BSO16 v Minister for Immigration

[2016] FCCA 2848

FEDERAL CIRCUIT COURT OF AUSTRALIA

BSO16 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2848

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migrants & Refugees Division) – Protection (Class XA) visa – whether the Tribunal acted without or in excess of its jurisdiction – whether the Tribunal failed to take into account relevant considerations – whether the Tribunal failed to apply the real risk test – whether the Tribunal failed to consider the applicant’s complementary protection claims – no jurisdictional error identified – amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 476.

Federal Circuit Court Rules 2001, r.44.12.

Cases cited:

Spencer v Commonwealth of Australia (2010) 241 CLR 118

Applicant: BSO16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1777 of 2016

Judgment of: Judge Street

Hearing date: 4 November 2016

Date of Last Submission: 4 November 2016

Delivered at: Sydney

Delivered on: 4 November 2016

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondent:

Mr A Day

DLA Piper

ORDERS

1. The amended application is dismissed under r.44.12 of the Federal Circuit Court Rules 2001.

2. The Applicant pay the costs of the First Respondent fixed in the amount of $3,606.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1777 of 2016

BSO16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 21 June 2016 affirming a decision of the delegate not to grant the applicant a protection visa. The applicant was found to be a citizen of Bangladesh and his claims were assessed against that country. The applicant arrived on the mainland on 4 December 2012 as an illegal maritime arrival.

The Delegate’s Decision

1. The applicant claimed to fear harm from groups of the Awami League in his village. The applicant alleged particular incidents had taken place that gave rise to his departure. The delegate found the applicant had fabricated his claims in relation to harm from the Awami League gangs to strengthen his protection visa application. The delegate was unable to accept that the applicant had been truthful about his circumstances in relation to the incidents he alleged occurred. The delegate found the applicant was not targeted by anyone in his country in the past, nor that he would be in the foreseeable future for the reasons claimed by the applicant.

2. The delegate was not satisfied the applicant has a real chance of being persecuted for a Refugee’s Convention reason and was not satisfied the applicant’s fear of harm is well-founded. The delegate was not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Bangladesh, there was a real risk the applicant will be subjected to significant harm. The delegate found that Australia had no protection obligations to the applicant and that the applicant failed to meet the criteria under s.36(2) of the Act.

The Tribunal’s Decision

1. The decision of the delegate made on 22 August 2014 was the subject of an application for review lodged on 28 August 2014. By letter dated 6 October 2015, the Tribunal invited the applicant to appear at a hearing on 2 December 2015. The applicant appeared on that date to give evidence and present arguments and was assisted by his migration representative who was also present. Prior to the hearing on 30 November 2015 the applicant’s migration representative provided submissions to the Tribunal which were referred to in the Tribunal’s reasons.

2. The Tribunal correctly identified the relevant law. The Tribunal summarised the applicant’s claims and evidence. The Tribunal gave detailed reasons for the adverse credibility findings in relation to the applicant. The Tribunal found that the applicant was not a witness of truth and that the applicant had fabricated his material claims for the purpose of obtaining a protection visa. Those adverse findings were open on the material before the Tribunal and cannot be said to lack an evident and intelligible justification.

3. The Tribunal was not satisfied there was a real chance the applicant would suffer serious harm for any of the reasons claimed by the applicant if he returns to Bangladesh now or in the reasonably foreseeable future. The Tribunal, having considered the applicant’s claims individually and cumulatively, held that there is no real chance that the applicant will suffer persecution on grounds of his actual or imputed political opinion, membership of a particular social group or other Refugee Convention reason if he returns to Bangladesh now or in the reasonably foreseeable future.

4. The Tribunal found the applicant does not have a well-founded fear of persecution for a Refugees Convention reason. The Tribunal found that the applicant did not satisfy the criteria under s.36(2)(a) of the Act. The Tribunal was not satisfied there were 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 the applicant will suffer significant harm as defined in s.36(2A) of the Act.

