BMY16 v Minister for Immigration
[2019] FCCA 678
•25 March 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BMY16 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 678 |
| Catchwords: MIGRATION – Migration Act 1958 (Cth) – application for judicial review of decision of Administrative Appeals Tribunal affirming decision of a delegate of the Minister for Immigration and Border Protection not to grant to the applicant a protection visa – grounds relied on seek impermissible merits review of the decisions of the Administrative Appeals Tribunal and the delegate – no jurisdictional error established – application for judicial review dismissed. |
| Legislation: Migration Act 1958 (Cth), s.414 |
| Cases cited: AWA15 v Minister for Immigration [2018] FCA 604 |
| Applicant: | BMY16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1558 of 2016 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 9 May 2018 |
| Delivered at: | Sydney |
| Delivered on: | 25 March 2019 |
REPRESENTATION
| The Applicant appeared in person. |
| Counsel for the First Respondent: | Mr A. Day |
| Solicitors for the First Respondent: | DLA Piper |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
The Application filed in this Court on 21 June 2016 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1558 of 2016
| BMY16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant in this proceeding is a male citizen of Bangladesh aged 41 years, having been born on 5 January 1978.
By Application filed in this Court on 21 June 2016 he seeks to quash and have re-determined the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 26 May 2016 which affirmed the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 12 December 2014 refusing to grant to him a Protection (Class XA) (Subclass 866) visa (Protection visa).
Background
The Applicant arrived in Australia on 6 May 2013 as an unauthorized maritime arrival. He had departed Bangladesh on 28 February 2013. He boarded a fishing trawler in Chittagong and travelled to Thailand where he stayed for around five days. He then travelled to Malaysia where he stayed for eight days before going to Indonesia where he remained for around 20 days. The Applicant then travelled from Indonesia to Australia.
An early interview was conducted at the Wickham Point Immigration Detention Centre on 5 June 2013 by an officer of the Minister. On 13 August 2013 the Applicant lodged his Protection visa application.
Claims for Protection
In his Declaration dated 31 July 2013 (Declaration) submitted in support of his Protection visa application, the Applicant advanced the following claims:
a)his ethnicity is Bengali, his religion is Sunni Muslim, he was born in a village with a population of around 5,000, he married in 2005 and has one son. He attended primary school until year 5 level, and from 2009 found work as a builder’s labourer.
b)he was always a supporter of the Bangladesh Nationalist Party (BNP) and towards the end of 2010 he joined the BNP as an unofficial member. The BNP appealed to him because of its pro-development platform, advocacy for charity and assistance for the poor and needy in Bangladesh;
c)during election campaigns he attended rallies and encouraged friends and acquaintances to support and vote for the BNP;
d)in addition to rallying support, he would also take part in erecting posters and scouted for potential recruits to join the BNP;
e)from January 2012 he became more active within the BNP and stepped up recruitment efforts for the BNP in his village in an attempt to garner more support for the party. His activities came to the attention of Awami League (AL) opponents of the BNP, and during May 2012 there was a threatening letter sent to his father saying that his son should leave the country if he wanted to keep his life;
f)on 12 December 2012 six members from the AL came at night to his house, and though he was not there at the time they found him on the way home and beat him and kicked him until other villagers came to his assistance;
g)on 16 December 2012 the Applicant’s father received another threatening letter saying that his son must leave the country if he wanted to see the Applicant alive;
h)he left his home village to hide in a hostel in Dhaka until he could make arrangements to leave Bangladesh;
i)he fears that if he returned to Bangladesh he would be seriously harmed or killed by the members of the AL;
j)the authorities in Bangladesh would not be able to provide protection to him as they all have links to the AL and corruption is endemic in Bangladesh; and
k)the AL presently holds the balance of power in government and its members would be able to find him wherever he went in Bangladesh.
