BYT16 v Minister for Immigration

[2017] FCCA 217

FEDERAL CIRCUIT COURT OF AUSTRALIA

BYT16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 217

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugee Division) – Protection (Class XA) visa – the applicant had a real and meaningful hearing before the Tribunal – adverse findings made were open on the material before the Tribunal – adverse findings cannot be said to lack an evident and intelligible justification – no jurisdictional error identified – 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: BYT16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1966 of 2016

Judgment of: Judge Street

Hearing date: 10 February 2017

Date of Last Submission: 10 February 2017

Delivered at: Sydney

Delivered on: 10 February 2017

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents: Mr A Day
DLA Piper Australia

ORDERS

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

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1966 of 2016

BYT16

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 29 June 2016 affirming a decision of the delegate not to grant the applicant a Protection visa.

2. The applicant was found to be a citizen of Bangladesh and his claims were assessed against that country. The applicant arrived at Darwin by boat on 6 May 2013 as an Illegal Maritime Arrival. On 13 August 2013 the applicant applied for a protection visa.

The Delegate

1. The applicant claims to fear being persecuted if he returns to Bangladesh because he was targeted by members associated with the Awami League in his village because of his membership of the Jamaat-e-Islami Party, a political party in Bangladesh. The applicant claims that he joined the Jamaat-e-Islami Party due to its anti-corruption platform and that it represented Muslims of his country.  The applicant claims that as a member of the Jamaat-e-Islami party he attended party meetings and political discussions and during elections the applicant joined political rallies to support Jamaat-e-Islami and put up posters, distributed election materials and encouraged people to join Jamaat-e-Islami. 

2. The applicant claims that he ran a social welfare institution called the Social Welfare Islamic Youth Organisation (“SWIYO”) in his area. The applicant claims that he assisted the poor which made the applicant gain a profile for being politically active. The applicant claims that his work with the SWIYO came to the attention of the Awami League and that they wanted him to join them. 

3. The applicant alleges that in 2011 Awami League supporters attacked the SWIYO offices and that they objected to the charity work. The applicant alleges that in mid-2011, twenty-five members of the Awami League attacked his shop and the applicant managed to escape unharmed. The applicant claims that six months later, the same mob returned to his shop and beat him up. The applicant claims that he required hospitalisation for four months. The applicant claims that after his release from hospital and the reopening of the shop, the applicant started to receive threats from the Awami League over the phone. 

4. The applicant alleges that in January 2013 about 15 Awami League members came to the applicant’s house looking for him and that when he saw them he fled and hid at his aunt's house for about twenty days.  The applicant claims he could not report the matter to police because the police are connected with the Awami League.  The applicant alleges that those threats made him leave his country and he went to Indonesia where he stayed until he departed for Australia. 

5. The applicant also provided some documentary evidence being an alleged membership in his name from the Kulbaria Islamia Library, a medical certificate in the applicant's name dated 2 June 2012, an alleged newspaper article relating to the applicant saying that he was a businessman who was targeted for political reasons, and a copy of an internet post with a photo of the applicant dated 3 September 2014. 

6. The delegate found the applicant's testimony to be vague, evasive, inconsistent and lacking the relevant level of detail. The delegate concluded that the applicant had significantly misrepresented the level of his fear and that this raised credibility issues in respect of the applicant’s claims.  The delegate concluded that the claims should be dismissed in their entirety and found that the applicant had fabricated these claims to strengthen his Protection visa application. 

7. The delegate referred to the applicant's fears concerning political involvement. The delegate found that the applicant was not involved in the Jamaat-e-Islami Party during his stay in Bangladesh and did not accept that the applicant was a member of the Jamaat-e-Islami Party for which he was targeted as claimed. The delegate referred to the incidents of threats and intimidation and concluded that the applicant had not been truthful about those circumstances. The delegate referred to the newspaper articles and did not accept that the articles had been published about the applicant for the claimed reasons. 

