BFZ17 v Minister for Immigration

[2017] FCCA 1978

FEDERAL CIRCUIT COURT OF AUSTRALIA

BFZ17 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1978

Catchwords:
MIGRATION – application for extension of time – unsatisfactory explanation for delay – insufficient merits – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 476, 477

Cases cited:

Spencer v Commonwealth of Australia  (2010) 241 CLR 118

Applicant: BFZ17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 867 of 2017

Judgment of: Judge Street

Hearing date: 18 August 2017

Date of Last Submission: 18 August 2017

Delivered at: Sydney

Delivered on: 18 August 2017

REPRESENTATION

The applicant appeared in person.

Solicitors for the Respondents: Ms D Watson
Australian Government Solicitor

ORDERS

1. The application for an extension of time under s.477 of the Migration Act 1958 (Cth) is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $3,667.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 867 of 2017

BFZ17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

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 Administrative Appeals Tribunal (“the Tribunal”) made on 31 January 2017 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. The applicant claimed to fear harm by reason of an imputed political opinion or imputed religion or membership of an actual social group. The applicant alleged that his father was a member of the Bangladesh National Party (“BNP”) and that he would regularly attend meetings.  The applicant alleged that a supporter of the Awami League observed the BNP gatherings and around March 2012 that person, with other associates, visited the shop and expressed their displeasure about the BNP gatherings and demanded the applicant’s father pay an amount.  The applicant’s father was unable to pay the full amount and the applicant alleged that his father was hit with an iron bar and slashed with a machete. The applicant alleged his father reported the incident to the police and that the police refused to assist.

3. The applicant alleged that on 10 May 2012, the relevant person’s associate’s visited the applicant’s house and fought with the applicant and his brothers. The applicant alleged that the particular person and his associates attacked the house while the applicant’s mother was at home alone and assaulted the applicant’s mother and cracked her skull and set fire to the house.  The applicant then alleged that his uncle made arrangements for the applicant to travel to Dhaka and then to leave the country. 

4. The applicant claimed that in July 2012 he travelled to Indonesia by boat. The applicant arrived in Australia by boat on 6 May 2013. On 11 June 2014, the applicant lodged his application for protection. On 21 April 2015, the delegate found that the applicant failed to meet the criteria under the Act and refused to grant the applicant a protection visa. 

Review by the Tribunal

1. The applicant applied for review on 29 April 2015. By letter dated 22 August 2016, the applicant was invited to attend a hearing on 18 October 2016. The applicant appeared on that date to give evidence and present arguments. Prior to the hearing, submissions were provided to the Tribunal under cover of email dated 17 October 2016.

2. The Tribunal set out the background to the applicant’s application for review and set out the relevant law. The Tribunal set out the applicant’s claims and evidence and summarised what occurred during the hearing before the Tribunal. The Tribunal identified the applicant’s evidence about a threat made by the particular person who is alleged to have attacked his father with other associates and to have organised for those associates to come to his home and attacked also his mother. 

3. The Tribunal asked the applicant why in relation to the new claim of a threat that he had not mentioned it before. The Tribunal found the applicant’s explanation was not consistent with his earlier claims. The Tribunal did not accept that new claim. The Tribunal identified a further new claim where the applicant alleged he will be kidnapped.  The Tribunal did not accept the applicant’s explanation in relation to why the new claim was not earlier raised. 

4. The Tribunal having considered the applicant’s claims and evidence and submissions found the applicant was not a witness of truth and found that the applicant had fabricated his material claims for the purpose of obtaining a protection visa.  The Tribunal accepted that the applicant’s father had a grocery shop and that he assists his father in the shop.  The Tribunal did not accept that the applicant’s father or brothers were members of the BNP. The Tribunal did not accept the applicant’s claims that flowed from that. The Tribunal did not accept that the applicant had any involvement with the BNP. The Tribunal did not accept that the applicant’s father or any member of his family were of adverse interest to the alleged person or his associates, the Awami League, the police or any other Bangladeshi authority. 

