CAM16 v Minister for Immigration and Border Protection

[2019] FCA 1009

FEDERAL COURT OF AUSTRALIA

CAM16 v Minister for Immigration and Border Protection [2019] FCA 1009

Appeal from:	CAM16 v Minister For Immigration & Anor [2018] FCCA 3130
File number:	NSD 2185 of 2018
Judge:	O'CALLAGHAN J
Date of judgment:	30 May 2019
Date of publication of reasons:	27 June 2019
Date of hearing:	30 May 2019
Registry:	New South Wales
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	No catchwords
Number of paragraphs:	24
Counsel for the Appellant:	The appellant appeared in person (with the aid of an interpreter)
Solicitor for the Respondents:	J Strugnell of MinterEllison

ORDERS

NSD 2185 of 2018

BETWEEN:

CAM16

Appellant

AND:

MINSITER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:	O'CALLAGHAN J
DATE OF ORDER:	30 MAY 2019

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the first respondent's costs, to be agreed or assessed.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
(Revised from transcript)

O’CALLAGHAN J:

1. The appellant appeals from the judgment and orders made by the Federal Circuit Court of Australia (Federal Circuit Court) on 30 October 2018 dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) to affirm a decision not to grant to the appellant a Protection (Class XA) Visa (the Visa). 

2. The appellant is a citizen of Bangladesh.  He arrived in Australia on 6 May 2013 as a passenger on a boat located by the Australian Navy in Australian waters.  He did not have a passport or a visa permitting him to enter Australia.  He was initially detained and then released on a bridging visa.

3. On 6 August 2013, the appellant applied for the Visa.  The appellant claimed that he feared returning to Bangladesh for reasons of his imputed political opinion as a supporter of Jamaat-e-Islami (JI).  He made a number of claims in support of his application for the Visa, including the following:

   (a)He started working as a driver for a senior member of JI when he was about 14 or 15 years old, which would have been in around 2004.  After eight months of employment, his employer asked him to undertake political tasks for JI and he became known as a supporter of JI because of his work.

   (b)After 18 months of employment, he began receiving threats from members of opposition political parties and was told to quit his job or he would be harmed.  About six months after the threats began, he was beaten by a group of opposition political activists, threatened and told to resign.  This happened again six months later, and he regularly received threats that he and his family members would be killed or kidnapped.

   (c)His employer fled the village in mid-2012 due to political problems.  Two and a half months later, the appellant claims that he was kidnapped by a group of men when he was on the way home from the bazaar.  He was driven around in a van and then kept in a locked room.  He was questioned about the whereabouts of his employer and was told that he would be killed.  He managed to escape and got a lift to Dhaka.  Three days after the appellant's escape from the kidnappers, the appellant's brother was beaten by opposition activists.

4. A delegate of the Minister by a decision dated 2 October 2014 refused to grant to the appellant the Visa.  Shortly thereafter, the appellant sought review of the delegate’s decision before the Administrative Appeals Tribunal.  He appeared before the Tribunal at a hearing on 17 February 2016.  The appellant made additional claims at that hearing.  He claimed that his father had lodged a false case against him to prevent him from taking action in relation to a property that his father had sold in Bangladesh.  The appellant claimed that his father lodged this case because he was worried the appellant would take action as he did not receive any of the proceeds of sale.

5. The appellant also provided the Tribunal with two documents.  The first was a notarised statement dated 19 September 2015 made by the appellant’s father which said that he, the father, had cut off all relationship with his son and that he would not inherit any property from him.  The second was a document from the president of the Salanga Thana Branch of the Bangladesh National Party (BNP). 

6. The Tribunal found in the reasons that it gave on 27 June 2016 to affirm the decision not to grant the appellant the Visa that he was not a credible witness, for the following reasons.

7. First, it found that the BNP letter to which I have referred was clearly false and did not reflect the appellant’s claims.  The BNP letter certified that the appellant was known to the President of the Salanga Thana Branch of the BNP, is an activist of the BNP and holds the position of organising secretary.  The Tribunal found that that information could not be correct because the appellant had left Bangladesh in 2013, and that in any event, he had never claimed to be an office-holder or a BNP activist.  The appellant stated that he was not aware of the contents of the document, which, in the view of the Tribunal, indicated that the appellant would “use any means to support his application with no regard to the truth”.

8. Secondly, the Tribunal found that the appellant’s evidence was inconsistent in relation to a number of significant issues, including the age at which he claimed to have started work, the circumstances and timing of his kidnapping, when his position as a driver ceased and where he had lived prior to leaving Bangladesh.  The Tribunal accepted that the appellant worked as a driver for a person named “Jay”, but the Tribunal did not accept that Jay was a senior leader of JI.  As a consequence of this finding, and what the Tribunal described as the appellant’s “superficial, formulaic and repetitive” account of his political involvement, it did not accept that he was involved in political activities or was known as a political activist or supporter of JI.  The Tribunal subsequently rejected the appellant’s factual claims in relation to his political involvement and found that he would not be imputed with pro-JI opinions for reasons of his employment.