5. The Tribunal found that the applicant did not satisfy the criteria in s.36(2)(aa) of the Act. The Tribunal found that the applicant did not meet the criteria under s.36(2) of the Act and affirmed the decision of the delegate.

Proceedings before this Court

1. At the commencement of the hearing, the Court explained to the applicant that the matter had been listed for a show cause hearing under r.44.12 of the Federal Circuit Court Rules 2001. The Court explained to the applicant that the show cause hearing was a hearing to determine whether the applicant had a reasonably arguable case that the Tribunal’s decision was affected by legal error.

2. The Court explained that the relevant legal error had to be either an excess of statutory power or a denial of procedural fairness to the applicant. The Court explained that, in summary, this meant the Court was considering whether the applicant had a reasonable argument that the Tribunal’s decision was unlawful or a reasonable argument that the Tribunal’s decision was unfair. The Court explained to the applicant that if the Court was satisfied that the applicant had a reasonable argument that the Tribunal’s decision was affected by relevant legal error, the proceedings would be fixed for hearing on another day. The Court explained to the applicant that if not satisfied that the decision of the Tribunal was the subject of a reasonable argument that it was affected by relevant legal error the application would be dismissed.

3. The Court explained to the applicant that it would have identified the evidence, then hear submissions from the applicant, then hear submissions from the solicitor for the first respondent, and then hear submissions from the applicant in reply. The applicant confirmed that he understood the nature of the hearing as explained by the Court.

4. On 8 September 2016 a Registrar of the Court made orders providing the applicant with an opportunity to file an amended application, affidavit evidence, and submissions. The applicant did, in fact, file an affidavit, an amended application, and submissions. At the commencement of the hearing the applicant indicated that he wished to seek an adjournment in order to put on the transcript of the hearing before the Tribunal. The Court asked why, given the proceedings were commenced on 11 July 2016, this had not been earlier done by the applicant.

5. The applicant indicated that he had spoken to someone very recently, and as a result of that the applicant now wanted to obtain the transcript. The applicant suggested that he did not understand the requirement to put on evidence. The Court raised with the applicant that his conduct in response to the orders of 8 September 2016 in putting on an amended application, affidavit evidence, and submissions conveyed that the applicant did understand the opportunity that he had to put on material. The applicant confirmed that he had earlier received the CDs in relation to the Tribunal hearing and that he had not listened to them.

6. The adjournment application was opposed by the first respondent. I am not satisfied that an adjournment would be of any utility. The applicant did not satisfactorily explain why he had not earlier taken steps to obtain the transcript if he was desirous of doing so. I am not satisfied that an adjournment is warranted in the interests of the administration of justice. Further, on the material before the Court, an adjournment is likely to add to the costs of the parties and utilise limited Court time, and the Court is not persuaded that an adjournment would be of any real utility.

7. From the bar table the applicant maintained that he had told the truth to the Tribunal and that it was unsafe for him to return to Bangladesh. The applicant maintained that his story was true and that the Tribunal had failed to understand his story and that the decision was unfair. There is nothing on the face of the Tribunal’s reasons to reflect any failure by the Tribunal to understand the applicant’s claims and evidence. On the material before the Court, the Tribunal complied with its statutory obligations in the conduct of the review.

8. On the material before the Court, I am not satisfied that there was any denial of procedural fairness by the Tribunal in the conduct of the review. The substance of the submissions by the applicant from the bar table were to invite this Court to engage in an impermissible merits review. This Court does not have power to make fresh findings of fact in relation to the applicant’s claims. Nothing said by the applicant from the bar table identified any arguable jurisdictional error.

9. The grounds of the application are as follows:-

   1. In making decision, the Administrative Appeals Tribunal acted without jurisdiction or in excess of jurisdiction when it failed to take into account relevant considerations.