5. The Tribunal was not satisfied there was a real chance the applicant would suffer serious harm for reasons of his actual or imputed political opinion if he returns to Bangladesh now or in the reasonably foreseeable future. Having considered all the applicant’s claims and evidence and submissions, the Tribunal found there was no real chance the applicant would suffer persecution on the grounds of his actual or imputed political opinion if he returns to Bangladesh now or in the reasonably foreseeable future. 

6. The Tribunal referred to the applicant’s claim that he was a Christian.  The applicant also referred to a letter in support from a Reverend Watkins and the Tribunal made reference to the evidence given by Reverend Watkins at the hearing. The Tribunal found an inconsistency between the information provided by Reverend Watkins and what was said by the applicant and found that raised concerns in relation to the applicant’s credibility and the genuineness of the applicant’s conversion to Christianity. 

7. The Tribunal was of the view that if the applicant was genuinely interested in and committed to Christianity, he would have attended Sunday service regularly after he was informed about them by the Reverend, to learn as much as he could about Christianity despite language problems. The Tribunal referred to the evidence of the Reverend as to the applicant’s genuineness. The Tribunal observed that towards the end of the hearing, the applicant said his main reason for not wanting to return to Bangladesh was because of his religious beliefs and his desire to practice his religious beliefs. The applicant maintained that if people found out he had changed his religion, he would be killed. 

8. The Tribunal found that the likelihood of anyone the applicant comes into contact with in Bangladesh finding out he is involved in Christianity in Australia from Bangladesh is remote. The Tribunal identified an inconsistency in relation to the applicant staying in touch with family members and found that inconsistency raises further concerns in relation to his credibility and the genuineness of his claims to conversion to Christianity. 

9. The Tribunal was not satisfied the applicant was able to satisfactorily explain what he liked about Christianity and why he had chosen not only to abandon the religion of his forbearers or the religion he had grown up with but also to embrace a new religion. 

10. The Tribunal found that the applicant’s primary motive for getting baptised, attending Bible classes and church services was to enhance his prospects of obtaining a protection visa. The Tribunal did not accept the applicant was a genuine convert to Christianity. The Tribunal did not accept that his commitment to practice Christianity in Australia or Bangladesh. The Tribunal found the applicant had not informed his family and friends that he is a Christian. 

11. The Tribunal did not accept the applicant is at risk of serious harm or significant harm because of his activities in Australia in relation to Christianity if he returns to Bangladesh. The Tribunal did not accept that the applicant will be persecuted because of his conversion to Christianity if he returns to Bangladesh. The Tribunal found that there is no real chance that the applicant will suffer persecution on the grounds of religion if he returns to Bangladesh now or in the reasonably foreseeable future. 

12. The Tribunal made reference to the applicant’s claim that the applicant would be interviewed Bangladeshi authorities about his unlawful travel to Australia or they would torture him. The Tribunal was not satisfied there was a real chance that on return to Bangladesh the applicant would be questioned by Bangladeshi authorities about his unlawful travel to Australia or that he will be tortured by Bangladeshi authorities because they would believe he had spoken against them. The Tribunal was not satisfied there is a real chance on the applicant’s return to Bangladesh he will be treated with suspicion and kidnapped because he has lived in Australia for an extended period of time. 

13. The Tribunal was not satisfied the applicant is at risk of serious harm or significant harm on his return to Bangladesh because he is returning from the west, a failed asylum seeker or because his personal details were inadvertently disclosed by the Department on the internet for a short period of time. The Tribunal did not accept that the applicant or any member of his family is of adverse interest to the particular person or his associates. The Tribunal did not accept any of the claims that flow from that.  The Tribunal was not satisfied the applicant was at risk of serious harm or significant harm on return to Bangladesh because he is a member of his family unit.

14. Having considered all of the applicant’s claims in evidence, the Tribunal found there is no real chance that the application will suffer persecution on the grounds of his actual or imputed membership of a particular social group if he returns to Bangladesh now or in the reasonably foreseeable future. The Tribunal was not satisfied that there is a real chance the applicant will face serious harm for reason of his actual or imputed political opinion, actual or imputed religion, or actual or imputed membership of a particular social group if he returns to Bangladesh. The Tribunal was not satisfied the applicant has a well-founded fear of persecution for any of the reasons advanced by the applicant. 

