BXI16 v Minister for Immigration

[2016] FCCA 3017

FEDERAL CIRCUIT COURT OF AUSTRALIA

BXI16 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 3017

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), ss.36, 425, 476

Cases cited:

Minister for Immigration v Jia Legeng (2001) 205 CLR 507

Minister for Immigration v SZMDS (2010) 240 CLR 611

Minister for Immigration v SZOCT [2010] FCAFC 159; (2010) 189 FCR 577

MZXDQ v Minister for Immigration [2006] FCA 1632

MZYXS v Minister for Immigration [2013] FCA 614

Re Minister for Immigration; ex parte Durairajasingham (2000) 168 ALR 407
SZNOE v Minister for Immigration [2012] FCA 96

WACO v Minister for Immigration (2003) 131 FCR 511

Applicant: BXI16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1922 of 2016

Judgment of: Judge Driver

Hearing date: 23 November 2016

Delivered at: Sydney

Delivered on: 23 November 2016

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms C Saunders of DLA Piper

ORDERS

1. The application is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1922 of 2016

BXI16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 22 June 2016.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.  Background facts relating to the applicant’s claims for protection and the decision of the Tribunal on them are set out in the Minister’s outline of legal submissions filed on 15 November 2016.   

2. The applicant is a male citizen of Bangladesh born on 10 June 1977.[1] The applicant arrived in Australia on 4 December 2012 as an unauthorised maritime arrival.[2]

   [1] Court Book (CB) 30

   [2] CB 1-17

3. The applicant applied for a protection (Class XA) visa on 12 April 2013.[3]  His claims were set out in a statement accompanying the application.[4]

   [3] CB 18-44

   [4] CB 68-71; note, an unsigned statement was also included with the application, however it was subsequently clarified by the applicant's representative that this document was a working draft and was not meant to be included in the documents submitted with the application (see CB 72, 91)

4. The applicant claimed to fear harm from the Awami League because he was a supporter of the Bangladesh Nationalist Party (BNP). 

5. The applicant claimed to have had longstanding problems with the Awami League in the past.  In particular, he claimed that his land was forcibly encroached by an Awami League supporter, Abdul Malik Mullah. As the Awami League was in power the police would not help the applicant and asked for a bribe to start the investigation. The Awami League continued to harass the applicant's family over the land dispute, and also threatened the applicant's life. A further land related incident occurred in 2009 when another member of the Awami League prevented the applicant from developing some commercial land he and his brother had bought in the local Bazaar. Relocation was not an option as the Awami League was in power nationally.

6. The applicant also claimed to fear harm because he was perceived as being well off in Bangladeshi society as he and some of his brothers lived abroad and earned more than the average Bangladeshi.

7. In his statement the applicant also clarified that his entry interview was incorrect insofar as it recorded he had problems with the BNP.

8. On 26 August 2014 the applicant attended an interview with the Minister’s Department.[5]  At the interview he also submitted an additional written statement,[6] dated 12 August 2014, which made further claims, including the following:

   a)the applicant's father and family played a vital role in winning support for the BNP during the 1991 election. The applicant was very young at the time but his father and the local BNP organisers gave him responsibility to work for the party during the election. As a result of this, most of the BNP workers and the Awami League supporters in the area knew him and his activities. When the Awami League won the 1996 election the Awami League leaders started to harass and torture both him and his family as the applicant was the person "in front" of the BNP;

   b)after the election, “the Goondas”, who were supported by the Awami League leaders, made it difficult for the applicant to run his welding business as they would threaten him and his workers to pay them thousands of rupees per week if they wanted to survive. In 1998, there was a big fight between the local BNP and Awami League workers.  The Awami League workers went to his shop accompanied by the “Goondas”, smashing all the machines and looting his property.

   [5] CB 82

   [6] CB 83-84

9. The application was refused by a delegate of the Minister (delegate) on 30 September 2014.[7]  The delegate found the applicant's claims overall were not credible.

