BDA15 v Minister for Immigration

[2015] FCCA 2652

FEDERAL CIRCUIT COURT OF AUSTRALIA

BDA15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2652

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration and Refugees Division) – Protection visa – bias – whether Tribunal demonstrated bias in making adverse findings of credit – whether Tribunal erred in finding applicant did not have a well-founded fear of persecution – whether Tribunal properly took applicant’s claims into account – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 476

Applicant: BDA15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1711 of 2015

Judgment of: Judge Street

Hearing date: 25 September 2015

Date of Last Submission: 25 September 2015

Delivered at: Sydney

Delivered on: 25 September 2015

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms N Blake
Clayton Utz

ORDERS

1. The name of the Second Respondent be amended to the Administrative Appeals Tribunal and the filing of any further document in this regard is dispensed with.

2. The amended application is dismissed.

3. The Applicant pay the First Respondent’s costs fixed in the amount of $6825.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1711 of 2015

BDA15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 in respect of a decision that the Tribunal made on 27 May 2015 affirming a decision of the delegate not to grant the applicant a protection visa.

2. The applicant was found to be a citizen of Bangladesh and his claims were assessed as against that country.  On 30 July 2015 the Court made orders providing an opportunity for the applicant to amend the application and put on affidavits and submissions.  An amended application was filed which raises the following grounds:

   1. The applicant claims that the Tribunal discarded all the considerations and precautions when the hearing was conducted. He was denied natural justice and procedural fairness when the Tribunal did not accept any written or oral evidence. It made decision with closed mind.

   Particular: In the decision the RRT found that there were some discrepancies 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 nerviousness and distress. Whatever the applicant said in support of his claim was true.

   Applicant claims that he had no ability to express his evidnece orally. He was always confused about what he is saying and what he understood the questions asked by the Tribunal.

   2 The Refugee Review Tribunal made a jurisdictional error when it failed to real test of persecution and harm according to the Migration Act

   Particulars:

   The Tribunal one hand believes that the “Applicant has presented hs main claims with broad consistency although there were some discrepancies between the evidence he gave at the Tribunal hearing, and his written claims and statements he made at the protection interview . Overall, I have decided that the decision under review should be affirmed.” Col 8 Decision of the RRT

   On the other hand the Tribunal Memebr has made biased opinion when he wrote in his decision “Aspects of the applicant's appear implausible, internally inconsistent and inconsistent with the risk of harm he claims to face from his half-brother Col9 Decision of the RRT

   The Tribunal raised several irrelevant issues to discredit the facts. Applicant told the facts based on truth. He is a truthfull witness. He said that he has genuine fear from step brother and if he is compelled to go back he will be killed by him or his associates. He said that he has no reasonable protection from the local authorities .He said his brother went to India. It does not mean that he went to India forever.

   He claims that the RRT did not account the applicant's claim that there is no reasonable protection from the Bangladesh Government. The police is bribed and influenced by the money. The applicant claims that he left Bangladesh for the fear of his life.

   The applicant claims that he was denied procedural fairness when he was misunderstood and facts were construid

   3. 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 .

   Particulars:

   The Tribunal failed to consider genuinely the alternative criterion s36(2)(aa) despite the fact the applicant has genuine fear of persecution and he is compelled to go back to his country he will be killed r harassed by his step brother.

   The RRT ignored the relevant consideration related with complementary Protection set out in s36(2)(aa).

   The harm or the mistreatment feared by the applicant on return is for reason of one or more of five grounds of recognized 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.

3. The applicant was invited by letter dated 15 April 2015 to attend a hearing before the Tribunal on 27 May 2015, which the applicant attended, to give evidence and present arguments and was assisted by the interpreter.  The applicant’s claims to fear of persecution were first in relation to family enmity from another son of his father’s first wife, the applicant being the son of the father’s second wife.  The applicant asserts that the other son has on several occasions assaulted him and on one occasion robbed him. 

4. The applicant said that the incidents were not reported to the police because the police will not help you unless you pay them a bribe and he cannot afford that.  The applicant fears that he will not be able to relocate in Bangladesh because the other son and his family might be able to find him.  The Tribunal correctly identified the relevant law in respect of the issue as to whether the applicant had a well-founded fear of persecution for a Convention reason as set out in footnote number 2, picked up by para.7 of the Tribunal’s reasons, and as to whether there is a real risk that the applicant will suffer significant harm, being grounds of complementary protection, picked up by footnote 3 to para.7 of the Tribunal’s reasons. 