8. The delegate was not satisfied the applicant has a real chance of being persecuted for a Refugees Convention reason and was not satisfied the applicant's fear was well founded. The delegate was 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 is a real risk that the applicant will be subject to significant harm. The delegate was not satisfied that Australia had protection obligations to the applicant and found that the applicant failed to meet the criteria under s.36(2) of the Act.

The Tribunal

1. On 6 November 2014 the applicant applied for review. On 7 November 2014 the applicant was sent a letter acknowledging the application for review. On 5 February 2016, more than a year after the making of the application for review, the applicant was sent a letter identifying that the Tribunal had considered the material before it but was unable to make a favourable decision on that information alone. That letter invited the applicant to attend a hearing on 17 March 2016 to give evidence and present arguments. 

Case notes dated 14 March 2016 and 16 March 2016

1. On 14 March, three days before the hearing, there is a case note which indicates the applicant called the Tribunal to say that he had problems with his teeth after dental work and it was explained to the applicant that the Tribunal would not consider a postponement unless there was a request in writing and a medical certificate provided. The case note indicates that the applicant was informed that if that material was provided, the Tribunal would decide whether to postpone the hearing or to proceed. 

2. There is a further case note the day before the hearing on 16 March 2016 where the member rang to request whether there was a medical certificate that the applicant wished to provide.  On that occasion the applicant conveyed that he could come any day but not tomorrow, but that he could not get a medical letter. The case note records that it was explained to the applicant that he would be called back with a Bengali interpreter. 

3. There is a further case note on 16 March 2016 which indicates that the applicant was again contacted and told that the Tribunal requires some medical evidence stating that the applicant is unable to attend the hearing and when the applicant will be able to attend the hearing, if there is to be a request for an adjournment. It was explained to the applicant that the Tribunal would then consider that request. It was explained to the applicant that if he does not provide a medical certificate, then the hearing will proceed as scheduled. The applicant suggested that he had applied for a    Medicare card but had not received it yet. The applicant was informed that he could get medical evidence from the same dentist that he had seen. It was explained to the applicant that the Tribunal would not adjourn the hearing without medical evidence. Materially, the case note records that the applicant said he understood what he had been told. 

The hearing

1. The applicant attended the hearing date on 17 March 2016 to give evidence and present arguments. From the hearing record, it is apparent that the hearing took approximately two and a half hours. The Tribunal identified the outcome of the applicant's application before the delegate. The Tribunal identified the relevant law. The Tribunal then identified the applicant's claims and evidence. 

2. The Tribunal provided reasons in relation to why it found the applicant's evidence to be implausible and identified inconsistencies in the applicant's evidence. There is no mention in the Tribunal's reasons of any difficulty by the applicant in participating in the hearing and there is no mention in the Tribunal's reasons or in the hearing record of any request for an adjournment. The Tribunal identified that the inconsistencies gave rise to concerns in relation to the credibility of the applicant. The Tribunal did not accept the applicant's explanation for the inconsistencies in his evidence. 

3. The Tribunal also asked about matters that the applicant had not earlier mentioned and asked for his explanation as to why he had failed to mention the same.  The Tribunal referred to the documents provided by the applicant. The Tribunal's reasons reflect raising the issue of concerns about the authenticity of the documents with the applicant and also discussing the country information with the applicant in relation to the prevalence of fraudulent documents. 

4. The Tribunal found the applicant was not a witness of truth and that he had fabricated his material for the purpose of obtaining a protection visa. The Tribunal did not accept that any of the applicant's brothers were questioned about his whereabouts or beaten or threatened or extorted for money or are/were in hiding. 

5. The Tribunal did not accept that the applicant was a supporter or member or was in any way associated with the Jamaat-e-Islami Party. The Tribunal did not accept any of the applicant's claims that flow from that alleged membership. The Tribunal did not accept that the applicant was a supporter or member or general editor or was in any way associated with the SWIYO. The Tribunal did not accept any of the claims of the applicant that flow from that alleged membership. The Tribunal was not satisfied that the injury to the chairman of the SWIYO had any relevance to the applicant. 