   2. The tribunal failed to assess my harm on the basis of my claims.

   3. The tribunal failed to assess the present situation in Bangladesh since I left.

   4. The tribunal decision effected by the natural justice.

   5. The tribunal made decision without any verification of my genuine documentary evidence and statement.

   6. The Tribunal decision is identical or similar of the Departmental decision.

   Particulars:

   AAT unreasonably raised doubt over my claims for political opinion and an atheist. The Department and the Tribunal misunderstood or misconstrued the facts which was effect the decision.

   And for the safety of my life I forced to leave Bangladesh by boat. When it became worse, I decided to leave Bangladesh.

   I argue that the Department and the Tribunal asked many irrelevant questions to test the credibility of my evidence.

   The Department and the Tribunal found inconsistency because the questions were asked in such a manner for which I was not prepared. Sometimes I was nervous and confused at the time of interview with the Department & the tribunal. I did understand interpreter properly.

   For the protection of my life and I became serious target by the Police, Awami League gang and there activist.

   My brother was kidnap and still today my family did not found my brother.

   The Department has accepted that I was very confused. I, myself was not understanding what answer I was giving for what question. I will provide more details in my Amended Application.

   I believe I was denied procedural fairness when the hearing was conducted not freely and fairly.

   (Errors in original)

10. In relation to ground 1 of the application filed on 8 September 2016, the particulars allege that the Tribunal unreasonably cast doubt over the applicant’s claims to be persecuted for his political opinion and being an atheist.

11. There was no claim advanced by the applicant before the Tribunal in relation to the applicant being an atheist. There was no express claim by the applicant in relation to him having political opinions. The Tribunal did consider whether the applicant was the subject of a real chance that he would suffer persecution because of an imputed political opinion and made an adverse finding that was open to the Tribunal on that material. The Tribunal is not required to determine claims that are not advanced or do not fairly arise on the material before the Tribunal. There is no arguable case that the Tribunal failed to take into account a relevant consideration as raised by ground 1 of the application.

12. In relation to ground 2, it is apparent that the Tribunal correctly applied the relevant law in relation to the applicant’s claims and evidence. Ground 2 fails to identify any arguable jurisdictional error.

13. In relation to ground 3, it is apparent that the Tribunal referred to country information. The determination of what country information to accept was a matter for the Tribunal. Ground 3 fails to identify any arguable jurisdictional error.

14. In relation to ground 4, for the reasons I have already given there is no apparent denial of procedural fairness in the conduct of the review by the Tribunal. Ground 4 fails to disclose any arguable jurisdictional error.

15. In relation to ground 5, it was for the applicant to establish the applicant’s claims, and there was not an obligation on the Tribunal to purport to verify or engage in trying to verify the applicant’s claims beyond the evidence and arguments submitted before the Tribunal. There was no obvious face readily ascertainable by the Tribunal. No arguable jurisdictional error is disclosed by ground 5 of the application.

16. Ground 6 is an assertion of the Tribunal’s decision being identical to that of the Department’s, which is without foundation. The Tribunal’s decision reflects an orthodox approach to the applicant’s claims and evidence. Ground 6 fails to identify any arguable jurisdictional error. To the extent that the particulars to the grounds assert a misunderstanding or misconstruction by the Tribunal of the applicant’s claims and evidence, a fair reading of the Tribunal’s reasons does not support any misunderstanding or misconstruction by the Tribunal.

17. To the extent that the particulars complain about the applicant being asked questions that the applicant believed to be irrelevant, it was a matter for the Tribunal to test the applicant’s credit and doing so gives rise to no arguable jurisdictional error by the Tribunal. To the extent that the particulars suggest that the applicant was nervous and confused at the time of the interview or did not understand the interpreter, there is no material before the Court to support that proposition. The Tribunal’s comprehensive adverse credibility findings were open on the material before the Tribunal, and the reasoning in relation to inconsistency and implausibility was reasonable and logical.

18. The assertion that the review was not conducted freely and fairly is without substance for the reasons already given. The applicant was provided with an opportunity to give evidence and present arguments and was also assisted at the hearing by a migration agent. Nothing in the particulars to the application filed on 11 July 2016 identify any arguable jurisdictional error.

