BEP16 v Minister for Immigration

[2016] FCCA 2389

FEDERAL CIRCUIT COURT OF AUSTRALIA

BEP16 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2389

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Protection (Class XA) visa – whether the Tribunal failed to take into account relevant considerations – whether the Tribunal failed to apply the real chance test – whether the Tribunal failed to consider complementary protection – no jurisdictional error identified – application dismissed.

Legislation:

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

Federal Circuit Court Rules 2001 (2001), r.44.12

Cases cited:

Spencer v Commonwealth of Australia (2010) 241 CLR 118

Applicant: BEP16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1248 of 2016

Judgment of: Judge Street

Hearing date: 13 September 2016

Date of Last Submission: 13 September 2016

Delivered at: Sydney

Delivered on: 13 September 2016

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms B Rayment
Mills Oakley Lawyers

ORDERS

1. The amended application is dismissed under r.44.12 of the Federal Circuit Court Rules 2001.

2. The Applicant pay the costs of the First Respondent fixed in the amount of $3,606.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1248 of 2016

BEP16

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 Refugee Review Tribunal (“the Tribunal”) made on 3 May 2016 affirming the decision of the delegate not to grant the applicant a Protection (Class XA) visa.

2. The applicant was found to be a citizen of Bangladesh and his claims were assessed against that country.  It was found that the applicant departed Dhaka airport on 20 November 2012 using a false passport and travelled to Malaysia. The applicant then departed Malaysia for Indonesia and arrived by boat to Australia on 4 December 2014. 

3. The applicant claims to fear harm by reason of his membership of a particular social group and/or his political opinion and/or by reason of his involvement with the Bangladesh National Party (“BNP”), as he is a failed asylum seeker and has attended BNP meetings in Australia. 

The Delegate’s Decision

1. On 13 November 2014, the delegate refused to grant a Protection (Class XA) visa to the applicant. The delegate made comprehensive adverse credibility findings in relation to all the applicant’s claims and was not satisfied that the applicant has a real chance of being persecuted for a Refugees Convention reason and was not satisfied that the applicant’s fear was well founded pursuant to s36(2)(a) of the Act. The delegate was also not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Bangladesh, there is a real risk that the applicant will be subjected to significant harm under s.36(2)(aa).

The Tribunal’s Decision

1. The applicant lodged an application for review on 17 November 2014.  By letter dated 18 March 2016 the applicant was invited to attend a hearing at the Tribunal to take place on 27 April 2016 to give evidence and present arguments. The applicant appeared on that date and was assisted by his migration representative. Prior to the hearing, the applicant’s migration representative had provided detailed submissions dated 11 March 2016, which also addressed the issue of the applicant’s credibility.

2. The Tribunal, in its reasons, identified the relevant law and set out the applicant’s claims and evidence.  The Tribunal then identified what occurred before the delegate and the delegate’s findings. The Tribunal then referred to the hearing on 27 April 2016 before the Tribunal.  From the Tribunal’s reasons it is apparent that the Tribunal raised issues in relation to the applicant’s credit with the applicant during the course of the hearing. The Tribunal’s reasons provide grounds of support for the adverse findings, having taken into account the applicant’s evidence that he was nervous and anxious.

3. The Tribunal found that the applicant’s claims were not credible. The Tribunal was not satisfied that the applicant was ever involved with the BNP as he claimed. Further, the Tribunal did not accept that the applicant had ever been a BNP supporter, and did not accept that the applicant was ever the subject of a false case that was brought against him.

4. The Tribunal did not accept that the applicant was ever introduced to the BNP by his cousin, that he was a BNP member, or was a supporter in Bangladesh, that he had had any special role in the BNP. Further the Tribunal did not accept that the applicant had ever been the vice-president of the BNP committee for a particular region, nor did the Tribunal accept that the applicant participated in meetings of the BNP, rallies, protests, or other public political activities in support of the BNP in Bangladesh.

5. As the Tribunal did not accept that the applicant had ever been the subject of a false case, it did not accept that the authorities ever went to the applicant’s family looking for him in relation to that matter. In addition, the Tribunal did not accept that the applicant was removed from the list of registered voters, or otherwise targeted by the Bangladesh authorities in any way.  The Tribunal did not accept that the applicant was ever involved in the BNP, or targeted by the Awami Legaue (“AL”) supporters, or the authorities as claimed by the applicant. 