6. The Tribunal did not accept that any members of the applicant's family have suffered any harm because of the applicant or their relationship with the applicant. The    Tribunal did not accept that the applicant was or is of adverse interest to the Awami League, its leaders, members or supporters. The Tribunal did not accept that the applicant and his friends have false cases against them or any cases against them. The Tribunal did not accept that the applicant was or is of adverse interest to the Bangladeshi authorities including the police and the judiciary. 

Assessment of protection obligations for a Refugee Convention reason

1. The Tribunal was not satisfied that there is a real chance the applicant will suffer serious harm for any of the reasons claimed if he returns to Bangladesh now or in the reasonably foreseeable future. Having considered the applicant's claims individually and cumulatively, the Tribunal found that there is no real chance the applicant would suffer persecution on the grounds of his actual or imputed political opinion, or any other Refugee Convention reason if the applicant returns to Bangladesh now or in the reasonably foreseeable future. The Tribunal found the applicant did not have a well-founded fear of persecution for a Refugee Convention reason. The Tribunal found the applicant did not satisfy the criterion under s.36(2)(a) of the Act.

Assessment of protection obligations for complementary protection

1. The Tribunal was not satisfied there were substantial grounds for believing that, as a necessary or 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. The Tribunal found the applicant did not satisfy the criterion under s.36(2)(aa) of the Act. Accordingly, the Tribunal affirmed the decision of the delegate.

Before this Court

1. The application in this Court 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. On 6 October 2016, the Registrar of the Court made orders fixing the matter today for a show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001. The orders made by the Registrar also gave the applicant an opportunity to file an amended application, affidavit evidence and submissions. No such documents were filed by the applicant. 

3. At the commencement of the hearing, the Court explained to the applicant that the hearing was to determine whether the applicant had an arguable case under r.44.12 of the Federal Circuit Court Rules 2001. The Court explained that this involved considering whether the applicant had an arguable case that 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 applicant. 

4. 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 that if the Court was satisfied there was a reasonable argument that the Tribunal's decision was affected by relevant legal error, the matter would be fixed for hearing on another occasion. The Court explained to the applicant that if the Court was not satisfied that there was a reasonable argument that the Tribunal's decision was affected by relevant legal error, the application would be dismissed. 

5. 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. It was in the course of identifying the evidence before the Court that the applicant first raised and sought the adjournment which was refused for the reasons given herein. 

Consideration of an adjournment

1. At the commencement of the hearing, the applicant indicated that he wanted some more time because there were documents in the post.  The applicant explained that the documents in the post went to his political involvement and he wanted an adjournment in order to obtain those papers. The adjournment was opposed by the first respondent.  No notice of the adjournment was given to the first respondent. This Court is not in a position to make fresh findings of fact in relation to the applicant's claims. The further documents the applicant referred to as allegedly being in the post was not material this Court could receive into evidence and it would not assist the Court in determining whether there was any arguable jurisdictional error.

2. The Court was not satisfied that an adjournment would be of any utility and formed the view that an adjournment would only unnecessarily increase the costs of the parties and utilise limited court time. The Court was not satisfied that an adjournment was warranted in the interests of the administration of justice.  It was for these reasons the adjournment was refused. 

Consideration of the Applicant’s claims from the bar table

1. The applicant raised from the bar table that he had been sick at the time of the hearing and had not been able to meaningfully participate. No ground in the application advances any such proposition and that proposition is not consistent with the case note entries in which the applicant raised a problem in relation to his teeth. The applicant indicated from the bar table that his teeth still need work. There was no suggestion from the bar table that the applicant was not able to participate meaningfully in today's hearing. I am satisfied that the applicant understood the nature of this hearing and had a reasonable opportunity to put submissions in support of why he had an arguable case. 

2. The reference to the applicant being sick does not accord with what was raised in the case notes. It is clear from the communications recorded in the case note that the applicant was informed by the Tribunal that if presented with medical evidence and a request for an adjournment in writing, the same would be considered. 

