Cam16 v Minister for Immigration

[2018] FCCA 3130

FEDERAL CIRCUIT COURT OF AUSTRALIA

CAM16 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 3130

Catchwords:

MIGRATION – Migration Act 1958 (Cth) – application for a Protection visa – Administrative Appeals Tribunal affirms decision of Delegate of the Minister for Immigration not to grant – applicant claimed decision of Administrative Appeals Tribunal affected by jurisdictional error – no basis to claims of jurisdictional error – application for judicial review dismissed.

Legislation:

Migration Act 1958 (Cth)

Cases cited:

AWA15 v Minister for Immigration [2018] FCA 604

AZU15 v the Minister for Immigration and Border Protection (2016) 240 FCR 143

Applicant: CAM16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2010 of 2016

Judgment of: Judge Dowdy

Hearing date: 30 October 2018

Delivered at: Sydney

Delivered on: 30 October 2018

REPRESENTATION

The Applicant appeared in person.

Counsel for the First Respondent: Mr D. McLaren

Solicitors for the First Respondent: Minter Ellison

THE ORDERS OF THE COURT ARE AS FOLLOWS:

1. The Application filed in this Court on 27 July 2016 is dismissed.

2. The Applicant is to pay the First Respondent’s costs of the proceeding in the sum of $5,600.

3. Pursuant to Rule 36.03(b) of the Federal Court Rules 2011 (Cth) the Applicant have up to and including 28 November 2018 to file any Notice of Appeal from Orders 1 and 2 above in the Federal Court of Australia.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2010 of 2016

CAM16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

EX TEMPORE

(Revised from Transcript)

1. The Applicant is a male citizen of Bangladesh aged 28 years, having been born on 3 January 1990.

2. By Application filed in this Court on 27 July 2016 he seeks to quash and have re-determined the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 27 June 2016 affirming the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 2 October 2014 refusing to grant to him a Protection (Class XA)(Subclass 866) visa (Protection Visa).

Background

1. The Applicant is an illegal maritime arrival who arrived in Australia on 6 May 2013 and on 6 August 2013 applied for the Protection visa. 

Relevant Statutory Criteria for the Grant of a Protection Visa

1. A convenient summary of the relevant grounds and criteria for the grant of the Protection visa in this proceeding can be found in the judgment of Charlesworth J in AWA15 v Minister for Immigration [2018] FCA 604 at [5] – [7] as follows:

   [5]  The Minister is to grant a visa if satisfied that the visa applicant satisfies the relevant criteria. If the Minister is not so satisfied, he must refuse to grant the visa: s 65(1) of the Act. For the appellant to qualify for the grant of a protection visa it was necessary for the Minister to be satisfied that (among other things) the appellant fulfilled either the criterion in s 36(2)(a) of the Act (Refugee Criterion) or the criterion in s 36(2)(aa) of the Act (Complementary Protection Criterion).

   [6]The Refugee Criterion requires that the Minister be satisfied that the visa applicant is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention, as amended by the Refugees Protocol, namely a person who:

   ... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.

   [7]Relevantly, the Complementary Protection Criterion requires that the visa applicant be a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because:

   ... the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; ....

Applicant’s Claims to Protection

1. In his irregular maritime arrival induction interviews held on 2 and 7 June 2013, in which he only gave his basic claims, the Applicant said that he had been assaulted in Bangladesh by members of political parties, namely, the Awami League (AL) and the Bangladesh Nationalist Party (BNP).  Then, in a statutory declaration declared on 31 July 2013 and which formed part of his Protection visa application, he gave his claims more extensively.  Those claims to protection were to the effect that he claimed to fear harm from kidnapping, torture and possible death from members of the AL and other Bangladeshi political parties, such as the BNP. He claimed that he had an imputed political opinion because of his support of the Islamist political party called Jamaat-e-Islami (JI) due to his prior work as a driver for a senior JI party leader.  The Applicant also claimed to fear harm from the Bangladesh police who he believes have the capacity and desire to locate and harm him. 