15. The Tribunal found there was no real chance the applicant would be at risk of persecution on the grounds of his actual or imputed political opinion, actual or imputed religion, actual or imputed membership of a particular social group, or any other Refugee Convention reason if he returns to Bangladesh now or in the reasonably foreseeable future. The Tribunal found the applicant failed to meet the criteria under s 36(2)(a) of the Act. 

16. The Tribunal was not satisfied there are 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 he will suffer significant harm as defined in s 36(2)(a) of the Act, and found the applicant failed to meet the criteria under s 36(2)(aa) of the Act, and affirmed the decision under review. 

Before this Court

1. On 6 July 2017, a Registrar of the Court made orders providing the applicant with an opportunity to file an amended application, affidavit evidence and submissions. At the commencement of the hearing, the Court explained to the applicant that this matter was listed today for a hearing under s 447 of the Act for an extension of time.

2. The Court explained that there were three issues in relation to an application for an extension of time. First, whether the applicant had a reasonable explanation for the delay. Second, whether there is any prejudice to the first respondent, and the Court noted that no prejudice was alleged and thirdly, the merits of the application. 

3. The Court explained in relation to the merits, it is concerned whether the applicant had a reasonably arguable case and whether the Tribunal’s decision was affected by a 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. The Court explained that in summary, this meant the Court was considering whether the applicant had a reasonable argument that the Tribunal’s decision was unlawful or unfair. 

4. The Court explained that if it was satisfied the applicant had a reasonable explanation for the delay and a reasonable argument that the Tribunal’s decision was unlawful or unfair, the Court would extend time and fix the matter for hearing on another occasion. The Court explained that if not satisfied the applicant had a reasonable explanation for delay and a reasonable argument that the Tribunal’s decision was unlawful or unfair, the application for an extension of time would be dismissed with costs. 

5. The Court explained that it would have identified the evidence, then hear submissions from the applicant, then submissions from the solicitor for the first respondent and then submissions from the applicant in reply. 

6. From the bar table, the applicant sought to explain that he did not receive the decision in time, that he went to go and see a lawyer and that his lawyer delayed in responding to him. The delay in the present case is 16 days. The applicant’s explanation for the delay is not entirely consistent with the content of his application in which the applicant identifies having received notice of the decision within the time period in which an application could have been lodged under the 35 day time period. The Court accepts the first respondent’s submission that the explanation for the delay is not satisfactory in the present case. 

7. However, the material issue is whether the applicant has a sufficiently arguable case to warrant an extension of time in the interests of the administration of justice. In this regard, the Court takes into account the principles in Spencer v Commonwealth (2010) 241 CLR 118 at [20-25], [51-60].

8. The grounds of the application are as follows:

   1. He was denied procedural fairness and natural justice when in making decision, the Administrative Appeal Tribunal failed to take account relevant considerations and took into account irrelevant considerations. The AAT mistook the facts in examining the relevant facts supplied by the Applicant.

   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 . It is expected from the AA T that it would make decision based on logically probative and relevant materials.

   The main issue in this matter is that whether the Tribunal followed procedure of hearing in Judicial manner using relevant substance (oral and written evidence in support of claim for protection visa).

   The applicant claims that when the first interview was conducted on 24 June 2013 he was not asked to provide his claims in brief which is why not all his claims were give at this stage

   As stated in the decision of the AAT at page 4, it was also not explained to him required to disclose to the Department  Immigration .

   Thus, the applicant claims that the AA T and the Department did not conduct interview based on logically probative and relevant materials. At the time of first interview he was under the age of 18. The applicant claims that he was denied procedural fairness when the Tribunal made decision based on the materials which were not logically probative.

   He told to the Tribunal that when he left the country Bangladesh he was under the age of 18 and he was solely and fully supported by his father and brothers.

   Without giving the considerations of the age of the applicant and the circumstances in which his application was prepared Protection Visa application, the AAT made closed mind opinion that applicant's evidence is vague, evasive, implausible contradictory and unconvincing.

   The Tribunal failed to hold that Department of Immigration accorded the applicant mere surface formalities ( Departmental Interview ) and left the decision maker free to make a completely arbitrary decision to refuse the application .

