BXV16 v Minister for Immigration

[2017] FCCA 172

FEDERAL CIRCUIT COURT OF AUSTRALIA

BXV16 & ORS v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 172

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Protection (Class XA) visa – whether the Tribunal erred in law – findings made on the applicant’s credibility – no jurisdictional error identified – application dismissed.

PRACTICE AND PROCEDURE – Oral application for adjournment – whether an adjournment was in the interests of the administration of justice – application refused.

Legislation:

Migration Act 1958 (Cth), ss.36, 476, 499

First Applicant: BXV16

Second Applicant: BXW16

Third Applicant: BXX16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1940 of 2016

Judgment of: Judge Street

Hearing date: 2 February 2017

Date of Last Submission: 2 February 2017

Delivered at: Sydney

Delivered on: 2 February 2017

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents: Ms Lucchese
Sparke Helmore Lawyers

ORDERS

1. The application is dismissed.

2. The First and Second Applicants to pay the costs of the First Respondent fixed in the amount of $5,800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1940 of 2016

BXV16

First Applicant

BXW16

Second Applicant

BXX16

Third 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 28 June 2016 affirming the decision of the delegate not to grant the applicants protection visas.

2. The first applicant is the husband of the second applicant and father of the third applicant. The second and third applicants are members of the family unit in relation to the application for protection. A separate application for protection was made by the second and third applicants.

3. The applicants were found to be citizens of Bangladesh. On 31 October 2013 the applicant was granted a subclass 600 visa. The first applicant arrived in Australia on 29 March 2014 and then applied for protection on 22 April 2014. The first applicant claimed that he had been an active member of the Jamaat-e-Islami (JEI) Party in Bangladesh since 1983 and that he was involved in recruiting members for the party and promoting the party and assisting with elections.

4. The first applicant alleges that he ran two successful businesses. The first applicant  alleges that he was targeted for his political opinions as a supporter of the JEI by his business partners who were supporters of the rival Awami League Party. The first applicant alleges that this was particularly the case when the Awami League came to power in 2009. The applicant claims to fear harm from the Awami League government for his support of the JEI. The first applicant also alleges that his business partners are unable to work with the first applicant for reasons of his support for the JEI Party.

The Delegate’s Decision

Whether the applicants’ fears were well-founded

1. The first applicant alleges that he was threatened with death and that he was threatened that his wife and son would be kidnapped or murdered. The delegate accepted that the first applicant faced adverse business dealings and may have lost equity and in at least one of his businesses. The delegate found that the first applicant and his family had the opportunity to depart Bangladesh for Australia as much as six months before their actual departure, and noted that they did not in fact depart, despite the first applicant’s claim that his family faced threats of kidnapping and murder at the time.

2. The delegate asked the first applicant whether he had any documentary evidence to support his claim that he had held his position within the JEI for approximately 30 years. The first applicant responded saying he had no evidence. The delegate raised with the first applicant that it was unlikely that someone who had held an active position in the JEI Party for such a long period would be unable to substantiate this claim with evidence. The first applicant responded saying it was not possible to obtain such evidence.

3. The delegate said that whilst it may be difficult to obtain the evidence, the applicant’s inability to provide any substantiating evidence to support his claim that he held a notable position in the JEI for approximately 30 years led the delegate to conclude that the claim was untruthful. The delegate found the first applicant’s testimony to be vague and unconvincing.

4. The delegate observed that it was unlikely that a person who had genuinely been involved actively in supporting the JEI would be unable to name specific dates when major political opposition parties came to power. The delegate was not satisfied that the first applicant holds or held a position of notable significance in the JEI as claimed. The delegate did not accept that the first applicant’s profile as such, as a supporter of the JEI, was one where he would be of adverse interest to opposition party supporters outside of his home region.

5. The delegate found that overall the first applicant’s oral testimony was vague and lacked specific detail with regard to his core claims. Whilst the delegate accepted that there had been adverse business dealings, the delegate was not satisfied that this was for reasons relating to any Convention ground. The delegate observed that the first applicant’s claims reflected a person who hopes to reside in Australia to further his business interests after adverse business dealings in Bangladesh.