2. The Applicant further claimed that:

   a)he was born and raised in Dhubil Village in the Sirajgon District of Bangladesh;

   b)when he was approximately 14 or 15 years old he started working as a driver for a senior member of the JI in his district and his boss started to discuss politics with him and encouraged him to support the JI;

   c)after working as a driver for eight or nine months the boss began to force the Applicant to undertake tasks for JI, including observing and reporting on JI protests and shuttling money and instructions to party supporters;

   d)this meant that he was known within his village as a supporter of JI due to his work for the JI leader;

   e)after 18 months working as a driver, he began receiving threats from members of opposing political parties who approached him on the street and at his home and who threatened him with violence unless he quit his job;

   f)fearing for his safety he informed his boss of the threats and requested to be taken off political tasks.  The boss, however, gave him the choice of either resigning from his job completely or continuing to drive and undertake JI-related tasks;

   g)he was afraid that he would be unable to find other work and continued driving for the JI leader;

   h)after approximately two years a driver was beaten by a group whom he suspected to be AL supporters.  He was threatened with further harm and told to resign from his position;

   i)he continued to receive threats regularly over the following years including being warned that his family would be killed or kidnapped.  Then, in the middle of 2012, the boss fled the village due to his political problems.  About two and a half months later the Applicant was kidnapped by a group of six to seven men from the street on his way home from the bazaar, pushed into the back of the minivan and driven for two and a half hours;

   j)he was taken into a small room and interrogated and questioned concerning the whereabouts of his boss and told that he, the Applicant, would be killed.  He told his kidnappers that he had no information about his boss and was slapped across the face;

   k)in the evening he managed to escape from the room from where he was being held by pushing away a piece of tin ceiling.  He ran to the closest main road and then got a lift to Dhaka and remained there and did not return to his home village before departing Bangladesh; and

   l)three days after his escape from his kidnappers the Applicant’s brother was beaten.  His siblings continued to be harassed over the next six months because of the Applicant’s involvement with JI.  Fearing for his family’s safety the Applicant decided to flee Bangladesh with the assistance of his uncle.

Decision of Delegate

1. The Applicant had an interview with the Delegate on 29 September 2014.  The Delegate perceived a number of internal inconsistencies between the Applicant’s written claims and his verbal testimony at the interview.

2. In his Decision Record the Delegate noted these inconsistencies and came to the view, having reviewed the claims, that:

   a)the Applicant had not worked as a driver for a JI leader, and therefore had not previously suffered threats of violence on account of this employment;

   b)the Applicant was not kidnapped, beaten and threatened with death in Bangladesh; and

   c)the Applicant is not of an interest to the Bangladesh police.

3. Accordingly, the Delegate found that Australia did not have protection obligations to the Applicant under either the Refugee’s Convention criterion or the complementary protection criterion and he refused to grant a Protection visa to the Applicant.

Tribunal Decision

1. On 9 October 2014 the Applicant lodged an application for merits review of the Delegate’s decision with the Tribunal. On 17 February 2016 the Applicant appeared before the Tribunal at a hearing to give evidence and present arguments. At this hearing he gave two documents to the Tribunal, being:

   a)an undated letter from a Mr Motiar Raham who claimed in the letter to be President of the BNP and its Salanga Thana Branch in Bangladesh (BNP letter); and

   b)a declaration by his father before a notary public dated 19 September 2015 which confirmed and affirmed that the Applicant was disobedient to his father and his father had no relationship with the Applicant and that he had cut up all relationship with him.

2. From [18] – [74] of its Decision Record the Tribunal recorded the Applicant’s claims as made previously and then at the Tribunal hearing and its questioning and discussion of and with the Applicant concerning those claims.

3. From [75] – [79] of its Decision Record the Tribunal assessed the Applicant’s credibility. 

4. At [75] the Tribunal recorded that it did not find the Applicant to be a credible witness and it then set out the reasons for that finding and concluded at [78] that, in its overall assessment of its claims, the Tribunal had given little or no weight to much of his evidence because it was either found to be not credible, vague or lacking in coherence. 

5. From [80] – [102] the Tribunal assessed his claims and at [102] concluded as follow:

   [102]For reasons set out above the Tribunal considers that the applicant has not given a full and frank account of his circumstances. It considers that the applicant had significant family issues and that he was also not able to find work which provided him with a reasonable income. It considers he left Bangladesh to improve his economic circumstances and not because he feared harm in Bangladesh.

