BGW16 v Minister for Immigration
[2018] FCCA 380
•26 February 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BGW16 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 380 |
| Catchwords: MIGRATION – Application for review of Administrative Appeals Tribunal decision – show cause hearing – factors considered – no arguable case raised by the grounds of the proposed substantive application – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 424AA, 424A, 476 Federal Circuit Court Rules 2001 (Cth), rr.1.06, 44.12, 44.13 |
| Cases cited: General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 |
| Applicant: | BGW16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1328 of 2016 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 11 October 2017 |
| Date of Last Submission: | 11 October 2017 |
| Delivered at: | Sydney |
| Delivered on: | 26 February 2018 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Respondents: | Mr A Keevers of Sparke Helmore |
ORDERS
The application made on 26 May 2016 is dismissed pursuant to Rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).
The applicant pay the first respondent’s costs set in the amount of $5,800.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1328 of 2016
| BGW16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 26 May 2016, seeking review of the decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 5 May 2016 which affirmed the decision of the Minister’s delegate (“the delegate”) to refuse a protection visa to the applicant.
In evidence before the Court is a bundle of relevant documents filed and tendered by the Minister (“the Court Book” – “CB”, “RE1”).
Before the Court
On 21 July 2016 various orders were made, by consent, by a Registrar of the Court for the progress of the matter. These included giving the applicant the opportunity to file any amended application and any further evidence by way of affidavit. The applicant has not filed any further evidence, nor has he filed an amended application.
The applicant appeared before a Registrar of the Court at a mention on 8 December 2016 and various orders were again made on that date, including that the matter be set down for ashow causehearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the FCC Rules”), and orders directing the applicant and the Minister to file written submissions. Both parties have filed written submissions.
Background
The applicant is a citizen of Bangladesh (CB 28). He arrived in Australia in December 2012 as an “unauthorised maritime arrival” (CB 29). On 23 December 2012, he was interviewed by an officer of the Minister’s department (CB 1 to CB 14). He applied for a protection visa which was received by the Minister’s department on 12 April 2013 (CB 15 to CB 77). With his protection visa application, the applicant provided a Statutory Declaration dated 25 March 2013 in which he set out his claims to fear harm on return to Bangladesh (CB 69 to CB 75).
Before the delegate, the applicant claimed to fear harm on the basis of his father’s and brothers’ involvement with the Bangladesh National Party (“BNP”), and resulting threats to his life from the opposing Awami League (“AL”) due to his family’s political opinion. The applicant claimed that he himself did not have any involvement with the BNP ([5] at CB 72 to [8] at CB 72 to CB 73).
He claimed to have been arrested and detained in 2007, which he says was a response by the Sri Lankan authorities to his father’s involvement with the BNP. He also claimed that the AL and the police conspired to pursue false charges against him for the abduction of a child in his village ([8] at CB 72 to CB 73 to [18] at CB 74).
The delegate refused to grant a protection visa to the applicant on 13 August 2014 (CB 94 to CB 111). The delegate found the applicant to be “evasive” and did not consider him to be a credible witness (CB 103.4). The delegate was also not satisfied that the applicant’s family members were involved in the BNP. The delegate also found that the claim relating to the abduction case against him was “not plausible” (CB 104.1).
The applicant applied for review to the Tribunal on 20 August 2014 (CB 112 to CB 113). The original Tribunal hearing was postponed due to the applicant’s father’s death, and the Tribunal hearing then occurred on 18 March 2016 (CB 137 to CB 142). The applicant was assisted by an interpreter in the Bengali language. His representative was also in attendance (CB 143 and CB 148 to CB 149).
On the morning of the hearing before the Tribunal, the applicant’s representative sent the Tribunal pre-hearing written submissions by email (CB 145 to CB 147). The purpose of the submissions was said to provide information on “changes in circumstance” relating to the applicant that had recently occurred (CB 146.6).
