BMO15 v Minister for Immigration and Border Protection
[2016] FCA 212
•4 March 2016
FEDERAL COURT OF AUSTRALIA
BMO15 v Minister for Immigration and Border Protection [2016] FCA 212
Appeal from: BMO15 v Minister for Immigration and Border Protection & Anor [2015] FCCA 2909 File number: NSD 1485 of 2015 Judge: PAGONE J Date of judgment: 4 March 2016 Catchwords: MIGRATION – Application for extension of time to file notice of appeal from decision of Federal Circuit Court – Judicial review of Administrative Appeals Tribunal (Migrants and Refugees Division) – No prospects of successful appeal – Application dismissed. Legislation: Migration Act 1958 (Cth)
Federal Court Rules 2011 (Cth)
Federal Circuit Court Rules 2001 (Cth)
Cases cited: Minister for Immigration Ex Parte Durairajasingham (2000) 168 ALR 407
Parker v R [2002] FCAFC 133
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152
Date of hearing: 4 March 2016 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 13 Counsel for the Applicant: The applicant appeared in person, assisted by an interpreter Counsel for the First Respondent: Mr L Dennis of Minter Ellison Counsel for the Second Respondent: The second respondent submits, save as to costs ORDERS
NSD 1485 of 2015 BETWEEN: BM015
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
PAGONE J
DATE OF ORDER:
4 MARCH 2016
THE COURT ORDERS THAT:
1.The application be dismissed with costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(Revised from transcript)PAGONE J:
This is an application for an extension of time to appeal from a decision of the Federal Circuit Court made on 28 October 2015 dismissing, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), an application for judicial review of a decision made by the Refugee Review Tribunal on 28 June 2015. The applicant was unrepresented at the hearing, but was assisted by an interpreter.
Rule 36.03 of the Federal Court Rules 2011 (Cth) provides that an appeal from a decision of the Federal Circuit Court must be made within 21 days of the decision. In this case the applicant had until 18 November 2015 to file a notice of appeal from the decision which had been made on 28 October 2015. The applicant did not appeal within that time, but on 24 November 2015 applied for an order for an extension of time to file a notice of appeal against the decision of the Federal Circuit Court. The application was only six days late and the Minister concedes both that he would not suffer any prejudice if leave were to be granted, and that the delay has been explained as resulting from (a) not receiving the written reasons for judgment during the period to file the notice of appeal, (b) financial hardship, (c) a lack of knowledge about the time limit to file the appeal, and (d) that while he had sought legal assistance, he had been given no information except that the last date for making his application was 24 November 2015 while the correct date was 18 November 2015. The Minister submitted, however, that leave should not be granted because the grounds in the draft notice of appeal disclosed no reasonable prospects of success.
The principles to apply in considering whether to exercise the Court’s discretion to extend the time within which to file an appeal under the former O 52 r 15 of the Federal Court Rules, now found under r 36.05 of the Federal Court Rules, were considered by the Full Court in Parker v R [2002] FCAFC 133. At paragraphs [6] and [7] the Court said:
6In the civil jurisdiction, Wilcox J discussed at some length the matters which, in his opinion, were deserving of consideration when considering an application for leave to extend the time within which to file a notice of appeal: see Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344, a decision under the Administrative Decisions (Judicial Review) Act 1977 (Cth). The matters which attracted his Honour’s attention were set out at 348-349:
1.applications for an extension of time are not to be granted unless it is proper to do so; the legislated time limits are not to be ignored. The applicant must show an “acceptable explanation for the delay”; it must be “fair and equitable in the circumstances” to extend time;
2.action taken by the applicant, other than by way of making an application for review, is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished;
3.any prejudice to the respondent in defending the proceedings that is caused by the delay is a material factor militating against the grant of an extension;
4.however, the mere absence of prejudice is not enough to justify the grant of an extension; and
5.merits of the substantial application are to be taken into account in considering whether an extension of time should be granted.
7There is no reason why these matters or guidelines, even though they were composed with respect to an application in a civil matter, should not also apply (and several authorities have decided that they do apply) in the criminal jurisdiction, save that where the liberty of the individual is at stake, the Court may be a little more lenient to an applicant in the exercise of its discretion.
The prospects of success of an appeal is a matter to be considered when deciding whether to grant an extension of time to commence an appeal. No purpose is served by granting an extension of time to lodge an appeal which must fail or cannot succeed.