6. From [103] – [116] the Tribunal assessed whether or not the Applicant met the Refugee’s Convention criterion and, from [117] – [123], whether he met the complementary protection criterion and found that he met neither. Accordingly, the Tribunal affirmed the decision of the Delegate not to grant the Protection visa to the Applicant.  I note that the grounds for finding that the Applicant was not a credible witness basically related to inconsistencies in the events and claims that he had made. 

7. In particular, the Tribunal found at [74] of its Decision Record that the BNP letter was a document which was clearly false and did not reflect the Applicant’s claims of his current situation.  It had pointed out at [42] that the BNP letter, which asserted that the Applicant was known to the writer and was “…an activist of Bangladesh Nationalist Party-BNP and holds the position of Organising Secretary of Dhubil Union BNP…”, made a claim to an office-holding position that the Applicant himself had never actually asserted that he had held, and further that it spoke in the present tense about him being the organising secretary, which could not be correct given that the Applicant had been in Australia since June 2013. The Applicant explained the letter, as recorded at [74], by claiming that he did not know what was in it.

Grounds of Attack on Tribunal Decision in this Court

1. The Grounds of the Application are as follows:

   1.The Tribunal failed to exercise its jurisdiction by failing to consider all aspects of my claims.

   2.The Tribunal failed to consider my claim on the basis of my political opinion against the Awami League Party as an independent claim.

   3.The Tribunal failed to assess the harm that I may face based on my political opinion against the Awami League Party.

Consideration

Ground 1

1. This Ground is completely generalised and unparticularised.  It does not identify those matters or aspects which it is claimed that the Tribunal “failed to consider”.  At the hearing the Applicant addressed the Court but basically made merits review claims which are not available in this Court.  He did not articulate what were the aspects of his claims which the Tribunal “failed to consider” and, in my view, Ground 1 fails to establish that the decision of the Tribunal is affected by jurisdictional error.

Grounds 2 and 3

1. These grounds can logically be dealt with together.  The simple fact of the matter is that the Tribunal, in my view, fully considered the Applicant’s claim based on AL opposition to him, based on his claimed political affiliation with JI. 

2. At each of [28], [29], [31], [62], [69] and [71] the Tribunal recorded the Applicant’s claims about damage, persecution or threats from the AL.  However, at [89] – [91] the Tribunal rejected his claims to have been a senior leader of the JI party and did not accept that he had worked as a driver for a senior leader of the JI party or “that Awami League and BNP activists attacked him several times for reasons of his involvement in politics.” 

3. In my view the Tribunal gave meaningful consideration to the Applicant’s claims that the AL had harmed him in the past and would want to harm him in the future.

4. In these circumstances, in my view Grounds 2 and 3 fail to establish jurisdictional error.

5. I note, finally, that at the hearing I inquired of Mr McLaren, who appeared for the Minister, whether the Minister as a model litigant was able to discern any other jurisdictional error that the Applicant might avail himself of, considering that the Applicant is not himself a lawyer and clearly does not seem to understand the confined nature of the exercise which I was undertaking which, as I explained to him, was not a merits review of the Tribunal decision but merely ascertaining whether or not the Tribunal decision was affected by jurisdictional error. 

6. Mr McLaren advised me, on behalf of the Minister, that he had been unable, having read and considered the Decision Record of the Tribunal, to find any jurisdictional error which might be available to the Applicant.

7. I note that I have also read the Decision Record of the Tribunal and am unable to discern any jurisdictional error. The Decision Record of the Tribunal appears to be rationally based on a full consideration of the Applicant’s claims and is entirely conventional in considering and comparing his claims and his evidence as given from time to time and finding that there were inconsistencies in that evidence, which led it to find that he was not a credible witness. 

8. Further, it does not appear to me to be the case that the Tribunal’s findings, about the Applicant’s credit could be said to be unreasonable, without a logical, rational or probative basis or founded on objectively minor matters, nor could they be regarded as “blanket, reflect or exaggerated adverse credit findings”: AZU15 v the Minister for Immigration and Border Protection (2016) 240 FCR 143 per Allsop CJ, Kenny and Bromwich JJ at 145 [11].

Conclusion

1. Accordingly, in my view, the Applicant has failed to establish that the decision of the Tribunal is affected by jurisdictional error and the Application filed in this Court is to be dismissed. 

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Dowdy

Associate: 

Date:  7 November 2018