Biy17 v Minister for Immigration and Border Protection
[2018] FCA 1914
•8 November 2018
FEDERAL COURT OF AUSTRALIA
BIY17 v Minister for Immigration and Border Protection [2018] FCA 1914
Appeal from: BIY17 & Anor v Minister for Immigration & Anor [2018] FCCA 2076 File number: NSD 1296 of 2018 Judge: LEE J Date of judgment: 8 November 2018 Catchwords: MIGRATION – appeal from the Federal Circuit Court – whether the primary judge erred in failing to find that the Administrative Appeals Tribunal failed to consider certain claims made by the appellant Legislation: Federal Court Rules 2011, r 36.75(1) Date of hearing: 8 November 2018 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 17 Solicitor for the First Appellant: The First Appellant appeared in person with the aid of an interpreter Solicitor for the Second Appellant: The Second Appellant did not appear Counsel for the First Respondent: Mr M J Smith Solicitor for the First Respondent: Mills Oakley Solicitor for the Second Respondent: The Second Respondent submitted save as to costs ORDERS
NSD 1296 of 2018 BETWEEN: BIY17
First Appellant
BIZ17
Second Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
LEE J
DATE OF ORDER:
8 NOVEMBER 2018
THE COURT ORDERS THAT:
1.The appeal be dismissed with costs with the appeal of the second appellant being dismissed pursuant to r 36.75(1) of the Federal Court Rules.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(Revised from the transcript)LEE J:
This is an appeal by a husband and wife. The husband, who has appeared today, has claimed to fear harm in his own right, whereas his wife has claimed that she was entitled to a protection visa by reason of her membership of her husband’s family unit. I will come back to the position of the wife later in these reasons.
The appellants appealed a decision of the Federal Circuit Court, which dismissed the appellants’ claim in relation to a decision of the second respondent, the Administrative Appeals Tribunal (Tribunal), which, in turn, had affirmed a decision of a delegate of the first respondent, the Minister for Immigration and Border Protection (Minister), that the appellants are not persons in respect of whom Australia owes protection obligations.
The notice of appeal initially contained three grounds which were as follows:
1.The Court below erred in finding that the [Tribunal] had failed to properly consider the Appellant’s (sic) claims under s36 (2) (aa) of the Migration Act 1958 (“the Act”).
2.I am still waiting for the reasons for Judgement for the decision of the Federal Circuit Court.
3.The Tribunal failed in its duty to engaged (sic) in active intellectual process to consider relevant consideration.
The second ground of appeal can be put to one side, and reflects the fact that the appeal was filed prior to the revision of the primary judge’s ex tempore reasons.
The grounds are particularised in such a way as to make precisely what is contended by the appellants somewhat opaque. Doing the best that I can, it appears that the appellants seek to reagitate the matters that were raised before the primary judge, and supplement their contentions by an assertion that the primary judge fell into error by rejecting the basis upon which judicial review was sought below.
In these circumstances, it is necessary to pay attention to the way in which the case was conducted before the primary judge. There were essentially two grounds of review, the second of which had two components. It is convenient to deal with each in turn.
FIRST GROUND OF REVIEW
The appellants asserted both before the primary judge (and also contended before me) that the Tribunal failed to consider a claim that the wife would suffer sexual harassment and assault. This was a claim that had been articulated in a statutory declaration made by the husband on 1 March 2017. In the statutory declaration made on that date, the following was stated at [7]:
Accordingly, my wife and I would be targeted and would face degrading, inhuman and cruel treatment in Bangladesh. I also fear that my wife would be subjected to sexual harassment and assault due to my issues.
(Emphasis added)
As the primary judge correctly recognised, the bolded reference to “my issues” directed attention to the claims that were summarised earlier in the statutory declaration. Those claims were based on the Bihari ethnicity of the husband, and the perception that the husband would hold a particular political opinion, and, in addition to that reason, that he would be targeted, abducted and subjected to extortion. As the primary judge noted, those claims were summarised in the husband’s submission dated 3 November 2016, and were a “distillation” of the claims made earlier in support of the protection visa application, both in writing and before the delegate.
In this sense, the assertion that the wife would be subjected to sexual harassment was inextricably linked to a consideration of the husband’s claims and was in this sense derivative. As the primary judge recorded at [10]–[11]:
In its statement of reasons, the Tribunal expressly referred to the claim concerning the applicant’s wife at [32]. At [71], the Tribunal rejected the applicant's claims based upon his Bihari ethnicity and at [72] expressly rejected the claim that the applicant’s wife would be harmed on that basis.
