Bfu16 v Minister for Immigration

[2019] FCCA 3311

FEDERAL CIRCUIT COURT OF AUSTRALIA

BFU16 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 3311

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application in a case for reinstatement – whether there is a satisfactory explanation for the applicant’s failure to appear at the hearing – whether there is any utility in setting aside the Court’s order – application in a case dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 424AA, 425
Federal Circuit Court Rules 2001 (Cth), r.13.03C(1)(c)

Applicant: BFU16

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1290 of 2016

Judgment of: Judge Street

Hearing date: 18 November 2019

Date of Last Submission: 18 November 2019

Delivered at: Sydney

Delivered on: 18 November 2019

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents: Ms A Zinn
Mills Oakley

ORDERS

1. The application in a case filed 11 November 2019 is dismissed.

2. The applicant pay the first respondent’s further costs fixed in the amount of $500.00.

DATE OF ORDER: 18 November 2019

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1290 of 2016

BFU16

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application in a case filed on 11 November 2019 seeking to set aside an order made by this Court on 5 November 2019 dismissing the proceedings under r 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”).

2. The applicant is a citizen of Bangladesh and born in a particular district. On 4 December 2012, the Tribunal identified that the applicant arrived in Australia by boat.

3. On 16 May 2013, the applicant applied for a Protection (Class XA) visa (“Protection visa”). The Administrative Appeals Tribunal (“the Tribunal”) summarised the applicant’s claims, including in relation to a relationship with a particular woman and an alleged leader of an Awami League, person S. The applicant alleged that he was attacked by person S and that person S is still looking for him. The applicant also claimed that he fears that he will be harmed or killed by person S or his associates from the Awami League.

4. On 29 July 2014, a delegate found that the applicant failed to meet the criteria for the grant of a Protection visa. The delegate made adverse credibility findings in relation to the applicant’s claims in respect of a relationship with a particular woman and his fear of harm.

5. On 18 August 2014, the applicant applied to the Tribunal for review of the delegate’s decision. On 15 March 2016, the Tribunal invited the applicant to attend a rescheduled hearing on 6 April 2016. The applicant appeared on that date to give evidence and present arguments.

6. The Tribunal in its reasons summarised the background to the application for review and set out the relevant law. The Tribunal also took into account country information.

7. The Tribunal also summarised the applicant’s claims and referred to the applicant’s submissions. The Tribunal found that the applicant provided vague, evasive and inconsistent details in respect of his claims. The Tribunal referred to the applicant’s explanation for his memory problems and took into account country information. The Tribunal also took into account the submissions advanced on behalf of the applicant in relation to his credibility.

8. The Tribunal did not accept the applicant to be a reliable witness. The Tribunal did not accept that the applicant was ever targeted, harmed or threatened by person S or the Awami League because of his claimed relationship with a particular woman or that he is perceived to be opposed to the Awami League. The Tribunal did not accept as true the applicant’s fears of return to Bangladesh or that he will be killed, physically abused or threatened with harm. The Tribunal found the applicant’s claims to be inconsistent. The Tribunal found that the applicant had fabricated his claims and concocted his evidence to achieve a migration outcome.

9. The Tribunal referred to the assessment of the applicant’s claims in relation to the alleged assaults by person S. The Tribunal referred to the different evidence given by the applicant as to the number of times he was assaulted by person S.

10. The Tribunal referred to raising, pursuant to s 424AA of the Migration Act 1958 (Cth) (“the Act”), the different evidence that the applicant had given in relation to the assault. The Tribunal referred to the applicant’s response when these issues were raised with the applicant in relation to his credibility.

11. The Tribunal did not accept the applicant’s explanation of allegedly being illiterate and not educated. The Tribunal found that the applicant was never assaulted by person S, his associates or members of the Awami League for the reasons claimed.

12. The Tribunal referred to the different evidence in respect of when the applicant left his village to travel to Australia. The Tribunal did not accept the applicant’s explanation that, if he was in such fear, he would go to the bazaar and work for seven or eight months before departing Bangladesh. The Tribunal referred to the applicant’s response and found it to be inconsistent with his evidence. The Tribunal found that the applicant never went into hiding, nor kept a low profile before departing for Australia.

13. The Tribunal referred to the applicant’s claims in respect of the alleged threats. The Tribunal found that the applicant had given inconsistent evidence in that regard. The Tribunal raised with the applicant the particulars of the inconsistencies in evidence in the course of the hearing.  The Tribunal engaged with and did not accept the applicant’s explanation in that regard.

14. The Tribunal referred to the applicant’s alleged relationship with a particular woman. The Tribunal referred to the submissions advanced on behalf of the applicant in that regard. The Tribunal also referred to the applicant’s limited knowledge of the personal details of the particular woman. The Tribunal found that the applicant provided inconsistent evidence as to how often he had met the woman up until his time of departure from Bangladesh.

15. The Tribunal expressly took into account submissions which were advanced in relation to the applicant’s credibility. The Tribunal also referred to the absence of any medical evidence to support the applicant’s alleged medical state. The Tribunal found that the applicant had been unable to provide consistent evidence in respect of core aspects and details of his claims. The Tribunal did not accept that the inconsistencies could be explained by the applicant’s unfamiliarity with the process, education, social and cultural reasons, or because he finds it difficult to talk about the relationship to a particular woman.