6. The Tribunal did not accept that the applicant’s relatives had anything to do with the problems that the applicant claimed he had experienced in Bangladesh. The Tribunal accepted that the applicant may have attended meetings of the BNP in Australia as claimed. The Tribunal found that it was not satisfied that the applicant had attended those meetings, otherwise than for the sole purpose of strengthening his claims to be a refugee. Accordingly, the Tribunal disregarded the conduct in attending the meetings of the BNP in Australia for the purpose of assessing whether he met the criterion under s.36(2)(a) of the Act.

7. The Tribunal did not accept that the applicant had ever been a member of the BNP as claimed and did not accept that he would be motivated to be active in supporting the BNP if returned to Bangladesh now, or in the reasonably foreseeable future.  Further, the Tribunal did not accept that there is a real chance that the applicant will face harm of any type as a failed asylum seeker and/or because the applicant attended BNP meetings in Australia, if the applicant returned to Bangladesh.

8. The Tribunal was not satisfied that there is a real chance that the laws prohibiting illegal departure would be enforced against the applicant upon his return to Bangladesh. Further, the Tribunal did not accept that there is a real chance that the applicant will be imprisoned, subjected to treatment amounting to serious harm, or significant harm as a result of his false passport if the applicant was to return to Bangladesh.

9. In relation to complementary protection under s 36(2)(aa) of the Act, the Tribunal considered the applicant’s conduct in Australia and found that the applicant did not have any genuine interest in or commitment to the BNP. The Tribunal found that the applicant would not seek to actively support the BNP in any way if he returned to Bangladesh. Further, the Tribunal did not accept that there are substantial grounds for believing that there is a real risk he would face significant harm for that reason.

10. The Tribunal found that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal from Australia to Bangladesh, there is a real risk he will suffer significant harm for any of the reasons claimed. 

11. The Tribunal found that the applicant did not meet the criteria under section 36(2) of the Act and affirmed the decision of the delegate not to grant the delegate a Protection visa.

Proceedings Before This Court

1. These proceedings were commenced on 19 May 2016. On 7 July 2016, a Registrar of the Court made orders providing the applicant with an opportunity to file an amended application, affidavit evidence and submissions. Those orders expressly referred to the applicant putting on a transcript by affidavit if the applicant wished to rely upon the same. The orders also fixed the matter for a show cause hearing before this Court under r.44.12 of the Federal Circuit Court Rules 2001 (Cth).

2. The orders also noted that the applicant was provided in Court with contact details of legal services providers, translating and interpreting services in the applicant’s own language.  That document was tendered in evidence.  On 25 May 2016, the solicitors for the first respondent wrote to the applicant and identified organisations from which the applicant might be able to obtain free or low-cost legal advice or assistance. 

3. At the commencement of the hearing today, the applicant handed up submissions. In Court, those submissions identified a request for an adjournment by the applicant and annexed materials supporting a request by the applicant for a translation of the CD of the Tribunal hearing. On 26 July 2016, the applicant filed an amended application.

4. The grounds of the amended application are as follows:-

   1.In making decision, the Administrative Appeals Tribunal acted without jurisdiction or in excess of jurisdiction when it failed to take into account relevant considerations.

   Particulars:

   a)AAT unreasonably raised doubt over my involvement with the BNP and my life is in danger.The Department and the Tribunal misunderstood or misconstrued the facts.Migration Advisor for the applicant’s motivation to BNP politics, Applicant’s activities and role in the party. I was an active and popular activist of BNP.

   b)Applicant claims that there are many BNP leader worker and also low profile activists are persecuted like me. As I stated earlier, that my father business was attacked and looted in the past by the Awami league cadres.

   c)When Bangladesh Political situation for the Bangladesh Nationalist Party became worse, 1 decided to leave Bangladesh.

   d)I argue that the Department and the Tribunal asked many irrelevant questions to test the credibility of my evidences to support my claims.

   e)The Department and the Tribunal found inconsistency because the questions were asked in such a manner for which the applicant was not prepared. He was nervous and confused at the time of making Statutory Declaration and also at the time of interview with the Department and Lawyers who helped him to prepare the application.

   f)The Tribunal raised the question about telling these things now, and raised the question why 1 did not mention earlier in the Statutory Declaration with the Original Application

   g)For the protection of my life I leave Bangladesh to Australia by boat and without passport. The tribunal member did not believe that and AAT raise question of credibility. I am not that much qualified person.

   h)The Department has accepted that I was very confused. l, myself was not understanding what answer I was giving for what question. The Department told the applicant first understand then give answer.The applicant was totally nervous.

   i)l believe 1 was denied procedural fairness when the hearing was conducted not freely and fairly.