   [7] CB 117-140

10. On 7 October 2014, the applicant applied to the Tribunal for review of the delegate's decision.[8]

    [8] CB 141-142

11. By letter dated 13 January 2016, the Tribunal invited the applicant to attend a hearing before it scheduled for 26 February 2016.[9]

    [9] CB 175-176

12. On 18 February 2016, the applicant submitted to the Tribunal the “response to hearing invitation” indicating he would attend the hearing[10]. The applicant also provided a statement addressing some of the findings made by the delegate, which also made the following new claims:[11]

    a)the applicant's brother had commenced successful proceedings in the Local Civil Court in relation to the land dispute;

    b)there was also a criminal case involving Mohammad Shamim Reza who had been threatening and harassing his family. The applicant did not mention this earlier, as he did not have any proof;

    c)recently an Awami League leader was murdered in his village and many BNP supporters were arrested. The applicant fears he will be killed if he returns to Bangladesh.

    [10] CB 177-180

    [11] CB 181-182

13. On 26 February 2016, the applicant attended a hearing before the Tribunal.[12]

    [12] CB 183-186

14. On 22 June 2016, the Tribunal handed down its decision, affirming the decision under review.[13]

    [13] CB 195-212

The decision of the Tribunal

1. The Tribunal had difficulty accepting the majority of the applicant's claims, and ultimately found that he had fabricated his material claims for the purpose of obtaining a protection visa.[14]

   [14] at [70]

2. In so finding, the Tribunal identified and considered deficiencies and inconsistencies in the applicant's evidence in detail from [22]-[69]. In particular, the Tribunal:

   a)found the applicant's evidence to be vague, evasive, incoherent in part, implausible, contradictory and unconvincing;[15]

   b)had concerns about the authenticity of the documents provided by the applicant in support of his claims, which it put to the applicant, and considered at [52]-[63].  The Tribunal observed that the court documents and the arrest warrant provided by the applicant were undated, missing words and mentioned defendants with no relevance to the applicant or his family.[16]  The letters were also inconsistent with the applicant's own evidence, included claims that were never raised by the applicant, and appeared to concern proceedings not in relation to the land dispute;[17]

   c)had concerns in relation to the credibility of the additional claims made by the applicant in his statement dated 12 August 2014.[18] The Tribunal did not accept the applicant's explanation as to why he failed to make these claims in his visa application, as it found it implausible that the applicant would have forgotten or was unable to recollect any of the events he claimed occurred from 1991 to 2012.[19]  The AAT was similarly not persuaded by the applicant's explanation as to why he did not mention that his brothers had been charged with the murder of the Awami League leader as referred to in newspaper articles he provided.[20]  The Tribunal was of the view that if his brothers had been charged with murder, evidence could have been obtained to support this claim; and

   d)the Tribunal also found many of these claims to be implausible and inconsistent with his earlier claims.[21]

   [15] see [20]

   [16] see [54]-[57]

   [17] see [58]-[62]

   [18] at [25]

   [19] see [25]

   [20] at [65]

   [21] see [29], [33], [36]-[39], [44], [51]

3. The Tribunal also considered country information and found that there was no suggestion that Bangladeshi workers who work abroad and travel back and forth to Bangladesh were being targeted on account of being perceived as wealthy.[22]

   [22] at [67]

4. Having rejected the applicant's substantive claims,[23] the Tribunal did not accept that the applicant faced a real chance of serious harm for any Convention ground.[24]

   [23] at [74]-[80]

   [24] at [82]-[83]

5. For the same reasons the Tribunal was further not satisfied that there were 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 that the applicant would suffer significant harm for any of the reasons claimed.[25]

   [25] at [84]-[87]

The present proceedings

1. These proceedings began with a show cause application filed on 21 July 2016.  There are 10 numbered paragraphs in that application:

   1.The AAT mistook and misconstrued the facts.  In making decision, the Administrative Appeal Tribunal failed to take account relevant considerations and took into account irrelevant considerations.  The AAT made decision on irrelevant facts and findings.