16. Having considering the matters cumulatively, the Tribunal found that the applicant was not a reliable witness. The Tribunal did not accept that the inconsistencies which the Tribunal had found to be significant could be explained, as advanced by the applicant.

17. The Tribunal also took into account the applicant’s claim of being illiterate and uneducated. The Tribunal referred to raising with the applicant during the hearing the education that he obtained over five years. The Tribunal did not accept that the applicant is illiterate or that this explains the inconsistencies in his evidence.

18. The Tribunal found the applicant not to be a credible, truthful or reliable witness as to his claims in respect of his departure from Bangladesh. The Tribunal found that the applicant had fabricated his claims and concocted the evidence to achieve a migration outcome.

19. In these circumstances, the Tribunal did not accept that the applicant was ever in a relationship with a particular woman, that his family ever asked her family whether they could marry or have a relationship, or that he and the woman met in the way he claimed.

20. The Tribunal did not accept as true that the applicant was ever threatened, intimidated, assaulted, harmed or faced any of the difficulties that he claims from person S, a person prominent in the Awami League, Awami League members, or person S’s associates as the applicant was in love with the particular woman and person S wanted to marry her and she refused.

21. The Tribunal did not accept as true that person S had been asking the applicant’s friends and family as to his whereabouts. The Tribunal did not accept as true the claim that person S will convince his political allies that the applicant is against the Awami League.

22. The Tribunal referred to a cumulative consideration of the applicant’s claims. The Tribunal did not believe the applicant is being truthful as to his claims. The Tribunal did not accept that the applicant will face any of the difficulties he claims, including persecution, serious harm, physical or verbal harm, threats, ostracism, kidnapping, death and violence, harm at the hands of person S or person S’s associates, the Awami League, the authorities or anyone else, that he was in love with the particular woman and she was in love with him and person S was angry about this, or on account of an imputed political opinion as being opposed to the Awami League or opposed to the government, as person S is aligned with that party.

23. The Tribunal did not accept that the applicant will face a real chance of persecution involving serious harm if he returns to Bangladesh in the reasonably foreseeable future at the hands of person S, person S’s associates, the Awami League, the authorities or anyone else, that he was in love with the particular woman and she was in love with him and person S was angry about this, or on account of an imputed political opinion as being opposed to the Awami League or as opposed to the government, as person S is aligned with that party.

24. Having referred to the evidence before the Tribunal, considered individually and cumulatively, the Tribunal was satisfied that the applicant does not, now or in the reasonably foreseeable future, have a well‑founded fear of persecution arising from one or more of the five 1951 Refugee Convention reasons if returned to Bangladesh.

25. The Tribunal found there were not substantial grounds for believing that, as a necessary or foreseeable consequence of the applicant being removed from Australia to Bangladesh, there is a real risk the applicant will suffer significant harm.

26. The Tribunal found that the applicant did not meet the criteria in ss 36(2)(a) or 36(2)(aa) of the Act.

27. Accordingly, the Tribunal affirmed the decision under review.

Before the Court

1. At the commencement of the hearing, the Court explained to the applicant the nature of the issues in respect of the application to have the Court’s order set aside under r 16.05(2)(a) of the Rules and the applicant confirmed he understood the explanation given by the Court.

2. From the bar table, the applicant’s explanation for the failure to attend Court was that he went to the wrong location, was told that he had arrived too late and thought it would be at the same location that he had his Tribunal hearing.

3. The applicant’s affidavit provided a different explanation, which referred to the applicant being unable to attend the hearing. When that was raised with the applicant, the applicant explained that he meant unable to attend because he went to the wrong location.

4. The applicant also identified that he had forgotten to change his address. It is apparent from the notice of address for service that has been filed on 11 November 2019 that the applicant’s email address remained the same. It is also apparent from the applicant’s explanation as to when he went to the wrong address, that he had an email with him in respect of the hearing date.

5. The first respondent has tendered and had marked Exhibit C the email sent to the applicant, which reminded the applicant of the hearing date.

6. The Court does not regard the applicant’s explanation as satisfactory, even accepting, as the Court is willing to do, that the applicant did make efforts to attend. The applicant should have ensured that he was at Court at the right time and in the right place.

7. Whilst the Court is prepared to accept that the applicant made some effort to attend, because he had clearly received the email notifying him of the hearing, the Court does not regard the applicant’s explanation for the failure to be at the correct Court at the correct time as satisfactory.

8. The more important issue are the merits of the applicant’s application and whether there would be any utility in setting aside the Court’s order made on 5 November 2019.

9. From the bar table, the applicant maintained that his life would be in danger if returned to Bangladesh. The applicant’s submissions from the bar table, in substance, identified a disagreement with the adverse findings by the Tribunal and invited merits review. Nothing said by the applicant from the bar table identified any arguable case of relevant error by the Tribunal.

Grounds of the Application

1. The grounds in the application are as follows:

   1. The applicant claims that in making decision, the Administrative Appeal Tribunal failed to take account relevant considerations and took into account irrelevant considerations. The AAT made decision on irrelevant facts and findings.