   2.I claim that the AAT mad a jurisdictional error when it made decision in which the finding of reasons is confused. I argue that the Tribunal did not apply Real Risk Chance Test used in the Refugee Convention under Australian Law.

   Particulars:

   a)I claim that the Tribunal and the Department formed the opinion based on the limited information about the possible harm to me. The Tribunal ignored all other independent information about the attacks on me and the BNP activists.AAT made unreasonable doubt about my documents related with my claims.

   b)The Department and the Tribunal mad opinion with the closed mind. l claim that I left Bangladesh because of attack and torture by the supporters of Awami League supporter.l have no protection from the local authorities because my attempts to get help failed and also the monopoly of Awami League cadre and administrative authorities in Bangladesh.

   c)The AAT did not account any evidence of real chance of risk despite the facts of my situation in Bangladesh.

   3.The Tribunal made a jurisdiction error when it did not consider my claims under the Complementary Protection Clauses.

   Particulars:

   a)I claim I would satisfy the criterion for protection under the Complementary protection arrangements as there are substantial grounds to believe there is a real risk that would suffer significant harm on return to Bangladesh. I claim that the Tribunal blindly follow the decision of the Delegate.

   b)The Tribunal did not consider that how 1 came to Australia by another passport taking high risk of life. The AAT ignored intentionally the relevant consideration related with complementary protection set out ins 36(2) (a). I am subjected to a significant harm as consequences of being tried for kill with possibility that sever sentence would be carried out on me.

   c)The AAT ignored real test of persecution and made decision with closed mind.

(Errors and emphasis in original)

1. At the commencement of the hearing, the Court heard from the applicant as to whether an adjournment should be granted.  The applicant identified that although he had taken steps since the orders made by the registrar to try and obtain legal representation, he had been unsuccessful. The applicant did not identify any satisfactory explanation as to why the applicant had not been seeking legal representation from the commencement of the proceedings.

2. The applicant’s written submissions suggest that he had not obtained legal representation due to financial hardship and that he did not have any money to engage a barrister. The applicant’s submissions identified that he needs money to engage a barrister and he has asked his friends for help.  There is nothing in the applicant’s submissions or material to support that such financial funding has been provided to the applicant.  From the bar table, the applicant asserted that he was now working and he would be able to obtain funds to retain a lawyer.

3. The adjournment application was opposed by the first respondent. The first respondent tendered the correspondence notifying the applicant of entities from whom legal advice might be obtained and relied upon what occurred before the registrar on 7 July 2016 as referred to above.  No earlier notice than today was given to the first respondent of an adjournment application. 

4. In support of the adjournment application, the applicant maintained that he was asked questions repeatedly by the Tribunal of the same kind.  The Tribunal’s reasons make it clear that the applicant’s credit was a live issue which the Tribunal explored with the applicant at the hearing. Nothing said by the applicant from the bar table or in the written submissions identified any proper basis by which the court could conclude that there would be any utility in granting an adjournment.

5. The Court is not persuaded that an adjournment would be likely to give rise to any representation of the applicant.  Further, the Court is not persuaded that any matters raised by the applicant identify a proper basis upon which an adjournment should be granted at this late stage. Nor is the Court persuaded that an adjournment should be granted to permit the obtaining of a transcript of the Tribunal hearing particularly, given the orders that were made on 7 July expressly requiring the applicant to put on by affidavit any transcript.

6. Nothing said by the applicant identified any proper basis upon which it could be said there was a potentially arguable case to be advanced if the transcript was obtained. The broad reference by the applicant to repeated questions where credit was in issue is not a sufficient basis to infer any utility in obtaining the belated transcript. Further an adjournment would unnecessarily add to the costs of the parties and utilise limited court time. I am not satisfied that an adjournment is warranted in the interests of the administration of justice. 

7. The Court explained to the applicant that the matter was fixed for a show cause hearing under r.44.12 of the Federal Circuit Court Rules 2001 (Cth).  The Court explained to the applicant that this meant the court was considering whether there was an arguable case.  The Court explained that this meant the Court was considering whether there was a reasonable argument that the Tribunal’s decision was affected by relevant legal error. The Court explained that the relevant legal error had to be either an excess of statutory power or a denial of procedural fairness to the applicant.