   2. Particulars: Applicant claims that his claims fall within the scope of the Refugee Convention for reasons of his membership of particular social group as a returnee from western country and his imputed political opinion.  The applicant said to the Tribunal that he was supporter of the BNP from the very beginning.

   3. In the first Interview the Department mistook the facts and concluded that he was not supporter of the BNP.

   4.The applicant claims that the Department mistook or misconstrued the facts.  At the Tribunal hearing the applicant raised the issue and claimed that the information about his membership was misunderstood by the Department ..

   5. As the applicant claimed in his protection Visa application that, in the beginning of 2010 he bought land.  His purchased land was encroached and occupied forcibly by the neighbour with the help of Awami League party workers and leaders of that area.  In the middle of the night they made small tin sheds and started to occupy them.

   6. His brother complained to the Police station but the police did not do because there was pressure from the Awami League Party supporters over the authority  They could not do anything. Applicant believes he has no genuine protection from the local authorities because in that area the police force are totally influenced by the police.

   The applicant believes that the Tribunal misconstrued the facts and did not understand that political environment and culture of Bangladesh.

   7. The applicant claims he was denied natural justice and procedural fairness when he was forced to continue hearing.

   The Tribunal mistook the facts.  Applicant's weakness to present evidence in sequence became a serious concern about the applicant's credibility.  The Tribunal came on conclusion that he has not told the truth in relation to crucial aspects of his claim. The whole hearing was conducted to destabilise the credibility of the evidence.

   Applicant claims that whatever he has submitted to the Tribunal in support of his claim was true and correct in his belief.  The Tribunal decision is unreasonable when it came on the conclusion that all the documents came from Bangladesh are fraudulent and bogus and it cannot accepted as authentic documents for the applicant's claims.

   8. The applicant claims that the AAT's finding of reasons are confused and test for persecution is not applied according to the rules of the Act and according to Complementary Protection Provisions under s.36(2)(aa) of the Act.

   9. Particulars :The applicant's fears of Persecution falls within the scope of Complementary Protection provisions for reasons of his membership of a particular social group as returnee from Western Country and his imputed political opinion. He left Bangladesh because of fear of foreseeable harm.  As stated earlier he could not live in Dhaka in 2012 or his village because of fear of harm from the person who occupied the land and threatened him to kill him.

   10. The applicant claims that the AAT unduly adopted harsh approach in assessing the fear of harm.  The AAT did not follow the Rules of real risk Test of Persecution and harm.  The AAT failed to account all the circumstances of fear and harms in which the applicant lived in Bangladesh.  The AAT failed to give real reasons for not applying Complementary Protection Criteria Under Paragraph 36 (2)(aa).

   (errors in original)

2. Paragraph 1 appears to raise a composite ground of review with particulars in paragraphs 2 to 6.  Paragraph 7 raises a ground of review with particulars included.  Paragraph 8 raises a third ground of review with particulars set out at paragraphs 9 and 10.  The application was supported by a short affidavit filed with it, which I received. 

3. I also have before me as evidence the court book filed on 28 September 2016. 

4. Only the Minister filed written submissions in accordance with procedural orders made by a registrar on 29 September 2016. 

5. I invited oral submissions from the applicant today.  In doing so, I explained to the applicant that I had some difficulty with the grounds in his application because it seemed to me that the first and third grounds struggled to rise above a dispute over the merits of the Tribunal decision, and the second ground referred to an apparent issue concerning the Tribunal hearing, which was not supported by any evidence.  The applicant told me that he had nothing to say. 

6. In submissions in reply, the applicant said that he considered that today’s hearing was unfair in that he had only filed his application to the Court on 29 September 2016.  He referred to the fact that some applicants wait a year or more for their hearings, whereas his hearing had come on relatively quickly.  I asked the applicant what he would have done with the additional time had he had it.  He said that he had nothing further to say. 

