BGK16 v Minister for Immigration
[2017] FCCA 1931
•15 August 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BGK16 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 1931 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – applicant claiming a fear of harm in Bangladesh – applicant not believed – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), s.499 |
| Cases cited: Attorney-General (NSW) v Quin (1990) 170 CLR 1; [1990] HCA 21 Minister for Immigration v SZQHH (2012) 200 FCR 223; [2012] FCAFC 45 Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 MZZJO v Minister for Immigration (2014) 239 FCR 436; [2014] FCAFC 80 |
| Applicant: | BGK16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1308 of 2016 |
| Judgment of: | Judge Driver |
| Hearing date: | 15 August 2017 |
| Delivered at: | Sydney |
| Delivered on: | 15 August 2017 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Mr L Dennis of Minter Ellison |
ORDERS
The application filed on 15 May 2016 and amended on 15 September 2016 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,600.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1308 of 2016
| BGK16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). The decision was made on 6 May 2016. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. Background facts relating to the applicant’s protection claims and the decision of the Tribunal on them are set out in the Minister’s submissions filed on 8 August 2017.
The applicant is a citizen of Bangladesh, who arrived in Australia on 6 December 2012 as an unauthorised maritime arrival.[1]
[1] Court Book (CB) 30–31
The applicant applied for a protection visa on 8 May 2013.[2] In a statutory declaration provided in support of that application,[3] he claimed that he was born into a politically active family (supporting Jamaat-i-Islami (JI)) and that his family experienced harm from the rival Awami League and the police. The applicant made claims of certain incidents occurring in Bangladesh prior to, and after, his departure that resulted from this political affiliation. He claimed that he would be harmed in Bangladesh from the Awami League and its supporters in the future.
[2] CB 17–93
[3] CB 68–72
The applicant was interviewed by a delegate of the Minister (delegate) on 19 September 2014.[4] Following the interview, the applicant's representatives provided a written submission to the Minister's Department.[5]
[4] CB 132
[5] CB 110–113
On 31 October 2014, the delegate refused to grant the applicant a protection visa.[6] The delegate did not accept that the applicant's protection claims were credible.
[6] CB 127–143
The applicant subsequently applied to the Tribunal for review of the delegate's decision by application dated 26 November 2014.[7] In support of that review application, on 11 January 2016 the applicant's representatives provided a written submission to the Tribunal.[8]
[7] CB 144–145
[8] CB 157–184
The applicant appeared at a hearing before the Tribunal on 1 March 2016 to give evidence and present arguments, with the assistance of his representative and a Bengali interpreter.[9] Following the hearing, the applicant's representatives provided a further written submission[10] and a psychological report[11] to the Tribunal.
[9] CB 216–219
[10] CB 225–228
[11] CB 236–243
On 6 May 2016, the Tribunal affirmed the decision under review.[12]
[12] CB 254–273
Tribunal decision
The Tribunal doubted the truthfulness of the applicant's claimed experiences in Bangladesh for the following reasons:
a)his claims were unsubstantiated from any external source, and were brief and largely devoid of circumstantial detail, leading the Tribunal to conclude that his responses at the hearing did not reflect “any authentic, first-hand experience of the events he describes”;[13]
b)his claim that he was targeted by the Awami League because of his father's involvement in JI, when he personally had no involvement, was “highly implausible” given his remaining family in Bangladesh continued to remain free of physical harm in their own home;[14]
c)his claim that he was of adverse interest to the police was equally unconvincing;[15] and
d)there were significant inconsistencies in the accounts he had given of his claimed experiences at various stages since arriving in Australia, which “cast strong doubt overall on the credibility of [his] claims about his experiences in Bangladesh”.[16]
[13] at [25]
[14] at [26]
[15] at [27]
[16] at [28]–[29]
The Tribunal thereby rejected the factual basis of the applicant's protection claims.[17]
[17] at [29]
The Tribunal noted the psychological report provided after the Tribunal hearing, which had diagnosed the applicant as suffering from post-traumatic stress disorder; however, it gave that diagnosis no weight given that it was entirely based on the applicant's assertion of his protection claims and was not an independent assessment of the reliability of those claims or his symptoms.[18]
[18] at [30]–[32]
The Tribunal also found that the applicant did not face harm as a failed asylum seeker on the basis of relevant country information.[19]
[19] at [33]–[35]
Consequently, the Tribunal found that the applicant did not satisfy either the refugee criterion or the complementary protection criterion.[20]
[20] at [36]–[38]
The present proceedings
These proceedings began with a show cause application filed on 15 May 2016. The applicant filed an amended applicant on 15 September 2016
When I asked the applicant whether he now relied upon the amended application, he was unsure. He elected to rely upon both of them. There are three grounds with particulars in the original application and three grounds with particulars in the amended application. The grounds of the original application are:
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.
2. The tribunal failed to assess my harm on the basis of my claims.
3. The tribunal failed to assess the present situation in Bangladesh since I left.
Particulars:
AAT unreasonably raised doubt over my claims for Jamaat-I-Islami activists. The Department and the Tribunal misunderstood or misconstrued the facts which was effect the decision.