   2. Particulars: Subparagraph of 65 (1) (a) (ii) of the Migration Act 1958 requires the decision maker in respect of the applicant's primary application for a protection visa to make determination as to whether criteria for the grant of the visa prescribed by the Act or the Regulations made there under were satisfied. Applicant's representative at the time of hearing claimed that the applicant falls within the scope of the Refugee Convention for reasons of his membership of particular social group as a returnee from western country and his imputed political opinion.

   3. The applicant claims that Person S (a Powerful political group-Awami League Party leader) will use his connections with the Awami League (the current rulling party of Bangladesh) to ensure the applicant will be seriously harmed. In particular, he claimed that the applicant is fearful that Person S will convince his political allies (Awami League) that the applicant is against the Awami League (Rulling Party) in order to ensure they subject the applicant to serious harm given perceived any-Awami League sentiments.

   4. At the time of first interview, the Delegate did not give due consideration to the applicant’s educational, social and cultural background with regard to his ability to give evidence.

   5. The applicant claims that he was denied natural justice and procedural fairness when the hearing was not conducted in freely and fairly. (Section 424 of the Migration Act)

   6. Particulars: At the time of hearing, the applicant continually claimed to have no or little memory about significant aspects of his claims. The applicant told the truth to the Tribunal about first interview at Detention Centre. He was stressed at the first interview and found it difficult to recollect the precise information in respect of the early stages of the relationship with his girlfriend the particular woman. He departed from Bangladesh in 2012 and passage of time has been significant which had impacted on his memory as to the details of their discussion and time line of events. He was unable to provide precise details about the relationship. The applicant provided most of the vital information relating to how they met, how they would interact by walking the particular woman home and general discussion about their relationship.

   The applicant claims that he was given chance to expand memory about the relationship at the Tribunal’ hearing. The Tribunal mistook the facts. Applicant's weakness to present evidence in sequence became a serious concern about the applicant’s credibility. The Tribunal came on conclusion that he has not told the truth in relation to crucial aspects of his claim.

   Applicant claims that whatever he has submitted to the Tribunal in support of his claim was true and correct in his belief. The Tribunal decision is unreasonable when it came on the conclusion that all the documents came from Bangladesh are fraudulent and bogus and it cannot accepted as authentic documents for the applicant's claims.

   7. The Applicant claims that the AAT's finding of reasons arc confused and test for persecution is not applied according to the rules of the Act and according to Complementary Protection Provisions under s.36(2) (aa) of the Act.

   8. Particulars: The applicant's fears of Persecution falls within the scope of Complementary Protection provisions for reasons of his membership of a particular social group as returnee from Western Country and his imputed political opinion. He left Bangladesh because of fear of foreseeable harm. As staled earlier he has fear from the supporter of rulling Awami League party member Person S who threatened him to kill if he is going back to Bangladesh.

   The applicant claims that the AAT unduly adopted harsh approach in assessing the fear of harm. The AAT did not follow the Rules of real risk Test of Persecution and harm. The AAT failed to account all the circumstances of fear and harms in which the applicant lived in Bangladesh. The AAT failed to give real reasons for not applying Complementary Protection Criteria Under Paragraph 36 (2) (aa).

Ground 1

1. In relation to ground 1, it is apparent that the Tribunal considered the applicant’s claim to fear harm from a leader of an Awami League political group but made adverse findings in relation to the same. There is no reasonable argument of a failure to take into account a relevant consideration or the taking into account of an irrelevant consideration, as disclosed by ground 1.

2. The reference to the delegate is also irrelevant as this Court does not have power to review the delegate’s decision.

3. No arguable case of jurisdictional error is disclosed by ground 1.

Ground 2

1. In relation to ground 2, the applicant contends that the hearing was not conducted fairly. The applicant also alleges what is clearly intended to be a breach of s 425 of the Act. The applicant’s particulars assert that the applicant was not given the chance to expand on his memory of the hearing and that the Tribunal mistook facts. There is no fact identified which the Tribunal has misunderstood, nor, on the face of the Tribunal’s reasons, is there anything to support the applicant’s assertion that he had other than a real and meaningful hearing before the Tribunal. No arguable case of jurisdictional error is disclosed by ground 2.

Ground 3

1. In relation to ground 3, this ground alleges a failure to apply the correct test or the Tribunal being confused. There is no identification of any basis upon which it could be said that the tribunal misunderstood or misapplied the relevant law. The third ground is, in substance, an attempt to engage in merits review, and does not identify any jurisdictional error.

2. The Court accepts the first respondent’s submissions that there has been no satisfactory explanation for the failure to appear by the applicant and that there would be no utility in setting aside the order made by the Court as there is no arguable case of relevant error disclosed by the grounds in the application. The Court also accepts the first respondent’s submission that there was nothing said by the applicant from the bar table which identified any arguable case of relevant error.

3. Accordingly, the application in a case is dismissed.

I certify that the preceding forty-four (44) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 18 November 2019 and the parties were provided sealed copies of the Court’s orders

Associate:  

Date:  13 February 2020