The applicant’s draft notice of appeal sets out four matters as grounds. The applicant also filed written submissions, dated 29 February 2015, which arguably set out three additional matters that could be grounds of appeal but which were not contained in the draft notice of appeal. The Minister filed written submissions in relation to the four matters in the draft notice of appeal and made oral submissions on the three additional matters in the applicant’s written submissions notwithstanding that the written submissions had been filed outside the time required by the directions for the filing of submissions which had been made in this proceeding on 26 November 2015.
The applicant is a Bangladeshi citizen who entered Australia as a direct offshore entry person on 15 June 2012. He applied for a protection visa on 21 January 2013 and provided a statutory declaration, dated 16 January 2013, setting out his claims for protection. The applicant claimed to fear persecution due to his imputed political opinion as a member of a particular social group, being people who refuse to join a political party in Bangladesh. The applicant claimed to have left Bangladesh because he claimed he would have been required to join one of the Bangladesh political parties and involve himself in fighting between rival parties. The applicant claims that a group of unidentified people whom the applicant suspects were members of the underground political party called the Sarbahara Party kidnapped the applicant in December 2011 and took him to a field at his home and asked him to join the Awami League party and threatened to kill him if he did not join. The applicant fears returning to Bangladesh, as he fears he will be killed or continually harassed by these parties because of his imputed political opinion if he joins one party or does not join the other, and as being a member of a particular social group as a person who refuses to join one of the political parties. He also sought complementary protection based on the claimed facts giving rise to his fear of persecution.
The draft notice of appeal sets out four matters as grounds of appeal, namely:
1.Hon. Judge STREET of the Federal Circuit Court failed to hold that Refugee Review Tribunal committed a jurisdictional error when it failed to apply the correct test in relation to the Complementary Protection Provision contained in section 36 (2) (aa) of the Migration Act. The RRT failed to separate the Claim to be Refugee and the fear of harm test for the provision of Complementary Protection. The Tribunal failed to understand that the complementary Protection criteria is intended to introduce greater efficiency, transparency and accountability into Australia’s arrangements for adhering to its non-refoulement obligation under the International Covenant on Civil and Political Rights (ICCPR). The Hon. Judge ignore to hold that the RRT totally overlooked the intention behind introduction of Complementary Protection.
2.The Hon. Judge failed to hold that the Tribunal exceeded its jurisdiction or constructively failed to exercise its jurisdiction.
3.The Hon. Judge failed to hold that the Tribunal made inconsistent assertions on the credibility testimony. He was denied procedural fairness.
4.The appellant claims that he was denied natural justice and procedural fairness when his amended application was dismissed without any explanation of reasons given at the time of hearing. His application was dismissed only on the assumption that the appellant has no grounds for his case.
The first ground in the draft notice of appeal contends that the Federal Circuit Court erroneously failed to decide that the Tribunal had failed to apply the correct test in relation to the refugee and complementary protection criteria. However, that contention is not made out when the decision of the Tribunal and of the Federal Circuit Court are considered. The Tribunal considered these issues in its reasons at paragraphs [7] to [21] and [72] to [75] as follows:
7.The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
8.Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
9.Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1 A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
10.Sections 91R and 91S of the Act qualify some aspects of Article 1 A(2) for the purposes of the application of the Act and the Regulations to a particular person.
11.There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
12.Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.
13.Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.
14.Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(I)(a) of the Act.
15.Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
16.In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1 A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.
17.Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.
18.If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).
19.‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading (treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
20.There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
21.In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration - PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines - and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
[…]
72.The Tribunal has considered whether the combination of each of the individual claims raised by the applicant and his agent would together create a real chance of him being subjected to serious harm in Bangladesh in the reasonably foreseeable future. Having carefully considered the cumulative effect of these factors and attributes in light of the information and evidence before it, and given its reasons in relation to each factor, the Tribunal does not accept that there is a real chance the applicant would face serious harm for these reasons if he returns in the reasonably foreseeable future.
73.Based on all the evidence before it, including the applicant’s claimed past circumstances and what is accepted of his current personal and family circumstances and profile in Bangladesh, the Tribunal is not satisfied that the applicant faces a real chance of serious harm for any of the reasons claimed or arising on the evidence, either singularly or cumulatively, for a Convention reason, in the reasonably foreseeable future. It follows that the Tribunal is not satisfied that the applicant faces a well-founded fear of persecution in Bangladesh for a Convention reason in the reasonably foreseeable future. Accordingly, the Tribunal is not satisfied that the applicant is a refugee under section 36(2) (a) of the Act.
74.The Tribunal has also considered whether the applicant is eligible for complementary protection. Findings have been made above in this regard. I have also considered the information as raised by the applicant’s representative at the Department interview, submissions and Tribunal hearing.