The delay in departing Bangladesh

1. The delegate turned to the significant delay in the applicants’ departure after obtaining visas to come to Australia. The delegate identified when the applicants’ visas were granted and that this occurred shortly after the applicants first faced the alleged threats in Bangladesh. The Delegate explored that issue of delay with the first applicant and the first applicant’s explanation. The delegate observed that the first applicant’s voluntary delay in departing Bangladesh for Australia at a time when he and his wife and his son held valid visas for Australia at a time when he claims to have been facing serious threats of murder and kidnap against himself and his family were incongruent with behaviour of an individual who genuinely held a well-founded fear of persecution involving serious harm.

2. The delegate was not satisfied that the first applicant faced any such threats of harm against himself or his family. The delegate considered that the applicant’s delay in departing Bangladesh in order to settle business affairs further supported a conclusion that the applicant departed Bangladesh primarily for economic reasons after adverse business dealings rather than out of a well-founded fear of persecution.

3. The delegate found that the applicant’s fear of harm in Bangladesh was not well-founded. The delegate did not accept that the applicant held a notable position with the JEI for a period of 30 years as claimed. The delegate did not accept that the applicant had any significant political involvement or that any harm suffered, or threats of harm, were for reasons of the applicant’s political opinion as claimed.

4. The delegate was not satisfied that the first applicant’s testimony was truthful, and did not accept that the applicant faces a real chance of persecutory harm for a Convention reason should he be return to Bangladesh now or in the reasonably foreseeable future. The delegate found that he was not satisfied that the first applicant has a real chance of being persecuted for a Refugees Convention reason and was not satisfied the first applicant’s fear was well-founded.

5. The delegate found that Australia had no protection obligation to the applicant and that the first applicant failed to meet the criteria under s.36(2)(a) of the Act.

6. 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 the receiving country, there is a real risk that the first applicant would be subject to significant harm. The delegate was not satisfied that Australia had protection obligations in relation to the first applicant under s.36(2)(aa) of the Act, and refused to grant him a protection visa.

The Tribunal’s Decision

1. On 5 December 2014, the first applicant applied for review of the delegate’s decision. The first applicant was invited to attend a hearing by letter dated 4 March 2016, and the Tribunal postponed that hearing. By letter dated 28 April 2016 the hearing was rescheduled to 19 May 2016.

2. The applicant appeared on that date to give evidence and present arguments. It is apparent from the transcript that the Tribunal raised credibility issues with the first applicant in the course of the hearing, in particular in respect of his claimed membership of the JEI. The Tribunal also raised with the first applicant his dealings with his business partners and the alleged threats from the business partners, and it is apparent from the transcript, as well as the decision of the delegate, that the first applicant’s credit was a live issue.

3. The Tribunal identified the relevant law, including Ministerial Direction No.56 made under s.499 of the Act. The Tribunal identified the applicants’ migration history and their claims and evidence. The Tribunal identified a number of concerns about the evidence of the first applicant which led the Tribunal to find that his claims in relation to his political activities, his business problems, and his reasons for leaving Bangladesh were not credible.

Findings related to the adverse credibility of the primary applicant

1. The Tribunal set out detailed reasons in relation to those adverse credibility findings. The Tribunal also referred to the first applicant giving contradictory and inconsistent evidence regarding his claims of persecution. The Tribunal found that overall the first applicant’s evidence was devoid of any detailed or specific policies which JEI espoused that attracted him and what it advocated over the years.

2. The first applicant’s evidence was superficial at best in relation to the JEI and its goals, philosophy, principles and policies, and lacked any supporting detail which a member of a political party would be able to relay after 30 years of claimed political involvement. The Tribunal noted that the first applicant could not initially recall how many seats that the JEI party won in the 2008 elections, which the primary applicant claimed occurred in 2009. The first applicant later gave evidence that there had been three seats.

3. The Tribunal did not accept the applicant’s explanation for his lack of knowledge and found that it was not consistent with his written claim that he was at the front line and working under the leadership of the prominent JEI national leader and the party general secretary.