8. The Court explained that in summary it was considering whether the applicant had a reasonably arguable case that the Tribunal’s decision was unlawful, or a reasonably arguable case that the Tribunal’s decision was unfair. The Court explained to the applicant that if it was satisfied that there is a reasonable arguable case of relevant legal error, the matter would be fixed for hearing on another occasion.

9. The Court explained to the applicant that, if not satisfied there was a reasonably arguable case of relevant legal error, the application would be dismissed.  The applicant confirmed that he understood what had been said by the Court.  The Court explained to the applicant that it would identify the evidence, then hear submissions from the applicant, then hear submissions from the solicitor for the first respondent and then hear submissions from the applicant in reply.  The applicant confirmed that he understood the nature of the hearing as explained by the Court.

10. From the bar table, the applicant maintained that he had told the truth and that his credit had not been accepted.  The applicant complained about the issue of credibility raised by the Tribunal with the applicant in the course of the hearing.  The applicant maintained that his claims were genuine and asserted that he was still trying to obtain legal representation. Nothing said by the applicant from the Bar table or in the written submissions identified any reasonably arguable case of jurisdictional error.

11. In substance, the applicant’s oral submissions took issue with the adverse credibility findings by the Tribunal.  Those adverse credibility findings were open to the Tribunal and cannot be said to lack in evident and intelligible justification. The Tribunal’s reasons reflect an orthodox approach to the review, and on the material before the Court, the Tribunal complied with its statutory obligations in the conduct of the review.

12. There is nothing before the Court to establish any departure from the requirements of procedural fairness in the conduct of the review. On the material before the Court the applicant had a genuine hearing, and the live issue in relation to the applicant’s credibility was something in respect of which the applicant was on notice. Further the applicant’s credit was an issue that had been addressed in submissions by his legal representative prior to the hearing before the Tribunal.

13. There was nothing in the Tribunal’s decision which reflected any misunderstanding or misconstruction of the applicant’s claims and evidence. It was a proper matter for the Tribunal to consider the applicant’s credit.  There is no substance in the proposition that the Tribunal failed to take into account a relevant consideration. The applicant did not identify any relevant consideration that the Tribunal failed to take into account. Contrary to the amended application, there is no arguable case that the Tribunal acted without jurisdiction, or in excess of its jurisdiction, or that the Tribunal failed to take into account any relevant consideration. 

1. The testing of the applicant’s credit was a proper matter for the Tribunal to explore. The applicant’s credit was an issue upon which the applicant was on notice as a result of the findings of the delegate. To the extent that the applicant seeks to advance what the situation was in Bangladesh was a matter for the Tribunal to determine. 

2. This court does not have the power to make fresh findings of fact in relation to the applicant’s claims and evidence.  For the reasons already given, the adverse findings were open to the Tribunal and cannot be said to lack an evident and intelligible basis.  It is apparent that the Tribunal did take into account that the applicant was nervous and anxious in relation to assessing the applicant’s evidence. 

3. There is no arguable case that the applicant was denied procedural fairness in the conduct of the hearing.  There is no arguable case that the applicant did not have a genuine hearing before the Tribunal.  On the basis of the material before the Court, there is no arguable case that the review was not conducted fairly.

4. The adverse findings by the Tribunal are not conduct by reason of which a fair-minded lay observer might reasonably apprehend that the Tribunal might not bring an independent, impartial and fair mind to the determination of the matter on its merits. There is no arguable case of bias on the material before the Court. 

5. It was open to the Tribunal to find that the applicant gave inconsistent evidence. The findings of the Tribunal do not reflect any failure to apply the correct tests in relation to s.36(2)(a) or in s.36(2)(aa) of the Act. It is also apparent that the Tribunal correctly took into account the applicant’s departure from Bangladesh on a false passport in relation to the issue of complementary protection. Further, there is no arguable case of jurisdictional error in relation to the Tribunal’s assessment of the applicant’s complementary protection claims.

6. I take into account the principles and caution in Spencer v Commonwealth of Australia (2010) 241 CLR 118, at [24]-[25] and [59]-[60]. I am clearly satisfied that the application fails to identify any arguable jurisdictional error. I am satisfied that this is an appropriate matter in which to exercise the Court’s powers under r.44.12 of the Federal Circuit Court Rules 2001 (Cth).

7. The application is dismissed under r.44.12 of the Federal Circuit Court Rules 2001 (Cth).

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 5 October 2016