3. It is apparent that this was first raised three days prior to the intended hearing date with the applicant. In response to the applicant’s request for an adjournment, and again on the day before the hearing, the applicant was invited to obtain a medical certificate. No medical certificate was produced before the Tribunal. The case note records that the applicant understood what had been explained to him in relation to obtaining a medical certificate. 

4. There is no evidence to support that the applicant was in any way sick or incapacitated on the date of the hearing. The reasons of the Tribunal are consistent with the applicant having a real and meaningful hearing, and do not disclose any request for an adjournment by the applicant. I am satisfied on the material before the Court that the applicant had a real and meaningful hearing, consistent with the statutory obligations of the Tribunal. 

1. I am satisfied on the material before the Court, that it was reasonable for the Tribunal to proceed with the hearing on 17 March 2016.  Nothing said by the applicant from the bar table identified any reasonably arguable case of jurisdictional error in the Tribunal proceeding with the hearing on 17 March 2017 or in the conduct of the review. The applicant did not raise any other matter from the bar table other than indicating that he wished to rely upon the grounds in his application. 

Consideration

Ground 1

1. Ground 1 is in substance a challenge to the adverse finding in relation to the applicant’s alleged political activities. The adverse finding by the Tribunal was open on the material before the Tribunal. The Tribunal provided logical and reasonable reasons in support of the adverse credibility findings. Nothing was said from the bar table to identify any arguable error in relation to the adverse credibility findings. On the material before the Court, the adverse credibility findings cannot be said to lack an evident and intelligible justification. Ground 1 is in substance an invitation to this Court to invite an impermissible merits review. Ground 1 fails to identify any arguable issue of jurisdictional error. 

Ground 2

1. Ground 2 is in substance, a challenge to the adverse findings of fact in relation to the applicant’s allegations that he was physically abused and the adverse credibility findings. For the reasons already given, the adverse credibility findings were open to the Tribunal. Ground 2 again, is in substance an invitation for this Court to engage in impermissible merits review. The adverse findings in relation to the applicant’s claims of physical harm and threats was open to the Tribunal. Ground 2 fails to make out any arguable jurisdictional error. 

Ground 3

1. In relation to Ground 3, it is apparent from the Tribunal’s reasons that the Tribunal considered the applicant’s claims of alleged persecution and made adverse findings that were open to the Tribunal.  Ground 3 also seeks to take issue with the Tribunal’s adverse finding in relation to credibility and rejection of the applicant’s documents. It was a matter for the Tribunal to determine what weight to give the documents adduced by the applicant and it was a proper matter for the Tribunal to determine the applicant’s credibility. The adverse findings by the Tribunal in relation to the applicant’s claims and documents were open and cannot be said to be the subject of illogicality or unreasonableness. Ground 3 fails to identify any arguable jurisdictional error.

Ground 4

1. Ground 4 is in substance an impermissible challenge to the adverse finding of fact by the Tribunal that the applicant did not have a well-founded fear of persecution. That adverse finding was open to the Tribunal. Ground 4 fails to identify any arguable case of jurisdictional error. 

Ground 5

1. Ground 5 seeks to take issue with the Tribunal’s findings in relation to the applicant’s political activities motivating serious or significant harm. It is apparent from the Tribunal’s reasons that the Tribunal considered the applicant’s claims in relation to his political activities and took into account his claims in respect of imputed political beliefs and made adverse findings that were open to the Tribunal in that regard. Ground 5 again, is in substance an impermissible challenge to the adverse findings of fact made by the Tribunal that were open to the Tribunal.  Ground 5 fails to identify any arguable case of jurisdictional error.

Conclusion

1. 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 the application fails to disclose any arguable case of jurisdictional error. Nothing said by the applicant from the bar table identifies an arguable jurisdictional error. I am satisfied that this is an appropriate case in which to exercise the Court’s powers under r.44.12 of the Federal Circuit Court Rules 2001.

2. For these reasons, the application is dismissed under r.44.12 of the Federal Circuit Court Rules 2001.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 16 February 2017