4. The Tribunal found that the above concerns were so numerous and significant that it was not satisfied that the first applicant was being truthful about his experience and role with the JEI. The Tribunal was not satisfied that the first applicant was involved in the JEI. The Tribunal did not accept that the first applicant was a member of the JEI or that he was appointed as a Rukon, or that he was involved in protests or demonstrations on behalf of the JEI, or that he was ever targeted by the government or the Awami League activists because he was considered to be a JEI supporter or member.

5. The Tribunal did not accept that the first applicant was targeted in business by his Awami League partners because he was a JEI member or that the applicant, his wife, or child were ever threatened by his partners because he was a JEI member. The Tribunal found that the partnership problems faced by the first applicant in his troubled business were a personal dispute. The Tribunal did not accept that the business dispute gave rise to a Convention-related risk of harm.

6. Having considered the first applicant’s claims and evidence, individually and cumulatively, the Tribunal was not satisfied there is a real chance that the first applicant would face serious harm on return to Bangladesh from the Awami League, the authorities, or anyone else for the Convention reasons of his political opinion or religion as a member of the JEI. The Tribunal was not satisfied that the first applicant has a well-founded fear of persecution for a Convention reason should he return to Bangladesh now or in the reasonable foreseeable future, and the Tribunal was not satisfied the first applicant was a refugee.

7. The Tribunal was not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the first applicant being removed from Australia to Bangladesh there is a real risk he would suffer significant harm in terms of s.36(2)(aa) of the Act. The Tribunal was not satisfied that there is a real risk the first applicant would be arbitrarily deprived of his life, the death penalty would be imposed on him, he would be subjected to torture, or that he would be subjected to cruel or inhumane treatment or punishment, or degrading treatment and punishment.

The second and third applicants

1. The Tribunal referred to the first applicant’s wife and child as not having presented any evidence of any other claims and that there are no implied claims and that they relied upon their membership of the family unit of the first applicant. The Tribunal was not satisfied on the evidence presented by the first applicant that the first applicant’s wife or child had been threatened with harm or kidnapping.

2. The Tribunal found that as the first applicant did not meet the protection criteria, the first applicant’s wife and child could not satisfy the protection criteria as a member of the family unit. The Tribunal was not satisfied the first applicant wife or the applicant child had a well-founded fear of persecution for a Convention reason in Bangladesh.

3. The Tribunal was not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the first applicant wife or child being removed from Australia to Bangladesh there is a real risk they will suffer significant harm. The Tribunal found that it was not satisfied that any of the applicants are persons in respect of whom Australia has a protection obligation and affirmed the decision of the delegate.

Before this Court

1. On 29 September 2016, a Registrar of the Court made orders providing the applicant an opportunity to file affidavit evidence, an amended application, and submissions. The first applicant filed an affidavit annexing the transcript as well as submissions, but no amended application. The application identifies the following 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 Jamaat-E-Islami (JI) 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 and 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 Appeal 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.

2. At the commencement of the hearing, the Court explained to the first applicant that this was a final hearing to determine whether the Tribunal’s decision was affected by relevant legal error. 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 first applicant. The Court explained that, in summary, this meant that the Court was considering whether the Tribunal’s decision was unlawful or unfair.

3. The Court explained to the first applicant that if satisfied that the Tribunal’s decision was unlawful or unfair the Court would set aside the Tribunal’s decision and send it back for further hearing. The Court explained to the first applicant that if not satisfied the Tribunal’s decision was unlawful or unfair, the application would be dismissed.

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

Adjournment application

1. After the identification of evidence, the first applicant indicated that he wanted to seek an adjournment. The first applicant explained that he had a limited education and limited understanding of legal issues and that it had just been explained to him by the interpreter today that he needed to get further material to support his claims. No earlier notice of the adjournment application was given to the first respondent.

2. The adjournment application was opposed by the first respondent. Nothing said by the first applicant from the bar table identified any utility in the granting of an adjournment. These proceedings were commenced on 22 July 2016. Taking into account the orders made by the Registrar, the applicants have had ample opportunity to obtain material if there was relevant material to the application. Further, it is apparent the first applicant did take advantage of the opportunity provided in respect of the Court orders putting on evidence.