In summary, the applicant claimed to have recently discovered that he had been born in Burma and was actually of Rohingan ethnicity. At the hearing, and in an additional statement provided to the Tribunal on 1 April 2016, the applicant claimed to fear harm on return to Bangladesh due to his Rohingan ethnicity ([42] at CB 166 and CB 153 to CB 156).
The Tribunal affirmed the delegate’s decision on 5 May 2016 (CB 160 to CB 175). The Tribunal found that the applicant was not a credible witness and that he had “fabricated claims and concocted evidence to achieve an immigration outcome” ([55] at CB 168). It found that his family members were not involved with the BNP in the manner that he had claimed ([55] at CB 168). It rejected his claims to have been imprisoned in 2007, and to being falsely accused of child abduction ([55] at CB 168). Further, the Tribunal did not accept that the applicant was born in Burma and was of Rohingan ethnicity ([55] at CB 168).
The Tribunal set out its concerns with the applicant’s inconsistent evidence from [56] (at CB 168) to [90] (at CB 173) of its decision record. The Tribunal’s rejection of the applicant’s claims lead to its finding that the applicant was not entitled to a protection visa under the Refugees Convention criterion (s.36(2)(a) of the Act) ([91] at CB 173 to [94] at CB 174). Having regard to its findings of fact in relation the applicant’s claims to fear harm, the Tribunal also found that the applicant was not entitled to a protection visa under the complementary protection criterion (s.36(2)(aa) of the Act) ([95] - [97] at CB 174).
The Application before the Court
The application to the Court contains the following grounds (they have been numbered for convenience):
“Grounds of application:
[1] The Administrative Appeal Tribunal made a jurisdictional error when it failed to consider each integer of his claim or failed to take into account the whole of the oral and written evidence in determining whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in the Refugee Convention in Bangladesh and if not whether there are substantial grounds for believing that, as a necessary and foreseeable consequences of his being removed from Australia to Bangladesh, there is a real risk that he will suffer significant harm.
Particular: The applicant claims that whatever he forwarded oral and written evidence to the Department and the Tribunal are true and correct. The Administrative Appeal Tribunal either mistook te facts or misunderstood the facts. His representative provided a reasonable and possible oral and written evidence in support of his claim for the Protection Visa but the First Respondent and the Second Respondent did not accept as genuine.
As a truthful witness he said to the Tribunal that because of his father's long time political association with the BNP party he and his family suffered harm from the leaders and supporters of rulling Political Party Awami League. The applicant gave a solid evidence about his fear from the Awami League supporters and why he would be targated by the Awami League Party workers when he s compelled to go back to Bangladesh.
The applicant claims that he and his entire family worked for the BNP party. His father and brother worked hard for BNP and because of that his father and brother was threatened by the Awami League Party workers. Because of fear of life his father (2011) and brother (2009) left Bangladesh and went to Saudi Arbia. Father died in Saudi Arbia .He and members of his family were tortured because of his father's past active role in the BNP. He was once arrested in 2007 and harassed many times by the Awami League Party workers.
The applicant and his whole family lived in fear and the applicant decided to leave the country in 2012 because he did not have reasonable protection from local authorities. the local authorities were guided by the local Awami League Party leaders. The applicant claims the Tribunal failed to account this matter and mistook the facts.
The applicant claims that not considering the recent information about the atrocities committed by the Awami League is an error or a path leading to error, error is itself is failure to perform the statutory task imposed on the Tribunal by the Migration Act.
[2] The Tribunal made a jurisdictional error when it discared all the oral and written submission without giving any solid evidence of cumulative credibility concern in the finding of reasons.
Particular:
In the decision the AAT found that there were inconsistency between he gave at the Departmental interview, Tribunal hearing and his written claims.
Applicant claims that the Tribunal misunderstood most of the facts forwarded by him and his representative in the Tribunal.
He said that his father died in Saudi Arbia. After death he became known that his family belongs to Rohingya from Burma. The applicant is a truthfull witness when he gave evidence to the First respondent and second respondent. The applicant claims that he is from Rohingya community from Burma . He comes from Burma and born in Burma.