19. In relation to the amended application filed on 22 September 2016, it identifies the following grounds:-

    1. In making decision, the Administrative Appeals Tribunal acted without jurisdiction or in excess of jurisdiction when it failed to take into account relevant considerations.

    Particulars:

    AAT unreasonably raised doubt about my life is in danger. The Department and the Tribunal misunderstood or misconstrued the facts.

    My claims that I was persecuted and leave my country to safe my life. Present authority supporter gang killed my brother. Till today my family did not find my brother. If I returned my country of origin my fate will be same as my brother. I am the target of gang. The reports are in the Amnesty International Organization that in Bangladesh huge number of people killed by gang, the police did not take any action against the gang.

    I decided to leave Bangladesh by boat full of my life risk. The honourable tribunal did take the consideration to safe my life I force to live my country of origin.

    I argue that the Department and the Tribunal asked many irrelevant questions to test the credibility of my evidences to support my claims.

    The Department and the Tribunal found inconsistency because the questions were asked in such a manner for which I was not prepared. I was sick, nervous and confused at the time of interview because of my tortures by the gang.

    The Tribunal raised the question about telling these things now, and raised the question why I did not mention earlier in the Statutory Declaration with the Original Application. I am collecting my oral evidence CD and will provide transcript some time later.

    For the protection of my life I leave Bangladesh to Australia full life risk by the boat.

    The tribunal member did not believe that and AAT raise question of credibility.

    The Department has accepted that I was very confused. I, myself was not understanding what answer I was giving for what question. The Department told the applicant first understand then give answer. I am not a qualified person to professional interrogation and I was totally nervous. I also mention to the tribunal my mental health conditions.

    I believe I was denied procedural fairness when the hearing was conducted not freely and fairly.

    2. I claim that the AAT made a jurisdictional error when it made decision in which the finding of reasons is confused. I argue that the Tribunal did not apply Real Risk Chance Test used in the Refugee Convention under Australian law. Only depend on the DFAT reports.

    Particulars:

    I claim that the Tribunal and the Department formed the opinion based on the limited information about the possible harm to me. The Tribunal ignored all other independent information about the attacks on me and my family by the gang. AAT made unreasonable doubt about my claims and evidences related with my claims.

    The Department and the Tribunal made opinion with the closed mind. I claim that I left Bangladesh because of attack and torture by the gang. I have no protection from the local authorities because my attempts to get help failed and also the monopoly of the gang and administrative authorities in Bangladesh.

    The AAT did not account any evidence of real chance of risk despite the facts of my situation in Bangladesh.

    3. The Tribunal made a jurisdiction error when it did not consider my claims under the Complementary Protection Clauses.

    Particulars:

    I claim I would satisfy the criterion for protection under the Complementary protection arrangements as there are substantial grounds to believe there is a real risk that would suffer significant harm on return to Bangladesh. I claim that the Tribunal blindly follow the decision of the Delegate.

    The Tribunal did not consider that how I came to Australia by boat taking high risk of life. The AAT ignored intentionally the relevant consideration related with complementary protection set out in s 36(2) (a). I am subjected to a significant harm as consequences of being tried for kill with possibility that sever sentence would be carried out on me.

    I refer some issues of AAT decision dated 21 June 2016 as follows:

    Paragraphs 16, 19,21,22,23,26,27,30,32,34,35,38,40,42 and 51.

    The AAT ignored real test of persecution and made decision with closed mind.

    (Errors and emphasis in original).

20. The applicant indicated that he wished to rely upon both applications before the Court. Ground 1 of the amended application is, in substance, a repetition of the earlier ground 1. There is no relevant consideration identified that the Tribunal failed to take into account. The particulars to ground 1 do not identify any arguable jurisdictional error in relation to ground 1. Ground 1 fails to make out any arguable jurisdictional error. To the extent that the particulars refer to the adverse findings by the Tribunal in relation to the applicant’s credibility, for the reasons I have already given those findings were open.