7. For reasons that I am not privy to, the registrar dispensed with a show cause hearing, pursuant to rule 44.12 of the Federal Circuit Court Rules 2001 (Cth), and listed the matter for a final hearing. Given the state of the application, it might have been more appropriate for the matter to be listed for a show cause hearing. In any event, the applicant has enjoyed a final hearing with a right of appeal to the Federal Court, should he be dissatisfied with this decision.

8. The applicant is unable to articulate a coherent case of jurisdictional error by the Tribunal.  In the absence of more coherent particulars and submissions, the grounds either make no sense or are simply a complaint about the Tribunal’s reasons.  The Minister’s submissions attempt to grapple with the grounds of review as raised.  I accept those submissions. 

Paragraphs 1 to 6 (Ground 1)

1. The first contention raised by the applicant, detailed in the grounds numbered 1 through 6, is that the Tribunal took irrelevant considerations into account, and ignored relevant material. Read with the particulars, the applicant raises several subsidiary issues, but predominantly appears to take issue with the Tribunal’s finding that he was not a supporter of the BNP.[26]

   [26] at [74]

2. I accept the Minister’s submission that the applicant's disagreement with the Tribunal’s finding that he and his family were not supporters of the BNP goes no higher than seeking impermissible merits review.

3. The Tribunal considered this aspect of the applicant's claims in detail at [26]-[33], and provided comprehensive reasons for rejecting it, finding the applicant's claims to be inconsistent or implausible.  Having regard to the Tribunal’s detailed and considered reasons, the Tribunal’s decision was open to it for the reasons it provided.

4. Insofar as the applicant contends that the Tribunal ignored relevant material, the Tribunal set out in detail the documents and claims advanced by the applicant[27]. The applicant has not identified any relevant material that the Tribunal ignored.  Absent such particulars this ground cannot be made out.  The applicant's contention that relevant material was ignored is again reflective of the applicant's disagreement with the Tribunal’s decision. Such disagreement simply seeks merits review.

   [27] at [10]-[17]

5. The particulars at paragraph 2 also appear to assert that the Tribunal should have found that the applicant's claims were Convention related for reason of his membership of a particular social group, namely as a returnee from a western country, and as a supporter of the BNP.  However, as the Tribunal rejected the applicant's material claims, it was irrelevant to the Tribunal’s decision whether the applicant's claims were Convention related or not.  The Tribunal was not required to consider the applicant's claims in relation to a particular social group (that arose either expressly or implicitly by reason of the material) given it had rejected the basis of the applicant's claims on credibility grounds to find he did not have a well-founded fear of persecution.[28]  In any event, there is no evidence on the material before this Court that the applicant expressly raised a particular social group claim. Furthermore, the Tribunal considered the substance of the claims advanced by the applicant in detail (although ultimately rejecting them). This included considering whether the applicant might be perceived as well off as a returnee from Australia.[29]

   [28] MZXDQ v Minister for Immigration [2006] FCA 1632; SZNOE v Minister for Immigration [2012] FCA 96 at [78]

   [29] see [80]

6. The particulars stated in paragraphs 3 and 4 also appear to take issue with the delegate's finding that the applicant was not a supporter of the BNP; however this Court has no jurisdiction to review the delegate's decision.[30]  Insofar as the applicant asserts the Tribunal misconstrued the applicant's evidence to the delegate, the Tribunal acknowledged at [10] that the applicant had corrected with the Department certain information stated in his entry interview.

   [30] See s.476(2) of the Migration Act 1958 (Cth) (Migration Act)

7. The particulars at paragraph 6 appear to assert two further contentions. First, that the Tribunal should have found that effective state protection was not available to the applicant because the Awami League exerted pressure on the police, and secondly, that the Tribunal misconstrued the facts and did not understand the political environment and culture of Bangladesh.  These contentions go no higher than to seek to cavil with the merits of the Tribunal’s decision. Having rejected the applicant's material claims to conclude he did not face a risk of harm, the Tribunal was not required to consider whether state protection was available.  The Tribunal also considered in detail the applicant's claims in relation to the land dispute, including noting that the applicant had approached the local police,[31] but ultimately rejected them.  Insofar as the applicant asserts the Tribunal misconstrued the political environment, it was open to the Tribunal to have regard to independent country information as it did.[32]  The applicant did not provide any country information to rebut that relied on by the Tribunal, as noted by the Tribunal.[33] 

   [31] at [34]-[51]

   [32] at [69]

   [33] at [68]

Paragraph seven (Ground 2)

1. Paragraph 7 alleges that the applicant was denied “natural justice and procedural fairness” as he was "forced" to continue the hearing. An allegation of bias and unreasonableness also appears to be raised. 