The applicant simply claims that in Bangladesh he will be persecuted once he will be known to the Government or the public that he is from Rohingya Community.
The Tribunal mistook the facts and believed he has fabricated the claim to make a claim for protection Visa.
The Tribunal made this issue of credibility.
He was given chance to present new evidence or expansion of his arguments in the Tribunal and he forwarded all evidence in support of his calim as a member of Rohingya Community. The Tribunal misconstrued the facts. Whatever the applicant said in support of his claim was true.
[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 AAT ignored the relevant consideration related with complementary Protection set out in s 36(2) (aa).
The harm or the mistreatment feared by the applicant on return to Bangladesh is for reason of one or more of five grounds of recognized in the Refugee Convention. During hearing the applicant made arguments that he has genuine fear of persecution because he has been recognized in Bangladesh as a member of the Rohingya community and if he is compelled to go back he will face persecution the Government and the Awami League Party workers were trying to harm him.
The applicant is sure that if he is compelled to go back to Bangladesh he will be killed by the Awami League supporters and harassed by them as it is happening now with all of them who returned to Bangladesh.
As his representative forwarded many documents of attrocities committed by the Awami League Supp01ters in Bangladesh, the Tribunal did nor account as genuine. The applicant claims that his reason for fear comes under the Complementry Protection Provision.”
[Errors in the original.]
As set out above, this matter was set down for a show cause hearing pursuant to r.44.12 of the FCC Rules.
The issue for the Court is whether the grounds of the application raise a legally arguable case for the relief that the applicant seeks. From what is noted on his application, the relief the applicant seeks is an order that the Tribunal’s decision be quashed, and that his case be returned to the Tribunal for reconsideration according to the law. The applicant also appears to seek an order quashing the decision of the delegate. If this is the case, the Court has no jurisdiction with regard to the delegate’s decision (s.476 of the Act), therefore the focus of the judgment is only in regards to the relevant Tribunal decision.
In the circumstances, if the Court cannot be satisfied that an arguable case is raised against the Minister, the application will be dismissed. Given the summary nature of any such dismissal, the application should only be struck out where there is no real question to be tried, where the claims are clearly untenable and cannot succeed (General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 especially at [8] – [9], Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598, Applicant A135/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 708 at [3] – [6] and Applicant A163/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 677 at [1]), the claims are groundless (Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62), where there is a high degree of certainty about the outcome (Agar v Hyde [2000] HCA 41; (2001) 201 CLR 552; (2001) 173 ALR 665; (2001) 74 ALJR 1219), or it is a hopeless case that would fail if it were to go to a final hearing (Xie v The Immigration Department [1999] FCA 365).
At the hearing, the applicant appeared in person. He was assisted by an interpreter in the Bengali language.
In his written submissions, the Minister correctly identified that the applicant (in his written submissions), did not address the grounds of the application to the Court filed on 26 May 2016, but appeared to seek to argue other or “additional” grounds ([20] of the Minister’s written submissions).
The Minister’s position was that the applicant had been given the opportunity to amend the grounds of his application by an order made by a Registrar of the Court. He did not do so. In the circumstances, the Minister pressed r.44.13 of the FCC Rules, to argue that the applicant was confined to the grounds of the application filed on 26 May 2016.
At the hearing, I raised the possibility that, particularly as the applicant was unrepresented before the Court, consideration should be given to whether r.44.13 of the FCC Rules should be waived pursuant to r.1.06 of the FCC Rules in the interests of justice. The Minister’s position was to leave this to the applicant to seek any such waiver.
The applicant did not do so. Nonetheless, I determined that the hearing should proceed on the basis of allowing parties to make submissions on the grounds of the application, and then to also hear from the applicant in relation to the further matters raised in his written submissions.
It immediately became apparent that the applicant had little, if no idea, of what was written in the grounds of his application, or for that matter, in his written submissions. He stated that his “friend” helped him prepare “this” (in context, I understood this to be both the grounds of the application and the written submissions which the applicant saw as being constituent parts of his application), and that he told his “friend” what to write.