1. In relation to ground 2, the Tribunal’s reasons, on a fair reading, are rational and logical and do not reflect any confusion in relation to the applicant’s claims and evidence. Further, on the material before the Court, the Tribunal correctly identified the relevant law and applied the correct test in relation to the Refugees Convention. It was a matter for the Tribunal what country information it accepted. Further, it is apparent that the applicant had a real opportunity to present submissions and, in fact, did so prior to and at the hearing. On the material before the Court I am satisfied the applicant had a real and meaningful hearing before the Tribunal. Ground 2 fails to identify any arguable jurisdictional error.

2. In relation to ground 3 it is apparent that the Tribunal did assess the applicant’s claims in relation to complementary protection and correctly identified the relevant law in that regard. Ground 3 fails to make out any arguable jurisdictional error.

3. The applicant also provided written submissions in which the applicant sought to expand upon the arguments of alleged error by the Tribunal. I accept the first respondent’s submission that paras.1, 3, 6, and 10-14 are, in substance, an invitation to this Court to engage in impermissible merits review and do not identify any arguable case of jurisdictional error. Paragraph 2 is, in substance, an impermissible challenge to the merits of the matter and seeks to cavil with the adverse findings in respect of credibility. Paragraph 2 fails to identify any arguable jurisdictional error.

4. In relation to para.4, it is apparent that the Tribunal did take into account the applicant’s claims in relation to his brother but made adverse findings that were open to it. There is no evidence that the applicant attended numerous political meetings. Paragraph 4 fails to identify any arguable jurisdictional error.

5. Paragraph 5 asserts irrelevant questions were asked by the Tribunal. There is no foundation for this assertion and no material alleged irrelevant questioning was identified. Paragraph 5 fails to identify any arguable jurisdictional error. There is a reference in the submissions to the applicant unfortunately not having a transcript and a request by the applicant to hear the CD. No step was taken by the applicant to seek to tender the CD before the Court, and the applicant had not obtained a transcript of the Tribunal hearing. The applicant had the CDs for some time and had a proper and fair opportunity to put on evidence.

6. In relation to para.7, there was no erroneous approach by the Tribunal to the determination of the applicant’s fear of persecution. Paragraph 7 is, in substance, an impermissible challenge to the adverse findings made by the Tribunal.

7. In para.8, the assertion that the information obtained by the delegate is biased and limited does not identify any arguable jurisdictional error by the Tribunal. To the extent that the allegation was intended to be advanced against the Tribunal, there is no basis for the assertion that the Tribunal was biased in the obtaining of information or in some way limited the information available. The applicant had an opportunity to provide submissions both at the hearing and beforehand, and the applicant’s migration agent did present submissions in relation to the applicant’s claims, which the Tribunal took into account. Paragraph 8 fails to identify any arguable jurisdictional error.

8. In relation to para.9, the Tribunal correctly identified the relevant law, and there is no substance in the assertion that it failed to apply the correct test in respect of complementary protection. Paragraph 9 fails to identify any arguable jurisdictional error.

9. In relation to para.15, the assertion that the applicant was sick and sought an adjournment in the course of the hearing is not supported by any evidence before the Court and is not consistent with the summary of the hearing by the Tribunal. Further, the applicant had a migration agent present at the hearing. The hearing record does not identify any request for an opportunity to put on further information by the applicant or the applicant’s agent at the end of the hearing. No arguable jurisdictional error is identified by para.15 of the applicant’s submissions.

10. I take into account the principles and caution in Spencer v Commonwealth of Australia (2010) 241 CLR 118 at [24]-[25] and [59]-[60]. I am satisfied that neither the application nor the amended application identify an arguable case of jurisdictional error. I am satisfied that this is in appropriate matter in which to exercise the Court’s powers under r.44.12 of the Federal Circuit Court Rules 2001.

11. The amended application is dismissed under r.44.12 of the Federal Circuit Court Rules 2001.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 29 November 2016