9. The Tribunal referred to submissions provided by the appellant’s representative that the information given at the entry interview should be discounted due to problems with the conditions of interview and standard of interpreting.  The Tribunal took this submission into account when making its adverse credibility findings.  The Tribunal also accepted that the appellant was highly aggrieved by his father’s apparent rejection of him, but rejected the appellant’s claim that his father initiated a false case against him in his absence.  Therefore, because it did not accept that there was any prospect of civil or criminal action by his father, the Tribunal did not accept that the appellant would be at risk of harm on return to Bangladesh.

10. The appellant then appealed to the Federal Circuit Court.  He relied on the same grounds that are sought to be raised on this appeal, namely: 

    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.

11. The primary judge found that none of the three grounds revealed any jurisdictional error. 

12. As to the first ground, the primary judge held that because it was wholly generalised and unparticularised and did not identify any matter or aspects of the claim that the Tribunal failed to consider, the ground had no merit, and that in any event, it sought an impermissible merits review.

13. The primary judge dealt with the second and third grounds together, finding that the Tribunal did fully consider the appellant’s claims to fear harm based on Awami League opposition to him, in particular that the Tribunal ultimately rejected the appellant’s claims to have been a senior JI party leader and did not accept that he had worked as a driver for a senior JI leader, or that he had been attacked by Awami League and BNP activists for reasons of his involvement in politics.  The primary judge concluded that the Tribunal had given meaningful consideration to the appellant’s claims that he had been harmed by the Awami League in the past and that they would want to harm him in the future.

14. The appellant then appealed to this court and relies on a Notice of Appeal filed on 26 November 2018.  As I mentioned, that Notice of Appeal relies on the same grounds that were raised before the learned primary judge. 

15. The appellant did not file any written submissions in support of his appeal.  When the matter was called on for hearing, I asked the appellant whether he wished to say anything in support of his case.  The appellant was also given an opportunity to make submissions by way of reply to the submissions, made on behalf of the Minister, by Ms J Strugnell.  In substance, the appellant explained that he had not been able to prepare any written submissions because he was not sufficiently skilled to do so himself and that he would need a solicitor, something that he said he could not afford, because it has not been possible for him to obtain any employment.

16. The appellant also said that he had some documents in support of his claim, but that because he did not have a lawyer, he did not know how to submit them to the court.  At that point, I asked the appellant to provide the documents to me.  They were first shown to Ms Strugnell.  In any event, two of the documents which the appellant handed to the Court were, in fact, already contained in the Appeal Book, because they were before the Tribunal.  Those are the documents that appear at pages 210 and 211 of the Appeal Book.  The appellant also sought to rely on one document written in the Bangla language (marked as exhibit A1).

17. The interpreter, who was in court to assist the appellant, translated the letter.  In substance, the letter is written by the secretary of JI.  It confirms that the appellant is a good person, that he was a worker for JI, and that because of political problems, he left the country, and if he is to return, he may face harm. 

18. The appellant also told me that he does not ask for any government benefits, and has not received any government benefits, and that all he wishes to do is to obtain permission to live in this country. 

19. Dealing first with the letter, as Ms Strugnell submitted, it is not permissible for me to have regard to it because it was not before the Tribunal.

20. In any event, it does not say anything significantly different to any of the claims made and rejected by the Tribunal. 

21. Further, although I have no doubt about the sincerity of the desire of the appellant to remain in this country, and the sincerity of his submission that he was unable to prepare a written submission because he could not afford a solicitor, such matters are not relevant to the task that this court performs.  It is not permissible on a hearing such as this to engage in a merits review, and the matters raised by the appellant are not relevant to my task.

22. Turning now to the grounds of appeal.  In my view, to the extent that the grounds are to be construed as asserting that the primary judge erred in failing to find the Tribunal had fallen into error, the primary judge was clearly correct to dismiss the appellant’s appeal for the reasons that the judge gave.

23. As to ground one, the absence of any particulars means that the ground is meaningless. It was properly rejected.  Grounds two and three may be dealt with together, as the learned primary judge dealt with them.  As the primary judge found, the Tribunal was not required independently to assess whether the appellant faced a risk of harm from the Awami League.  The appellant’s claims in relation to the Awami League were connected with the claims in relation to his employment.  The appellant had claimed that his employer tasked him with erecting posters in Awami League-dominated areas, that he was often confronted by the Awami League about his work, and that he was subject to attacks by the Awami League because of his work.

24. The Tribunal was not required to consider independently the appellant’s claim to fear harm from the Awami League, because it did not accept the factual basis for the claim.  In particular, it did not accept that the appellant was involved in any political activities or was known as a political activist or supporter of JI because of his employment.  Further, the Tribunal did not accept that the Awami League had attacked him because of his involvement in politics, because it found that the appellant had no such involvement.  It follows that there is no merit to any of the grounds of appeal, and that the appeal must be dismissed with costs.

I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Callaghan.

Associate:

Dated:       27 June 2019