The applicant claimed that he understood what his “friend” had written. However, no such understanding was exhibited when he was asked to address the grounds of the application and his written submissions. The applicant’s oral submissions were no more than a repetition of his claims to fear harm, and a complaint that in spite of the “proof” he had submitted to the Tribunal, the Tribunal did not believe him. The oral submissions did not raise an arguable case for the relief the applicant sought.
In essence, ground one of the application alleges four errors by the Tribunal.
First, the Tribunal failed to consider each integer of the applicant’s claims to fear harm. It is the case that a failure to consider a claim to fear harm as presented in evidence or submissions which is expressly made or clearly arising, or a failure to address a substantial, clearly articulated argument relying upon established facts may lead to a finding of jurisdictional error (Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593, Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244, NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FCAFC 263; (2004) 144 FCR 1 and Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389).
However, the difficulty for the applicant is that the ground of his application to the Court does not identify which integer of his claim the Tribunal failed to consider.
On the evidence before the Court, the Tribunal did consider all of the applicant’s claims, and each aspect of them. The applicant’s ground asserts that the Tribunal did not consider that “his entire family worked for the BNP”. In this circumstance, it may be that the real complaint is that the Tribunal did not accept his claims as being true. Even if this is the case, the applicant’s ground seeks impermissible merits review. No arguable case is raised by this element of ground one.
Second, ground one also complains that the Tribunal did not consider that he worked for the BNP. On the evidence before the Court, the applicant made no such claim. The claim extended to his father and brother. No arguable case arises in these circumstances because the Tribunal did not have to consider a claim that was not expressly made or clearly arising from the circumstances presented.
Third, the ground asserts that the Tribunal failed to consider all of the applicant’s written and oral evidence. Again, the ground does not identify what evidence was not considered. On the evidence before the Court, the Tribunal did consider all of the applicant’s evidence relevant to his claims, both oral and written. No arguable case arises in the circumstances.
Fourth, the applicant complains that the Tribunal did not consider recent country information about “atrocities committed by the [AL]”.
However, the Tribunal did have regard to the Department of Foreign Affairs and Trade (DFAT) country information as was required by Ministerial Direction No 56. It is the case that the choice of, and weight to be assigned to country information, is a matter for the Tribunal (NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11], Aporo v Minister for Immigration & Citizenship [2009] FCAFC 123; (2009) 113 ALD 46 at [45], VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29 at [63], MZZZW v Minister for Immigration & Border Protection [2015] FCAFC 133; (2015) 234 FCR 154 at [19] and SZUFQ v Minister for Immigration and Border Protection [2017] FCA 15 at [62]). There is no evidence that the applicant provided, or referred to, any other country information. In the circumstances, no arguable case arises from this complaint.
Ground two complains that the applicant told the truth to the Tribunal, and the Tribunal “mistook the facts” in finding that he fabricated his claims.
This complaint also seeks impermissible merits review. The Tribunal’s analysis of the applicant’s claims and evidence was comprehensive. It made findings of fact, including on credibility, that were reasonably open to it on what was before it. The Court cannot substitute its own findings of fact for those made by the Tribunal. No arguable case arises in this regard.
Ground three, at best for the applicant, may be understood as advancing the following assertions.
First, the Tribunal applied the “wrong test” in relation to its consideration of the complementary protection criterion (s.36(2)(aa) of the Act). Second, the Tribunal failed to have regard to the applicant’s documents submitted to it by his representative, which revealed the “atrocities” committed by the AL supporters.
On the evidence, I cannot see that any arguable case arises from the Tribunal’s approach to the complementary protection criterion (s.36(2)(aa) of the Act). The Tribunal’s statement as to the relevant law is set out in appropriate terms ([19] – [21] at CB 163). Its application to the facts reveals no arguable basis to assert legal error. The Tribunal was entitled to rely on anterior findings of fact expressed earlier in its decision record in considering the complementary protection criterion (s.36(2)(aa) of the Act) (SZSGA v Minister for Immigration, Multicultural and Indigenous Affairs [2013] FCA 774 and SZSHK v Minister for Immigration and Border Protection [2013] FCAFC 125; (2013) 138 ALD 26).