75.The Tribunal has considered whether the combination of each of the individual claims raised by the applicant and his agent would together create a real risk of him being subjected to significant harm on return to Bangladesh. Having carefully considered the cumulative effect of these factors and attributes in light of the information and evidence before it, and given its reasons in relation to each factor, the Tribunal does not accept that 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 that he will suffer significant harm as defined in subsection 36(2A).
The Federal Circuit Court subsequently dismissed the claim that the Tribunal had erred and said in paragraphs [15] to [16] of its reasons the following:
15.In relation to ground 3, it is clear that the Tribunal correctly identified the real-chance test in relation to the issue of the applicant’s alleged genuine fear of persecution and that the Tribunal applied that test in the adverse findings, relevantly, in paras.72 and 73 that referred to real chance. It is equally clear that the Tribunal identified the real-risk test in relation to significant harm in respect of complementary protection and that test was correctly applied relevantly in para.75 of the Tribunal’s reasons.
16.There is no substance in the assertion in ground 3 that the Tribunal failed to apply the correct test, either in relation to s.36(2)(a) or in relation to s.36(2)(aa). In substance, the particulars, which refer to the adverse findings in relation to complementary protection, appear to be an impermissible challenge to those adverse findings that were open to the Tribunal. Ground 3 fails to make out any jurisdictional error.
There is, therefore, no respect shown in which the Tribunal or the Federal Circuit Court failed to apply the correct test in relation to the complementary protection provision in section 36(2)(aa) of the Migration Act or for complementary protection, or failed to understand that the complementary protection criteria is intended to introduce greater efficiency, transparency or accountability into Australia’s arrangements for adhering to its non‑refoulement obligation under the international covenant on civil and political rights. His Honour did not ignore, and the Tribunal did not ‘totally overlook’, the intention behind the introduction of the complementary protection.
The second matter in the draft notice of appeal contends that the primary judge failed to hold that the Tribunal “exceeded its jurisdiction or constructively failed to exercise its jurisdiction”. The claim, however, identifies no detail in respect of which such a general claim could be supported, and accordingly it lacks any foundation to succeed.
The third matter in the draft notice of appeal makes another broad claim without a basis that would enable the claim to be identified and evaluated. There are no details of any inconsistencies or any respect in which procedural fairness was said to be denied. The matters raised in the third ground at best seek this Court to engage in impermissible merits review. However, it was open to the Tribunal to find that the applicant was not a credible witness on the evidence and materials available to it (see Minister for Immigration Ex Parte Durairajasingham (2000) 168 ALR 407 at paragraph [67]). The decision of the Federal Circuit Court exposed no defect in the Tribunal’s reasoning in relation to the applicant’s credibility that would suggest any error in its approach. From the written reasons for decision of the Tribunal it is clear that the applicant was invited to, and that he attended, a hearing where he was afforded sufficient opportunity to give evidence and to present arguments about his credibility, which was a determinative issue on review (see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; “SZBEL”). There is nothing in the decision of the Federal Circuit Court that suggests a misunderstanding of the High Court’s decision in SZBEL.
The fourth matter in the draft notice of appeal claims that the applicant was denied procedural fairness when the Federal Circuit Court dismissed his application at the hearing without giving reasons. In fact, however, his Honour gave ex tempore reasons – that is, oral reasons – which were subsequently converted into a written judgment. Accordingly, there is no foundation for this ground.
The applicant’s written submissions might arguably contain three additional matters as possible grounds of appeal. The first is a complaint that the Tribunal had not considered an incident in 2012. The submission says the following on page 3:
Despite the fact that the Tribunal accepted that there was a clash between the Awami League Party and BNP activists in August 2012, in the applicant’s village and a BNP activists was killed.
The Applicant was truthful witness in giving oral and written evidence.
When the applicant gave a written evidence of killing of BNP activist Mr Abdul Biswas, the Tribunal varified and found that it is fact that on 21 August 2012 Abdul Biswas was killed in a clash between BNP and Awami League activists in the applicant’s village and some people houses were attacked at or around the time of incident.
It is clear from the Tribunal’s decision, however, that this incident was considered by the Tribunal. At paragraph [43] the Tribunal said:
43.In making this finding the Tribunal accepts there was a clash between the Awami League and BNP activists in August 2012 in the applicant’s village and a BNP activist was killed. Information submitted by the applicant and independently verified by the Tribunal indicates that on 21 August 2012 Abdul Biswas, a BNP activist was killed in a clash between BNP and Awami League activists in the applicant’s village and that some people’s houses were attacked at or around the time of the incident. However, while the Tribunal accepts such a clash occurred between the activists of the BNP and Awami League parties and some others were injured and 10/12 houses were attacked and robbed, the Tribunal does not accept for the reasons that follow that the applicant is credible that the applicant’s family faced any of the difficulties they claim, including their house being burnt down, or crops being destroyed or that afterwards they had to pay a bribe to the BNP for safety or that they were in any way targeted.