Relevant Criteria and Law Applicable to Protection Visa Applications
A convenient summary of the relevant grounds and criteria for the grant of a Protection visa can be found in the judgment of Charlesworth J in AWA15 v Minister for Immigration [2018] FCA 604 at [5] – [7] as follows:
[5] The Minister is to grant a visa if satisfied that the visa applicant satisfies the relevant criteria. If the Minister is not so satisfied, he must refuse to grant the visa: s 65(1) of the Act. For the appellant to qualify for the grant of a protection visa it was necessary for the Minister to be satisfied that (among other things) the appellant fulfilled either the criterion in s 36(2)(a) of the Act (Refugee Criterion) or the criterion in s 36(2)(aa) of the Act (Complementary Protection Criterion).
[6]The Refugee Criterion requires that the Minister be satisfied that the visa applicant is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention, as amended by the Refugees Protocol, namely a 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 as a result of such events, is unable or, owing to such fear, is unwilling to return to it.
[7]Relevantly, the Complementary Protection Criterion requires that the visa applicant be 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 non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; ....
Decision of Delegate
The Applicant attended an interview with the Delegate on 3 November 2014. In her Decision Record the Delegate recorded the Applicant’s claims to protection as made in his Declaration and the following additional, at times conflicting, claims made at the interview with her:
a)his wife has since married another man in Bangladesh;
b)in mid-2011 he was questioned by AL supporters in his home village about BNP posters he had been putting up, and they had hit the Applicant;
c)after this the Applicant spent very little time in his home village and withdrew from most of his political activities;
d)one of his brothers was involved in the student wing of the BNP and became quite politically active in the BNP and participated in a demonstration where “he subsequently came under duress as a result of his political activities”. The brother fled to Italy; and
e)he was threatened by BNP members because he had withdrawn from his previous political activities for the BNP and they came to his house and told him that if he did not continue those activities they would kill or beat him and not provide him with protection against supporters of the AL.
The Delegate found that overall the Applicant had been generally consistent in his claims to be a low level BNP supporter. However, the Delegate noted the inconsistency between, on the one hand, his claim at the interview with her that after he had been assaulted in the middle of 2011 by AL supporters he had withdrawn from most of his political activities and spent very little time in his village, with the claim on the other hand in his Declaration that from January 2012 he became increasingly politically active and that he had stepped up recruitment efforts for the BNP. The Delegate referred in her Decision Record to further inconsistencies between the Applicant’s claims and rejected the claims that he had been assaulted in 2011 and in 2012, that his father had received threatening letters and that he had been threatened by members of the BNP after he had withdrawn from political activities in Bangladesh.
In the result, the Delegate found that Australia did not have protection obligations to the Applicant under either the Refugees Convention criterion or the complementary protection criterion and refused to grant the Protection visa to him.
Tribunal Decision
The Applicant lodged an application for merits review of the Delegate’s decision with the Tribunal on 18 December 2014 through his solicitor and migration agent.
The Applicant and his solicitor appeared before the Tribunal on 21 April 2016 to give evidence and present arguments with the assistance of an interpreter in the Bengali and English languages. The solicitor had sent to the Tribunal a written submission dated 5 April 2016 (solicitor’s written submission) which included a further claim that the Applicant’s wife’s new husband is a member of the AL. The new husband had known his wife since childhood and the Applicant now believed that the claimed assault upon him in December 2012 was carried out because of the vindictiveness of the new husband, who was jealous that the Applicant’s wife had earlier married him.
At [3] of its Decision Record the Tribunal recorded that the Applicant had raised new claims that he would be harmed by the husband of his former wife and that he would be at risk from extortionists upon his return to Bangladesh.
From [19] – [31] of its Decision Record the Tribunal recorded the claims made by the Applicant in his entry interview conducted on 5 June 2013, his Declaration, at the interview with the Delegate and in the solicitor’s written submission.