And for the safety of my life I forced to leave Bangladesh and I came to Australia by boat. When it became worse, I decided to leave Bangladesh.
I argue that the Department and the Tribunal asked many irrelevant questions to test the credibility of my evidence.
The Department and the Tribunal found inconsistency because the questions were asked in such a manner for which I was not prepared. I was nervous and confused at the time of interview with the Department.
For the protection of my life and I became serious target by the present autocratic Awami League Government.
The Department has accepted that I was very confused. I, myself was not understanding what answer I was giving for what question. I will provide more details in my Amendment Application.
I believes I was denied procedural fairness when the hearing was conducted not freely and fairly.
(errors in original)
The grounds of the amended application are:
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:
AAT unreasonably raised doubt over my involvement with the Jamaat-i-lslami party and my life is in danger. The Department and the Tribunal misunderstood or misconstrued the facts. Migration Advisor for the applicant's motivation to Jamaat-i-lslami politics, my activities and role in the Party. I was an activist of Jamaat-i-lslami.
My claims that there are many Jamaat-i-lslami leader worker and also low profile activists are persecuted like me. Present Awami League government killed more than 10,000 Jamaat-i-lslami. Till today not a single Jamaat-i-lslami supporter are without target of present autocrat Awami league government. Most of my leaders & workers dead by cross fire and My all top leaders are hung by the legal custody with the camera trial by the name of International war criminal Tribunal. And a huge amount of worker & supporter is killed by without any trail like cross fire. The reports are in the Amnesty International Organization. As I stated earlier that I was attacked by the Awami league cadres.
When Bangladesh Political situation for the Jamaat-i-lsiami Party became worse, I decided to leave Bangladesh.
I argue that the Department and the Tribunal asked many irrelevant questions to test the credibility of my evidences to support my claims.
The Department and the Tribunal found inconsistency because the questions were asked in such a manner for which I was not prepared. I was sick, nervous and confused at the time of interview because of my tortures by the present government.
The Tribunal raised the question about telling these things now, and raised the question why I did not mention earlier in the Statutory Declaration with the Original Application. I am collecting my oral evidence CD and will provide transcript some time later.
For the protection of my life I leave Bangladesh to Australia full life risk by the boat.
The tribunal member did not believe that and AAT raise question of credibility.
The Department has accepted that I was very confused. I, myself was not understanding what answer I was giving for what question. The Department told the applicant first understand then give answer. I am not a qualified person to professional interrogation and I was totally nervous. I also provided my mental health conditions.
I believe I was denied procedural fairness when the hearing was conducted not freely and fairly.
I claim that the AAT made 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. Only depend on the DFAT reports. ·· ·
Particulars:
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 Jamaat-I-lslami party activists. AAT made unreasonable doubt about my claims and evidences related with my claims.
The Department and the Tribunal made opinion with the closed mind. I claim that I left Bangladesh because of attack and torture by the supporters of Awami League. I 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.
The AAT did not account any evidence of real chance of risk despite the facts of my situation in Bangladesh.
The Tribunal made a jurisdiction error when it did not consider my claims under the Complementary Protection Clauses.
Particulars:
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.
The Tribunal did not consider that how I came to Australia by boat taking high risk of life. The AAT ignored intentionally the relevant consideration related with complementary protection set out in s 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. I refer Jamaat-i-lslami party information independent media and organizations.
The AAT ignored real test of persecution and made decision with closed mind.
(errors in original)
Ground 1 in both applications essentially cover the same ground, and there is some similarity in the particulars, but also some differences.
Both the applicant and the Minister have filed written submissions in advance of today’s hearing.
In addition, the Minister filed a Court book on 20 July 2016 which I received as evidence.
The applicant filed a short affidavit with his original application which annexes the Tribunal decision. He did not press for its receipt into evidence and I did not receive it.
I invited the applicant to make oral submissions in relation to his two applications and his written submissions, which traversed a different question, namely, whether the Tribunal decision is irrational and whether the Court should apply a sliding scale of irrationality by reference to the type of matter giving rise to the question. He was only able to make submissions concerning his fear of returning to Bangladesh. He was not able to address any of the legal questions.
There may be some academic debate about the question of whether there should be a sliding scale for irrationality in human rights or humanitarian cases. In my view, however, there is no support for the proposition in the available authorities, in particular, the High Court decisions in Minister for Immigration v SZMDS[21] and Minister for Immigration v Li[22]. In any event, regardless of what test one applies for irrationality, there was, in my view, nothing irrational about the Tribunal’s analysis and its conclusions drawn from that analysis.
[21] [2010] HCA 16
[22] [2013] HCA 18
The assertion in both applications that the Tribunal failed to take into account relevant considerations and thus acted without jurisdiction is on analysis not supported by the particulars. It is apparent from the material in the Court book that the Tribunal considered all elements or integers of the applicant’s claims. Likewise, the assertion that the Tribunal failed to assess the applicant’s claims of harm is not supported by the available material. This is so, whether it is formulated in the second ground in the first application or the second ground in the amended application.