Accordingly, there is no substance to this claim, if it were to be made.
The second additional matter is a complaint that the Tribunal failed to consider recent country information. The applicant’s written submission states at page 2:
1.Hon. Judge Street failed to hold that the Refugee Review Tribunal made a jurisdictional error when it failed to consider each integer of his claim and or failed to take into account the whole of the oral and written evidence in determining whether he feared persecution claimed amounted to persecution and serious harm within the meaning of s 91 R of the Migration Act.
The Tribunal failed to account this matter and mistook the facts.
The applicant claims that the Tribunal failed to consider more recent information with regards to the attacks on the BNP supporters by the supporters of the Awami League Party.
The Minister construed this part of the submissions as a claim that the applicant had been a member of the BNP, but in oral submissions the applicant amplified the claim and explained that the incident in 2012 to which he referred was not one in which he participated as a member of BNP, but rather that both parties put pressure on people like him to join a party. The claim in the written submissions is therefore consistent with the claim as the applicant has made it in the past. In any event, the complaint of a failure by the Tribunal to take into account more recent country information cannot be made out on the material. The applicant had supplied little country information, but the Tribunal did take into account country information as can be seen from paragraphs [22] and [55] of the Tribunal’s reasons:
22.The Tribunal has before it the Department’s file relating to the applicant. The Tribunal also has had regard to the material referred to in the delegate’s decision, and other material available to it from a range of sources. This includes, but is not limited to, the following.
ŸThe applicant’s protection visa application of 21 March 2013, identity documents and attached statutory declaration.
ŸOral evidence of the applicant provided at the Department interview on 7 January 2014 and the Tribunal hearing on 2 February 2015.
ŸSubmissions by the applicant’s representative received 28 February 2014, 28 January 2015 and 2 February 2015 including country information referred to and contained within the submission, as well as submissions made at the hearing and Department interview.
ŸDepartment of Immigration - PAM3 Refugee and Humanitarian Complementary Protection Guidelines and PAM3 Refugee and Humanitarian -·Refugee Law Guidelines.
[…]
55.In making this finding the Tribunal has considered that neither the DFAT Country Report on Bangladesh of 20 October 2014 nor any country information submitted by the applicant indicates or refers to people who refuse to join a political party being targeted.
Accordingly, there is no foundation to this ground, if it were to be made.
The third possible new ground in the written submissions is that the Tribunal decided with a closed mind, and that it had formed an opinion about the incident of 22 August 2012. The applicant’s written submission states at page 3:
The Tribunal made decision with closed mind and formed opinion about the incident of 21 August 2012 (Green Court Book Page AB22 Col 43-44).
There is nothing in what the Tribunal said in the paragraphs to which the applicant referred to support the claim that the Tribunal had a closed mind, or that it had previously formed an opinion about the incident. What the Tribunal said at paragraphs [43] and [44] is as follows:
43.In making this finding the Tribunal accepts there was a clash between the Awami League and BNP activists in August 2012 in the applicant’s village and a BNP activist was killed. Information submitted by the applicant and independently verified by the Tribunal indicates that on 21 August 2012 Abdul Biswas, a BNP activist was killed in a clash between BNP and Awami League activists in the applicant’s village and that some people’s houses were attacked at or around the time of the incident. However, while the Tribunal accepts such a clash occurred between the activists of the BNP and Awami League parties and some others were injured and 10/12 houses were attacked and robbed, the Tribunal does not accept for the reasons that follow that the applicant is credible that the applicant’s family faced any of the difficulties they claim, including their house being burnt down, or crops being destroyed or that afterwards they had to pay a bribe to the BNP for safety or that they were in any way targeted.
44.As to the applicant’s claim that he was targeted and kidnapped by the Sarbahara party as agents of the Awami League party in December 2011, to make him join the Awami League Party, his claim is not supported by independent information. Firstly it is his claim that the Sabahara party does the dirty work for the Awami League party and carries rifles. He said it is an underground party and they side with the party in power and do what they want. He also referred to their involvement in Hindu mattes in 2006 and having guns and being involved in collecting illegal money.
The claim was not otherwise supported by any evidence, or any submission, of any bias or predetermination that would support the claim to have any foundation or prospect of success had it been claimed.
Accordingly, the application for leave will be dismissed.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Pagone. Associate:
Dated: 9 March 2016
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