The applicant has not been able to identify what documents he submitted which showed the “atrocities” committed by AL supporters. This complaint also fails at the factual level.
I did consider in relation to the applicant’s reference to “documents”, whether the complaint may have been that the Tribunal failed to make inquiries about the provenance of police reports that he had provided to the delegate.
It is the case that the Tribunal is under no general duty to make inquiries (Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123 (“SZIAI”) at [1], Minister for Immigration & Citizenship v SZGUR[2011] HCA 1; (2011) 241 CLR 594 and Minister for Immigration and Multicultural and Indigenous Affairs v SGLB[2004] HCA 32; (2004) 78 ALJR 992). It is for the applicant to present evidence and make arguments to satisfy the Tribunal that the protection visa must be granted.
There may of course be certain circumstances where inquiry may be required (SZIAI at [25]). However, there is nothing in this case to indicate that the Tribunal was obliged to make any such inquiry.
As set out above, all of the applicant’s grounds either lack a factual basis on the evidence presented, or merely seek impermissible merits review. No arguable case is raised in the circumstances by the applicant’s grounds. As also set out above, at a show cause hearing the applicant is confined to the grounds of the application (r.44.13 of the FCC Rules). The applicant was previously given the opportunity to file an amended application. He did not do so.
The Minister contends that the applicant should not be able to rely on additional “grounds” that he seeks to agitate through his written submissions.
However, I did consider whether it was in the interests of justice to waive r.44.13 of the FCC Rules pursuant to r.1.06 of the FCC Rules, with particular regard to the applicant’s written submissions.
The written submissions appear to assert a breach of s.424A and s.424AA of the Act. The particulars make reference to “information” given by the applicant to the Minister’s department orally. The applicant’s complaint appears to be that the Tribunal had concerns about the credibility of his claims and the information that he gave.
The Tribunal’s subjective views of evidence is not “information” for the purposes of s.424A(1) of the Act (SZBYR v Minister for Immigration and Citizenship & Anor [2007] HCA 26; (2007) 81 ALJR 1190). Therefore, no arguable case is indicated by this complaint.
It is the case that the applicant was interviewed on two occasions by officers of the Minister’s department. The first was initially upon his arrival in Australia. On the evidence, the Tribunal noted that the applicant had been interviewed on arrival (“the entry interview”) (see the second dot point at [23] at CB 164). However, there is nothing in the evidence before the Court, or in the Tribunal’s analysis or reasoning, to suggest that the Tribunal, at any time, considered what was set out there to be information that was the reason, or a part of the reason, for affirming the delegate’s decision. The Tribunal’s assessment of the applicant’s credibility, and the Tribunal’s adverse findings, did not rely on the entry interview (see [53] at CB 167 to [76] at CB 171, noting that the references there to “Department Interview” are to the applicant’s interview with the delegate).
In relation to what the applicant orally told the delegate, the evidence suggests that the applicant gave a copy of the delegate’s decision to the Tribunal at the time of making his application for review. Before the Court, the applicant claimed that he did not give a copy of the delegate’s decision to the Tribunal. However, on the evidence before the Court, the Tribunal specifically noted that the applicant had done so. It proceeded to consider what the applicant had told the delegate based on the delegate’s report in the delegate’s decision record (CB 113 and [35] at CB 165).
Conclusion
No arguable case is raised by the grounds of the application, nor is there anything in the evidence before the Court, even at an impressionistic level, to argue that r.44.13 of the FCC Rules should be waived in the interests of justice. It is appropriate to dismiss the application pursuant to r.44.12(1)(a) of the FCC Rules. I will make the appropriate order.
I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Associate:
Date: 26 February 2018
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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Natural Justice
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Procedural Fairness
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Jurisdiction