At [32] – [43] of its Decision Record the Tribunal recorded the issues discussed with the Applicant and his solicitor at the hearing before the Tribunal. Then from [45] – [81] the Tribunal recorded its consideration of the credibility of the Applicant’s claims to protection under the five headings of:
a)claims that he was involved in the BNP and targeted by AL supporters;
b)claims the Applicant’s brother was involved in the BNP;
c)claims that the Applicant was threatened by BNP supporters;
d)claims that the Applicant is at risk of harm from his ex-wife’s new husband; and
e)claims that the Applicant would be at risk of extortion upon his return to Bangladesh.
From [82] – [92] of its Decision Record the Tribunal stated its conclusions on the credibility of the Applicant’s claims.
At [89] – [90] the Tribunal considered whether there was a real chance that the Applicant would face serious harm or significant harm if he were returned to Bangladesh because he would be identified as a failed asylum seeker, but was not so satisfied.
In the result the Tribunal substantially rejected the Applicant’s claims and foreshadowed that rejection at [49] in stating:
[49] Having carefully considered the applicant's evidence, I have formed the view that he has not told the truth about why he left Bangladesh and why he does not want to return there now. In summary, a central element of the applicant's claim, that he was actively involved in the BNP, was not credible. The applicant's evidence about his involvement in the BNP was vague and lacked detail: he was unable to correctly identify what the BNP flag looked like and when asked what the symbol of the BNP was could not do so. He could not remember when the last elections were held in Bangladesh or when the BNP was last in power and while he said the Awami League had been in power for many years he could not remember when they came to power. Overall, I found the oral evidence to the Tribunal lacked the same detail as his written claims and his evidence about core elements of his claims, such as the threatening letters he claims were sent to his father, has changed significantly over time. In the interview with the delegate and at the hearing the applicant introduced a new claim, that was not mentioned in his statutory declaration, which was that he was at risk of harm from the BNP. For the reasons that are discussed below. I did not find the applicant's claims to fear harm from [the] ex-wife's new husband to [be] credible and nor, on the evidence before me, do I accept that there is a real chance he will be subject to extortion upon his return to Bangladesh.
Accordingly, the Tribunal was not satisfied that the Applicant was a refugee for the purposes of the Refugees Convention criterion, or that he satisfied the complementary protection criterion, and affirmed the decision of the Delegate not to grant the Protection visa to the Applicant.
Grounds of Attack on Tribunal Decision in this Court
The Applicant relied upon the following verbatim Grounds:
1. The Administrative Appeals Tribunal officer erred in law to come to a decision dismissing my application not finding that the Department of Immigration and Border Protection did not consider that I was a victim of persecution for my political belief as an activist of Bangladesh National Party prior to my departure from Bangladesh.
2. The Honorable Administrative Appeals Tribunal officer did not find that there was lack of procedural fairness in the decision of the Department of Immigration and Border Protection to consider that I was physically abused for my political belief and my life was at risk which forced me to leave Bangladesh for safety of my life. I was not accepted by Tribunal as a credible witness ad refused my application.
3. The Administrative Appeals Tribunal Officer made error to find that the Department of Immigration and Border Protection failed to accept that the persecutions I experienced in Bangladesh and I shall be imprisoned and tortured if returned to Bangladesh. The Tribunal refused my claim on the ground that I am not a credible witness for my claims though I presented all relevant documents and evidences in support of my claims before the Tribunal prior to hearing.
4. The Administrative Appeals Tribunal officer erred in not finding that the DIBP erred in law amounting to jurisdictional error in finding that I do not have genuine fear of persecution for a convention reason and I do not meet the criteria set out in s 36(2) of Protection Visa.
5. The Administrative Appeals Tribunal officer erred in not finding that the DIBP refused my application on the ground that I would face punishment would be completely politically motivated.
At the hearing the Applicant was unfortunately unable to make meaningful submissions that the decision of the Tribunal suffered from jurisdictional error, but rather complained that the Tribunal had failed to believe what was happening in Bangladesh.
