BQZ16 v Minister for Immigration and Border Protection
[2018] FCA 261
•6 March 2018
FEDERAL COURT OF AUSTRALIA
BQZ16 v Minister for Immigration and Border Protection [2018] FCA 261
Appeal from: BQZ16 v Minister for Immigration and Border Protection & Anor [2017] FCCA 2160 File number: NSD 1659 of 2017 Judge: COLVIN J Date of judgment: 6 March 2018 Legislation: Migration Act 1958 (Cth) ss 36(2), 45AA, 425 Date of hearing: 6 March 2018 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: No Catchwords Number of paragraphs: 15 Counsel for the Appellant: The appellant appeared in person Counsel for the First Respondent: Ms M Donald Solicitor for the First Respondent: Sparke Helmore Counsel for the Second Respondent: The second respondent filed a submitting notice, save as to costs ORDERS
NSD 1659 of 2017 BETWEEN: BQZ16
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
COLVIN J
DATE OF ORDER:
6 MARCH 2018
THE COURT ORDERS THAT:
1.The appeal is dismissed
2.The appellant do pay the first respondent’s costs of the appeal to be assessed if not agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
COLVIN J:
The appellant is a citizen of Bangladesh and he arrived in Australia by boat without entry papers and then applied for a protection visa. The application was based on his claim that he feared harm from a group called Sarbahara, which appears to be a faction of the Purba Banglar communist party. He said that while he was running his business in Bangladesh he was approached by people from the group and asked to give forced donations, which he paid, and the amount of the demands increased after five to six months. He said that when he could not pay, the group threatened to kill him and this led him to close his business and leave Bangladesh to escape harm.
The application for a protection visa was refused by a delegate of the Minister. It appears that since 16 December 2014, his application has proceeded under s 45AA of the Migration Act 1958 (Cth) as an application for a temporary protection visa.
The appellant sought review of the delegate’s decision in the Administrative Appeals Tribunal. The Tribunal affirmed the decision under review.
The appellant sought judicial review of the Tribunal’s decision in the Federal Circuit Court. He raised four grounds. First, the Tribunal should have found the appellant to be a victim of persecution from the Sabahara group. Second, the Tribunal failed to consider whether the appellant was physically abused which denied the appellant procedural fairness and did not accept the appellant to be credible. Third, the Tribunal failed to consider that the appellant will be tortured if he is returned to Bangladesh. Fourth, the Tribunal erred in its finding that the appellant does not have a genuine fear of persecution for a convention reason and that he does not meet the criteria set out in s 36(2) of the Act.
Each claim was considered by the Court below and dismissed.
The appellant now appeals to this Court. He speaks Bengali and has been assisted in these proceedings by an interpreter who speaks Bengali and English.
There are five matters stated in his grounds of appeal and his appeal is supported by a written outline of submissions in English. He said today that the submission had matters that had been translated for him. It has general assertions that he was denied procedural fairness and natural justice, but gives no details to support those claims. It claims that the Tribunal raised irrelevant questions to discredit the evidence of the appellant, but this is not a matter that could give rise to an appeal ground. It also claims that the Tribunal was biased, but again gives no details to support those claims. I have considered the grounds that are raised and the matters raised today and have decided that this appeal must be dismissed.
Ground 1 is that the Court below should have found that the Tribunal failed to apply the correct test in relation to complementary protection. This is a reference to s 36(2)(aa) of the Migration Act 1958 (Cth). This ground was not advanced in the Federal Circuit Court. The considered separately the application of s 36(2)(aa) Tribunal and correctly applied the provision.
Ground 2 is that the Tribunal made factual errors in its findings about the claim made by the appellant. A similar claim was made before the Federal Circuit Court It found, correctly, that claims of that kind do not disclose jurisdictional error of a kind that would allow review by the Court.
Ground 3 is that the Federal Court failed to hold that the Tribunal exceeded its jurisdiction or constructively failed to exercise its jurisdiction when it asked irrelevant questions. It appears this is a complaint about questions being asked that were designed to test credit of the appellant. This is a course that was within the authority of the Tribunal and did not disclose jurisdictional error.
Ground 4 is that the Federal Circuit Court should have found that the Tribunal made inconsistent assertions about credibility. No claim in these terms was made before the Court below and it does not disclose jurisdictional error.
Ground 5 is that the Tribunal formed a preoccupied view or opinion about the appellant’s documents and that there was a denial of natural justice and procedural fairness. As I have noted, there’s no detail to support these applications. It was not a ground before the Court below, and in the absence of any material to support it, it must fail.
In oral submissions today, the appellant has raised a claim that the people who are looking for him have hurt his aunty four months ago and she is in hospital. He asked for an adjournment to allow evidence of these matters to be brought before the Court. I did not allow that application because, in my view, that evidence would not be relevant to my decision today.
My decision concerns whether there was error in the Federal Circuit Court decision, which, in turn, concerns whether there was jurisdictional error by the Tribunal. The evidence is not a matter, if shown, that would be likely to bear upon any of the conclusions reached by the Tribunal, which were to the effect that it did not believe that the appellant was a member of the group called Sarbahara.
The appellant also raised issues in his written submissions concerning his mental state at the time of the hearing in the Tribunal. This is not an issue that was before the Federal Circuit Court and it is not a matter that is supported by any of the evidence before me. In those circumstances, there is no issue raised of breach of the obligation under s 425 of the Migration Act to provide a real and meaningful hearing. So for those reasons, I dismiss the appeal with costs.
I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Colvin. Associate:
Dated: 8 March 2018
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