5. This is a case where the Tribunal made adverse credit findings in relation to the main claims of the applicant and found that the applicant’s claim appeared:

   9. …implausible, internally inconsistent and inconsistent with the risk of harm he claims to face from his half-brother. 

6. The Tribunal noted that the applicant said it was a long time ago, that he could not remember things well and noted that the applicant was unable to explain the inconsistencies and that in those circumstances it was difficult to accept the applicant was telling the truth. 

7. The Tribunal put to the applicant the inconsistencies in relation to whether he was telling the truth.  The Tribunal referred to the applicant’s father and although not a matter that could give rise to jurisdictional error, the Court was informed from the bar table by the applicant that his father had died about a month ago.  The applicant, from the bar table, identified his sister’s ongoing health problems and that he had a job and that he had told the Tribunal the truth and that he did not know what he would do if he was sent back and that he remained in fear. 

8. One of the matters taken into account by the Tribunal was that the applicant had left Bangladesh on his own passport in July 2011 and worked for 12 months in Malaysia before returning to Bangladesh in mid-2012 and that he then left for Australia in November 2012.  The Tribunal regarded the applicant’s return to Bangladesh in mid-2012 as inconsistent with a pre-existing and ongoing fear of harm. 

9. The Tribunal said:

   15. Based on the applicant's account, I am not satisfied that his half-brother(Y) genuinely intends to inflict any form of serious harm on the applicant such as to establish that he has a well-founded fear of persecution or that there is a real risk that he would suffer significant harm if he returned to Bangladesh.

10. It was in those circumstances that the Tribunal found that the applicant was not a person in respect of whom Australia had a protection obligation and that the criteria under ss.36(2)(a) and 36(2)(aa) was not made out. In relation to ground 1, an allegation of bias must be clearly alleged and properly proven. To the extent that ground 1 raises an allegation of bias, it appears to be focused on the adverse findings by the Tribunal. Adverse findings by the Tribunal are not a basis upon which bias could be made out.

11. The adverse findings in relation to the applicant’s credit in the present case is not conduct by reason of which a fair-minded lay observer might reasonably apprehend that the Tribunal might not bring an impartial and independent mind to the determination of the matter on its merits.  It was a matter for the Tribunal to assess the applicant’s credit and the adverse finding by the Tribunal was open on the material before the Tribunal. 

12. In these circumstances there is no substance in the assertion that the applicant was denied natural justice or procedural fairness by reason of the Tribunal not accepting the applicant’s written or oral evidence. 

13. This is a case where the delegate had found that the applicant was not a witness of truth and rejected the applicant’s claims.  No transcript has been tendered in relation to any alleged confusion or misunderstanding in respect of what was raised by the Tribunal with the applicant.  No jurisdictional error is made out by ground 1 of the amended application. 

14. In relation to ground 2, it is clear that the Tribunal identified correctly the law applicable, in respect of whether the applicant had a well-founded fear of persecution for a Convention reason. The applicant’s particulars to ground 2 take issue with the adverse findings of fact that were a matter for the Tribunal to determine. The assertion that the Tribunal made a jurisdictional error in relation to ss.36(2)(a) or 36(2)(aa) is not made out.

15. To the extent that the particulars to ground 2 refer to alleged irrelevant issues, the matters referred to relate to the Tribunal’s adverse findings on credit, which were clearly open to the Tribunal and relevant.  To the extent that the applicant complained that the Tribunal did not take into account the applicant’s claim that there is no reasonable protection from the Bangladesh Government, and that the police can be bribed and influenced by money, it is clear that the Tribunal took into account that the applicant had not reported the alleged assaults or robbery by his half-brother to the police.  The Tribunal referred to the country information that:

    The Bangladesh Police generally provide adequate protection for Bangladeshis, and the State has held the police accountable for failing to provide adequate protection.

16. It was in those circumstances that the Tribunal took into account the failure of the applicant to seek assistance from the police as casting doubts on his claim.  To the extent that an allegation of bias is raised by ground 2 and the particulars, it is not proven, for the reasons I have given.  No jurisdictional error is made out by ground 2. 

17. In relation to ground 3, the Tribunal correctly identified the relevant law in respect of the complementary protection, referred to above, and the applicant had a genuine hearing.  The particulars for ground 3 raise issues of fact that it was a matter for the Tribunal to determine, and do not identify any jurisdictional error.  Ground 3 fails to make out any jurisdictional error.  The amended application is dismissed.  

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  21 October 2015