The Tribunal at [73], records that it had rejected other claims concerning extortion and threats on account of wealth, business success and Bihari ethnicity. At [77], the Tribunal rejects each of the applicant's claims and at [79] makes an express finding that it was not satisfied that there was a real risk that either of the applicants would be subjected to significant harm upon return to Bangladesh. There is no reason not to read the reference to significant harm as to include a consideration of serious harm, given the balance of the Tribunal’s reasons.
As can be seen, the primary judge rejected the first ground of review by reason of the fact that the Tribunal had rejected the husband’s claims and had also made an express finding that it was not satisfied there was a real risk that either of the appellants would be subjected to significant harm upon return to Bangladesh. It followed from the above that the primary judge then concluded at [12] as follows:
In combination then, the Tribunal’s findings dealt, both expressly and by implication, with the claim the subject of the first ground. The first ground is rejected.
There does not seem to me to be any basis upon which the primary judge fell into error in failing to find that this claim had been considered properly or that the reasoning of the Tribunal did not disclose some intelligible process of reasoning.
SECOND GROUND OF REVIEW – FIRST COMPONENT
The appellants also contended that the Tribunal failed to consider a claim based on the husband’s actual, as opposed to perceived, political opinion. The primary judge at [13] correctly identified that no such claim was made. His Honour pointed to the fact that in each of the statutory declarations, submissions and other evidence given by the husband, he consistently stated that he would be perceived to hold a political opinion by reason of his ethnicity. He had not advanced a claim that he actually held such an opinion and hence the Tribunal was under no obligation to consider the possibility that the husband might face harm by reason of his actual opinion. Again, there is no error disclosed in the way in which the primary judge dealt with this aspect of the second ground.
SECOND GROUND OF REVIEW – SECOND COMPONENT
This aspect of the case related to a matter repeated during the course of oral submissions today. It is common ground between the parties that in the Bengali language, the word “Razakar” is a pejorative term which stigmatises a person as a traitor or as a “Judas”. In written submissions provided below, the appellants claimed that the Tribunal had failed to consider a claim of imputed political opinion by reason of the fact that the husband had supported the Jamaat (the largest Islamist political party in Bangladesh) and as a Razakar.
The primary judge recognised, of course, that the failure by the Tribunal to consider a claim that arises on the material or that is expressly made may constitute jurisdictional error. The primary judge also recognised that the claim had been made in an interview with the delegate. Following a detailed consideration of the claim, the Tribunal, at [69] of its reasons, expressly dealt with the claim and rejected it, basing its conclusion, in large part, on what it perceived to be inconsistencies in the way in which aspects of the claim had been articulated. In short, the Tribunal stated that it did not accept that the neighbours, or a person identified by the husband, had informed relevant authorities that the husband was a war criminal or a Razakar.
Any notion that the Tribunal failed to consider the claims was rightly rejected by the primary judge.
Given that one of the appellants is absent and the other appellant is unrepresented, I have had regard to the Tribunal’s reasons more generally. It is not a superficial document, and from [34] to [79] contains detailed reasons as to why the Tribunal was not satisfied that either appellant had a well-founded fear of persecution for a Convention reason in Bangladesh. Nor was the Tribunal satisfied that there was a real risk to either of the appellants being subjected to significant harm in the event of a return to Bangladesh. Accordingly, there is no substance in the appeal grounds identified.
It is necessary, however, for me to return to the position of the wife. I am informed from the Bar table by her husband, who has appeared with the assistance of an interpreter, that she is aware of the current proceedings, but is incommoded, and cannot appear. In these circumstances, I arranged for the matter to be called outside of Court, and, following her non-appearance, indicated that I would not be disposed to deal with her claim on the basis that somehow her husband was representing her. In these circumstances, the Minister made an application under r 36.75(1) of the Federal Court Rules, which provides that if a party is absent when an appeal is called on for hearing, the opposing party may apply to the Court for an order that the appeal of that person be dismissed. There is no reason why such an order should not be made. I am fortified in my view that such a course should be adopted because, as I have explained above, the appeal has no prospects of success.
In these circumstances, I will make orders that the appeal be dismissed with costs with the appeal of the wife being dismissed under r 36.75(1).
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lee. Associate:
Dated: 30 November 2018
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