   2. The AAT raised unnecessary doubt over the genuineness of asserted fear claimed by the applicant. The applicant's fear of persecution is based on the reason that he was bonafied committee member of the local Jamaat e Islamic Party

   Particular :

   The Tribunal discarded all of the relevant documents forwarded by the applicant in support of the claim .Applicant claims that whatever he has submitted to the Tribunal in support of his claim was true and correct in his belief.

   At the first interview on 24 June 2013 he told the Delegate that his father and his brother were involved in the Bangladesh Plitics. They were strong supporters of BNp and worked for this Party.

   The AAT did not recogonise that because of his father and brother's involvement with BNP the applicant was affected and A wami League workers harassed and tortured the applicant. The AAT raised doubts over the link between the father's involvement in politics with the applicant's claims of harms due to a member of the social Group.

   3.The Applicant claims that AAT's finding of reasons are 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.

   Particulars: The applicant fears of Persecution is based on his support to BNP and being adopted by Christianity in Australia.. The applicant told the dangers from the Awami League Party members specially from Robweil ( A Awami League Leader ) and his associates. He told to the Tribunal the Awami League activists ( Robweil )came to his house and assaulted his father and ransacked his house. Applicant said that the awami League leader beat his mother until she was unconscious.

   The applicant claims that he will face a significant harm if he goes back to his country. The applicant claims that the AA T undermined the threat from the danger The applicant claims that the Tribunal unduly adopted harsh approach in assessing the fear of harm. The Tribunal 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 AA T failed to give real reasons for not applying Complementary Protection Cretaria Under Paragraph 36 (2) (aa).

9. From the bar table, the applicant maintained that he had told the Tribunal everything and he could not understand the outcome.  Nothing said by the applicant from the bar table identified any arguable jurisdictional error.

Ground 1

1. In relation to ground 1, on the face of the material before the Court, the applicant had a real and meaningful hearing before the Tribunal. On the face of the material before the Court, the Tribunal complied with its statutory obligations in the conduct of the review. On the face of the material before the Court, the Tribunal complied with its obligations of procedural fairness in the conduct of the review. The applicant’s criticisms in relation to the interview conducted by the Department cannot give rise to any relevant legal error by the Tribunal.

1. The Tribunal correctly identified the applicant’s claims and made findings dispositive of those claims. There is no relevant consideration identified that the Tribunal failed to take into account and there is no irrelevant consideration identified that the Tribunal took into account.  The adverse findings in relation to the applicant’s credibility were the subject of logical and rational reasons by the Tribunal and cannot be said to lack an evident and intelligible justification. There is no misunderstanding of the applicant’s claims of mistake as to facts identified from the material referred to in the particulars to ground 1. No arguable jurisdictional error is disclosed by ground 1. 

Ground 2

1. Ground 2 seeks to take issue with the adverse findings by the Tribunal.  Those adverse findings for the reasons already given were open.  Ground 2 fails to identify any arguable jurisdictional error. It was a proper matter for the Tribunal to explore the applicant’s credit in the course of the review and to make credit findings. No arguable case of jurisdictional error is made out by ground 2.

Ground 3

1. In relation to ground 3, the Tribunal correctly set out the relevant law.  On the face of the material before the Court, there is no basis for finding that the Tribunal confused or failed to apply the correct test in determining the applicant’s application under the Refugees Convention or in relation to complementary protection. There is no basis to find that the Tribunal did not apply the correct test in relation to the respective criteria. Further, the Tribunal gave detailed reasons in support of the adverse findings, and it was open to the Tribunal to take into account its findings under the Refugees Convention in determining the application on the grounds of complementary protection. No arguable case of jurisdictional error is disclosed by ground 3. 

Conclusion

1. The Court is not satisfied that the merits of the application are sufficient to make it necessary in the interests of the administration of justice to make an order extending time under s 477 of the Act. Given the unsatisfactory explanation for the delay and the absence of sufficient merits, the Court is not satisfied it is necessary in the interests of the administration of justice to make an order extending time under s 477 of the Act.

2. The application for an extension of time under s 477 of the Act is dismissed.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 26 October 2017