (2010) 240 CLR 611 at [130]

2. It is apparent from the Tribunal’s reasons that it identified material and gave reasons for not accepting the applicant’s claims. The applicant does not state the ground on which he claims the Tribunal acted arbitrarily by relying on the material it did for not accepting the applicant’s claims. It is beyond argument that it was reasonably open to the Tribunal not to accept the applicant’s claims for the reasons it gave.

Submissions made at the hearing

1. At the hearing, in the course of making submissions for an adjournment, which I refused, the applicant said he is a poor man, he suffered in Bangladesh, and he will be killed if he returns to Bangladesh. These submissions disclose no arguable case of jurisdictional error.

Conclusion and disposition

1. The application discloses no arguable case for the relief it seeks. I propose to order that the application be dismissed.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Date: 30 June 2017