The assertion in the second ground of the original application, that the Tribunal failed to assess the applicant’s claims is clearly incorrect.
Ground 3 in the original application asserts that the Tribunal failed to assess the present situation in Bangladesh. The Tribunal had regard to current country information and considered the applicant’s asserted fears of returning there. The difficulty for the applicant is that his claims were not accepted. The Tribunal also assessed the applicant’s claims lawfully in relation to the complementary protection criteria. Again, the available material does not support the assertions in the original and amended applications.
I agree with the Minister’s submissions on the grounds in the amended application.
Ground 1
Ground 1 of the amended application contends that the Tribunal “failed to take into account relevant considerations” and is followed by a series of discursive particulars. This ground, as particularised, fails to identify any “relevant considerations” which the Tribunal was bound to consider but failed to do so.[23]
[23] Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40 at 40
The particulars to this ground are primarily directed at challenging the Tribunal's assessment of the risk of harm faced by the applicant in Bangladesh in the future and the Tribunal's rejection of the credibility of his protection claims. In the absence of identifying some arguable jurisdictional error in the Tribunal's decision, the particulars demonstrate the applicant's emphatic disagreement with the Tribunal's adverse findings and thereby seek impermissible merits review. The Tribunal considered the applicant's claims and evidence and made findings that were open to it for the reasons it gave. The Tribunal's adverse credibility findings did not lack a logical or probative basis.[24]
[24] CQG15 v Minister for Immigration [2016] FCAFC 146 at [37]
To the extent that the applicant takes issue with the questions asked by the Tribunal at the hearing, the only evidence of what occurred at the hearing is that set out in the decision record and [17] of that decision record demonstrates that the Tribunal undertook a legitimate exploration of the applicant's protection claims at the hearing.[25]
[25] cf. MZZJO v Minister for Immigration (2014) 239 FCR 436; [2014] FCAFC 80 at [47]
Ground 2
Ground 2 of the amended application fails for the following three reasons.
First, the Tribunal's decision record clearly demonstrates that it applied the real chance test in the context of considering the refugee criterion, and the real risk test in the context of considering the complementary protection criterion.[26] The applicant's contention that the Tribunal did not apply these tests is without foundation.
[26] especially at [33]–[39]
Secondly, the Tribunal was legally required to take into account country information assessments prepared by the Department of Foreign Affairs and Trade to the extent it determined such assessments to be relevant (s.499 of the Migration Act 1958 (Cth) and Ministerial Direction No. 56, both referred to at [8]). Ultimately, the Tribunal’s choice of country information, and the weight it gave to that country information, was a matter for it in the course of its fact‑finding function.[27]
[27] NAHI v Minister for Immigration [2004] FCAFC 10
Thirdly, to the extent that the applicant contends that the Tribunal had a closed mind, that is an unsubstantiated allegation of bias that cannot succeed on the current evidence. The applicant has provided no evidence to support this allegation which is serious and must be “distinctly made and clearly proved”.[28] Further, there is nothing before the Court which demonstrates that a fair‑minded lay person might think that the Tribunal did not bring a fair and impartial mind to the making of the decision.[29] Moreover, it would be a rare case in which apprehended bias could be made out on the basis of the Tribunal's reasons alone.[30]
[28] Minister for Immigration v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 at [69]
[29] Minister for Immigration v SZQHH (2012) 200 FCR 223; [2012] FCAFC 45 at [37]
[30] Minister for Immigration v SZNPG [2010] FCAFC 51 at [18]
Ground 3
Ground 3 contends that the Tribunal did not consider the applicant's claims against the complementary protection criterion. As noted above, the Tribunal's decision record clearly demonstrates that it assessed the applicant's claims against both the refugee criterion and the complementary protection criterion. The applicant's contention that the Tribunal did not consider his claims against the complementary protection criterion is without foundation.
Insofar as the particulars to Ground 3 assert that the applicant satisfies the complementary protection criterion, such an assertion seeks to invite the Court to undertake impermissible merits review of the Tribunal's decision. The Court cannot review the merits of the Tribunal's decision.[31]
[31] Attorney-General (NSW) v Quin (1990) 170 CLR 1; [1990] HCA 21 at 35–36; Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at 272
I conclude that the applicant is unable to demonstrate that the Tribunal decision was affected by any jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
In consequence of the dismissal of the application, the Minister seeks an order for costs, fixed in the sum of $5,600. The applicant claims impecuniosity, but as has been repeated and stated, that is not a reason for the Court to refrain from making a costs order. I accept that the applicant has applied for a fee waiver in these proceedings. As I explained to the applicant, an order for fixed costs creates a debt. The unsuccessful litigant in these circumstances is entitled to ask that the cost be written off or waived by reason of hardship. That is beyond the scope of this proceeding.
I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,600.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 17 August 2017
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Natural Justice
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Jurisdiction
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