I further note that Grounds 1, 2, 3 and 5 seem to contend that the Tribunal erred by not correcting errors and findings of the Delegate in her Decision Record. However, that of course misconceives the role of the Tribunal which is that, under s.414 of the Migration Act 1958 (Cth) it “must” review the Delegate’s decision, and for that purpose stands in the shoes of the Delegate to consider afresh the application for the relevant protection visa so as to determine the correct or preferable decision on the material before it on a de novo basis. A proper hearing de novo by the Tribunal would cure any identified deficiencies or defects in the hearing or decision of the Delegate, assuming that they had occurred: see SGNB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 132 FCR 192 per Selway J.
Further, I have no jurisdiction to review the decision of the Delegate, but only that of the Tribunal, on the basis of established jurisdictional error. Accordingly, I will proceed by taking all five Grounds as asserting error against the decision of the Tribunal and not that of the Delegate.
Consideration
Ground 1
This Ground fails at a factual level, and also otherwise fails as seeking to invoke merits review which is not available in this Court.
The Tribunal in its Decision Record set out in detail the Applicant’s claim for protection based on his support for the BNP prior to his departure from Bangladesh and in the result concluded that he had not been a supporter of the BNP, finding at [82] that, on the basis of its previous reasoning which does not appear to me to lack an intelligible justification, as follows:
[82]For all the reasons that are set out above, I have reached the conclusion that the applicant's claims are not credible. I am not satisfied that he was ever actively involved in the BNP as claimed and, because I do not accept that he is now, or was ever a BNP supporter of any type, 1 do not accept that he was ever threatened and assaulted by supporters of the AL as claimed. I do not accept that the applicant ever participated in meetings of the BNP, rallies, protests, election campaigns, putting up BNP posters, taking down AL posters or any other public political activity. I do not accept that the applicant ever voted for or supported BNP candidates in elections in Bangladesh or encouraged others to do so. I do not accept that he was assaulted by AL supporters in 2011 or in 2012 or at any other time.
Ground 1 fails to establish that the decision of the Tribunal is affected by jurisdictional error.
Ground 2
This Ground invokes merits review and there is no evidence at all that the Applicant was not afforded procedural fairness by the Tribunal. He had been invited to a hearing and had attended, together with his solicitor and registered migration agent and there is no evidence that she ever complained to the Tribunal that the Applicant had not been afforded procedural fairness.
The Applicant had accepted by consent order 3 on 22 July 2016 that the responsibility for tendering a transcript of the hearing of the Tribunal lay upon him. No transcript was tendered by him at the hearing in this Court, let alone a transcript establishing that the Tribunal member treated him unfairly or in a procedurally irregular way.
Further, the fact that the Tribunal did not in large measure accept the Applicant as a “credible witness” does not establish jurisdictional error in itself. Of course, the Tribunal’s adverse findings on credibility are amenable to judicial review on jurisdictional error grounds: CQG15 v Minister for Immigration & Border Protection (2016) 253 FCR 496. Nevertheless, in this case I do not consider that the Tribunal’s findings suffer from illogicality or irrationality or legal unreasonableness. They appear to be legally reasonable and do not constitute a blanket, reflex or exaggerated adverse credit finding, but rather reflect a proper and meaningful examination of the Applicant’s claims: AZU15 v Minister for Immigration & Border Protection (2016) 240 FCR 143 at 145 [11].
Ground 2 fails to establish jurisdictional error.
Ground 3
Ground 3 invokes merits review of the Tribunal’s decision and merely argues with it, and the Ground fails to establish jurisdictional error.
Ground 4
This Ground argues with the decision of the Tribunal on a merits basis and fails to establish jurisdictional error.
Ground 5
This Ground also argues with the merits of the Tribunal’s decision and fails to establish jurisdictional error.
Conclusion
The Applicant has failed to establish that the decision of the Tribunal is affected by jurisdictional error and the Application filed in this Court is to be dismissed.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Associate:
Date: 25 March 2019
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