2. It is unclear what the applicant means when he states he was "forced" to continue the hearing. Absent further particulars and evidence, this ground fails to make out any jurisdictional error on the part of the Tribunal.

3. On the material before the Court there is nothing to suggest that the applicant sought an adjournment, or in any way lacked capacity to participate in the hearing before the Tribunal. Rather, the Tribunal’s decision records the applicant providing detailed and meaningful evidence before it such that the applicant was afforded a meaningful opportunity to present his claims as required by s.425 of the Migration Act.

4. An allegation of bias must also be firmly established, distinctly made, and clearly proved.[34]  Again, there is nothing on the face of the Tribunal’s written decision to suggest that it was affected by bias.  The applicant asserts that the hearing before the Tribunal was conducted to destabilise his credibility. However, the Tribunal’s specific task was to test the applicant's evidence and to come to findings on the applicant's credit.[35]  It was open to the Tribunal to explore the applicant's knowledge of the policies and principles of the BNP.[36]

   [34] Minister for Immigration v Jia Legeng (2001) 205 CLR 507

   [35] Re Minister for Immigration; ex parte Durairajasingham (2000) 168 ALR 407, 423 [67] (McHugh J)

   [36] Minister for Immigration v SZOCT [2010] FCAFC 159; (2010) 189 FCR 577 at [7]

5. Insofar as the applicant asserts it was unreasonable for the Tribunal to conclude that the documents provided were fraudulent, the Tribunal considered in detail from [52]-[63] the evidence pertaining to each of the documents found to be fraudulent, and provided cogent reasons for its subsequent findings. If reasonable minds might differ on certain findings, a decision cannot be set aside for jurisdictional error as illogical, irrational or unreasonable merely because one conclusion has been preferred to another.[37]  For completeness I note that the applicant was invited to comment on the authenticity of the documents.[38]  

   [37] Minister for Immigration v SZMDS (2010) 240 CLR 611, 648 [131]

   [38] WACO v Minister for Immigration (2003) 131 FCR 511 at [54] per Lee, Hill and Carr JJ

Paragraphs 8 to 10 (Ground 3)

1. Paragraph 8 alleges that the Tribunal did not apply the relevant test for persecution according to the Migration Act, and did not apply the relevant criteria when assessing complementary protection under s.36(2)(aa).

2. Having regard to the Tribunal’s detailed and cogent reasons, this ground again seeks impermissible merits review.

3. Insofar as the applicant takes issue with the Tribunal’s application of the complementary protection criterion, the Tribunal set out the relevant law at [8], and considered the applicant's claims in light of this criterion at [84]-[87].  It was open to the Tribunal to rely on its findings of fact under the Refugee Criterion to conclude that the applicant did not satisfy the complementary protection criterion in circumstances where the same essential claims were raised.[39]

   [39] MZYXS v Minister for Immigration [2013] FCA 614 at [31] per Marshall J

4. I conclude that the applicant has failed to demonstrate that the decision of the tribunal is affected by any jurisdictional error.  The decision is therefore a privative clause decision, and the application must be dismissed.  I will so order. 

5. In consequence of the dismissal of the application, the Minister seeks an order for costs in the sum of $4,800.  I discussed with the Minister’s solicitor the Court’s scale and the circumstances of this matter which, in my view, should probably have been listed for a show cause hearing.  The applicant told me that he has little money and might need time to pay.  I explained to him that the order will not compel payment of the costs in any particular time.

6. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,800.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date: 24 November 2016