BTR16 v Minister for Immigration

[2018] FCCA 3286

FEDERAL CIRCUIT COURT OF AUSTRALIA

BTR16 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 3286

Catchwords:
MIGRATION – Application for judicial review – Protection (Class XA) visa – whether the Tribunal made an illogical or irrational decision – whether the Tribunal afforded the Applicant procedural fairness – no illogicality – no failure to provide procedural fairness – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476

Cases cited:

CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146

DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2

Applicant: BTR16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1493 of 2016

Judgment of: Judge McNab

Hearing date: 1 November 2018

Date of Last Submission: 1 November 2018

Delivered at: Melbourne

Delivered on: 14 November 2018

REPRESENTATION

Applicant in person

Solicitors for the Respondents: Sparke Helmore (Ms Ward)

ORDERS

1. The application filed 14 July 2016 be dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the sum of $5,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1493 of 2016

BTR16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. By an application filed on 14 July 2016 and amended on 12 October 2008, the Applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 18 June 2016. The Tribunal affirmed the decision of a delegate of the First Respondent not to grant the Applicant a protection visa.

Background

1. The Applicant is a citizen of Bangladesh who arrived in Australia as an irregular maritime arrival on 24 December 2012.

2. He applied for a Protection Visa on 5 April 2013.

3. In a statutory declaration dated 19 March 2013 the Applicant claimed to fear harm on the basis of the land dispute between himself and his neighbours.[1] He stated:

   6.There was dispute with our neighbours over land between our properties and they will tress pass on to our land. The land in question was in my name. The neighbours were determined to get the land from us.’[2]

   7.It escalated in around January/February 2007. We complained and told them to stop. They then tried to divide land with posts and wire and they have they had taken some of our land in the division. They set our land was theirs. This caused much aggravation in our family though my parents and brothers were not prepared to confront the neighbours.

   8.I was at the forefront of the dispute. I own the land. One day my brother and father will working in the store and I was home. They were causing problems and I decided to confront them. I said to them "enough is enough, get off my land". They screamed back and told me to get off their land. There was a massive argument and many people witnessed it. They said they would kill me.

   [1] Court Book 78 – 81.

   [2] Ibid 78[6].

4. He says in his declaration that the neighbours subsequently threatened him with his life and he fled the village and went to Malaysia where he stayed until 2012.[3]

   [3] Ibid 79.

5. On 6 January 2015, the delegate refused to grant the Applicant the protection visa and in doing so expressed concerns about the plausibility and consistency of the Applicant's claims and found them to be lacking in credibility.[4]

   [4] Ibid 112 -129.

6. The Applicant applied to the then Refugee Review Tribunal for review of the delegate's decision on 12 January 2015.[5]

   [5] Ibid 161.

7. On 18 April 2016 the Applicant attended a hearing before the Tribunal with the assistance of his representative and a Bengali interpreter. He had also filed through his representatives written submissions on 14 April 2016.[6]

   [6] Ibid 166.

8. The Tribunal decision at [51] – [54] records that in January 2016, The Applicant’s neighbour had called the police, resulting in his brother in Bangladesh being detained for about two weeks:

   The Tribunal asked what happened. The applicant said that they demanded the land be handed over to them, and if they did not make the applicant return from Australia, they would send the brother to gaol. At the time there was a violent argument between the brother and the others. The brother told them that the applicant was not in the country, and asked why they were .giving him trouble. The others said they would take the brother to gaol, to make the ' applicant return to give his signature. While the argument was going on, the person with whom the applicant had conflict called the police. The police arrived and took his brother to gaol. He was detained for 13 days.

9. The Applicant's representative provided further written submissions on 11, 16 and 25 May 2016.

Tribunal decision

1. By a decision dated 18 June 2016, the Tribunal affirmed the delegate's decision not to grant the Applicant the protection visa.

2. The Tribunal found the Applicant to be not a credible witness the Tribunal had particular difficulty accepting credibility of claims made in relation to the alleged land dispute with his neighbours.[7] The Tribunal also found that there were inconsistencies between the Applicant’s statutory declaration and evidence at the hearing.[8] The Tribunal recorded that it advised the Applicant of its concerns in relation to his evidence at [55] – [66] of its decision.

   [7] Ibid 205 [86].

   [8] Ibid [87].

3. The Tribunal also did not place any weight on a translated title deed which was tendered with submissions dated 25 May 2016.[9]

   [9] Ibid 203 [78].

Grounds of review

1. The Applicant's grounds of review, contained in an amended application filed on 12 October 2018, were as follows:

   The Second Respondent erred, amounting to jurisdictional error, by engaging in irrational, illogical and procedurally unfair reasoning.

   Particulars:

   The Applicant claimed to have been the victim of persecution by reason of being a member of a particular social group, namely a victim of land disputes in Bangladesh.

   In issue before the delegate was whether the Applicant owns the land in Bangladesh. The Applicant in fact owned land under his name and Bangladesh when he claimed to have been subjected to persecution. He further gave evidence to the fact that the land had has been given to the Applicant by his father (CB 122 [5]).

   The Second Respondent found that the Applicant's evidence that his father had become ill and decided to divide the land amongst all the family. The Second Respondent concluded this as the Applicant has not claimed or referred to this in his earlier statement (CB 200 [56])

Illogicality

1. The Applicant has not demonstrated that that the Tribunal's findings were illogical in the sense that they lack a logical or probative basis: CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146. I accept the submission of the First Respondent that the standard of a finding of illogicality is high and extreme illogicality is necessary to make out a jurisdictional error.[10]

   [10] DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2 [30].

2. The Tribunal set out its concerns in a detailed way, particularly in relation to the issue of the division of land by his father. The Applicant’s and his representatives’ attention was drawn to the inconsistencies in the evidence, and the Applicant and representatives were able to, and did, respond both at the hearing and in subsequent written submissions.

3. The Tribunal referred to the submissions[11] and considered the Applicant's claims as a whole. The findings of inconsistency were open to the Tribunal. I also accept the submission made on behalf of the First Respondent that the Tribunal's findings about inconsistencies about the land were not the only basis for the Tribunal's findings in relation to implausibility in the Applicant's evidence.

   [11] Ibid 202 [68].

4. Otherwise, I can see no basis for finding that the Tribunal failed to accord procedural fairness to the Applicant. The Applicant was represented at the hearing and had the opportunity to file three post hearing submissions, all of which were referred to by the Tribunal. The Tribunal put what it regarded as inconsistencies in the evidence to the Applicant at the hearing and he had the opportunity to respond through his representatives, which he did.

5. For these reasons there is no jurisdictional error apparent in the decision of the Tribunal or in the manner in which the Tribunal approached its task. Accordingly, the application filed 14 July 2016 will be dismissed.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge McNab

Associate: 

Date:  14 November 2018