3. The Court was not satisfied that an adjournment is warranted in the interests of the administration of justice. It was for these reasons the adjournment application was refused. From the bar table, the first applicant maintained that his child was only three years of age and would have difficulty if he was required to return to Bangladesh. Nothing was said by the first applicant from the bar table that identified any basis upon which there could be found to be jurisdictional error.

Findings in relation to the grounds

1. Ground 1 of the application is in substance a disagreement with the adverse findings made by the Tribunal. The adverse findings in relation to credit were open to the Tribunal on the material before the Tribunal. The Tribunal gave reasons for the adverse credibility findings and those findings cannot be said to make lack an evident and intelligible justification.

2. Inconsistencies identified by the Tribunal in respect of the adverse credibility findings, including the applicants’ delay, reflect logical and reasonable grounds upon which the adverse credibility findings were open. Ground 1 fails to make out any jurisdictional error.

1. Ground 2 is in substance again a challenge to the adverse findings of fact. It is apparent from the Tribunal’s reasons that the Tribunal properly considered the applicant’s claims. For the reasons already given, the adverse credibility findings were open. Ground 2 fails to make out any jurisdictional error.

2. Ground 3 is again a disagreement with the adverse findings made by the Tribunal, and a disagreement in relation to the adverse credibility findings. It was a matter for the Tribunal to determine what weight to give the documents in evidence before it and to determine the first applicant’s credit. Ground 3 fails to make out any jurisdictional error.

3. Ground 4 is again in substance a disagreement with the adverse findings by the Tribunal. The Tribunal correctly identified the relevant law and for the reasons given the adverse findings were open. Ground 4 fails to make out any jurisdictional error.

4. Ground 5 again is in substance a challenge to the adverse findings made by the Tribunal and does not identify any jurisdictional error.

5. Nothing in the application identifies any jurisdictional error.

Further grounds under cover of submissions

1. The first applicant, in his submissions, alleges that the Tribunal failed to ask the correct questions. It was for the first applicant to establish the applicant’s claims and on the basis of the evidence before the Court, including the transcript, the first applicant had a genuine and meaningful hearing.

2. There was no easily ascertainable fact in respect of a critical issue, in which the Tribunal had a duty to make other enquiries. It was apparent that the Tribunal gave the first applicant a proper opportunity to advance his evidence and arguments. The substance of the submissions under the heading “Ground 1” in the first applicant’s submissions fail to identify any jurisdictional error, and are in substance a disagreement with the adverse credit findings by the Tribunal, and are an invitation to this Court to engage in impermissible merits review. This Court does not have jurisdiction to review the merits of the matter.

3. In relation to the submissions under “Ground 2”, it is apparent that the Tribunal considered the first applicant’s claims in relation to kidnapping, and made adverse credibility findings in that regard. Those adverse credibility findings were open. Further it is apparent from the transcript that the Tribunal did enquire about the applicant’s involvement with the JEI and there was nothing in the transcript to identify any denial of procedural fairness or denial of natural justice to the first applicant in the conduct of the hearing.

4. The first applicant’s submissions under “Ground 2”, in substance, invite this Court to engage in impermissible merits review. On the material before the Court, the Tribunal complied with its statutory obligations in the conduct of the review, and complied with the obligations of procedural fairness in the conduct of the review. Nothing in the submissions under “Ground 2” identifies any jurisdictional error.

5. “Ground 3” again is in substance a repetition of the first applicant’s claims and a disagreement with the adverse findings. The Tribunal identified correctly the relevant law and there is no basis, on the material before the Court, to conclude that the Tribunal applied the wrong test in determining the first applicant’s claims.

6. There is no specificity in relation to any alleged failure by the Tribunal to comply with procedures, and the merit of the visa application was a matter for the Tribunal to determine. The Tribunal did refer to country information and there was no identification of any relevant updated material that the Tribunal failed to take into account. Further the Tribunal took into account the whole of the circumstances in determining the first applicant’s application. No jurisdictional error is made out by the detailed submissions under the heading “Ground 3”. The written submissions of the first applicant fail to identify any jurisdictional error.

Conclusion

1. The application is dismissed.

I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:

Date:  10 February 2017