CDI15 v Minister for Immigration

[2016] FCCA 1129

FEDERAL CIRCUIT COURT OF AUSTRALIA

CDI15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1129

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, 424A

Cases cited:

Minister for Immigration v Jia (2001) 205 CLR 507
MZWBW v Minister for Immigration [2005] FCAFC 94

Re Minister for Immigration; ex parte Durairajasingham (2000) 168 ALR 407

SZSGAv Minister for Immigration [2013] FCA 774
SZSHK v Minister for Immigration [2013] FCAFC 125

Applicant: CDI15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2846 of 2015

Judgment of: Judge Driver

Hearing date: 11 May 2016

Delivered at: Sydney

Delivered on: 11 May 2016

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms Saunders of DLA Piper

ORDERS

1. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,416 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2846 of 2015

CDI15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Administrative Appeals Tribunal (Tribunal).  The decision was made on 8 October 2015.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. 

2. The applicant is from Bangladesh and had made claims of political persecution.  The background facts relating to the applicant’s claims and the decision of the Tribunal on them are set out in the Minister’s outline of submissions filed on 4 May 2016. 

3. The applicant is a male citizen of Bangladesh.  He arrived in Australia on 28 March 2013 as an unauthorised maritime arrival.[1] 

   [1] CB 112.

4. The applicant applied for a protection visa on 1 July 2013.[2] He claimed to have been targeted by the Awami League to join their party and attend political activities due his and his family's Muslim religion and his brother's suspected involvement in Islamic parties.  He claimed to fear harm from the Awami League because he refused to join their party and attend their events.

   [2] CB 18-74.

5. The application was refused by a delegate of the Minister (delegate) on 28 August 2014.[3] The delegate rejected the entirety of the applicant's claims.

   [3] CB 110-127.

6. The applicant applied to the Tribunal for review of the delegate's decision on 2 September 2014.[4]  He appeared at a hearing on 28 September 2015.[5]  The Tribunal made a decision on 8 October 2015, affirming the decision under review.[6]

   [4] CB 128-155.

   [5] CB 159-162.

   [6] CB 168-176.

The decision of the Tribunal

1. The Tribunal found at [13] that the applicant was not a witness of truth, for the reasons given at [14] to [23]. These included inconsistencies in the applicant's evidence at the hearing and his statutory declaration,[7] and a view that the applicant's actions in returning to his home village was not consistent with his claim to have earlier fled his village in fear of harm.[8]

   [7] Tribunal Decision (TD)[14]-[21].

   [8] TD [22]-[23].

2. On the basis of its credibility concerns the Tribunal rejected the entirety of the applicant's claims at [25]. The Tribunal concluded that the applicant did not satisfy section 36(2)(a) of the Migration Act 1958 (Cth) (Migration Act) at [29] and that he did not satisfy section 36(2)(aa) at [35].

Current proceedings

1. These proceedings began with a Show Cause Application filed on 19 October 2015.  The applicant now relies upon an amended application filed on 15 February 2016.  There are a series of unnumbered grounds in the application, as follows: 

   The AAT erred in law and erred in making findings of well founded fear.

   The AAT wrongly applied the law to the fact as found in relation to the seriousness of harm that constitute persecution as a member of a particular social group and due to the political opinions persecution the applicant claims.

   Particulars:

   Section 91 R (1) (b) & (c) of the Migration Act requires the persecution to be of serious harm and systematic and  discriminatory. The AAT adopted a line of questioning designed to establish the harm from the perspective of the Applicant persecute asking why be harmed rather than address as to the motive. .

   The applicant claims that the AAT misconstruid the facts or misunderstood the facts.

   The applicant claims that he isa truthful witness and whatever he said as correct and truthfull..

   In the very beginning of interview the applicant said that his solicitor helped him draft his Statutory Declaration and that the contents of the documents were read back to him before he signed it. The applicant told the Tribunal he did not wish to mmake any changes or add anything to that document .He told the Tribunal that whatever he wanted to say he has already stated there. (Green Book Page 170 Para 10.)

   The Applicant claims that the Tribunal made a jurisdictional error when it designed or created questions or asked several irrelevant questions to undermine the applicant’s claim for protection despite the fact in the very beginning of interview he did not like to change or add in his claim . The applicant claims that he was denied procedural farness when the his oral evidence was not taken in a judicial environment and he was pressurised to say some thing which would go against his credibility.

   Particulars:

   The Delegate and the Tribunal asked many questions to test the credibility of the oral and written evidence. The Tribunal raised several unreasonable questions such as applicant’;s brother’s affiliation with the Muslim organisation and relation with the Awami League ..The applicant claims that the Tribunal repeated same types of questions to discredit the applicant’s evidence.

   The Tribunal asked about the applicant’s return to his village and reasons for leaving Bangladesh. The Tribunal repeated the same question why he did not mention about the claims at the first interview and why he included about it in the statutory declaration . The applicant truthfully told to the Tribunal he did not get chance to express freely and fairly at the first place and he was not having fair chance to express his claims. The applicant was and is a truthfull witness. The Tribunal discareded all the oral and written evidence without giving any logical reasons. (Gree Book Page 171 Para 14-15)

   The applicant claims that the RRT made a jurisdictional error when it made decision on assumption and probability. The Tribunal’s finding of reasons is Confused and the test for persecution was not applied according to the Rules of the Migration Act.

   Particulars:

   The applicant claims that the Tribunal unreasonably formed the opinion about the documens submitted by the applicant to the Department or Tribunal, The information about the possible harm to the applicant was based on the past events and present circumstances in Bangladesh .. The Tribunal ignored all other independent information and came on the conclusion. The AAT made unreasonable doubt about applicant’s documents related with his case.

   The Tribunal failed to apply the correct test in relation to the complementary Protection Provision contained in section 36(2) (aa) of the Migration Act 1958. The Tribunal made a jurisdictional error when it did not follow Rules of Real Risk Test of persecution and harm.

   Particulars:

   The applicant claims that the AAT , which is a independent juridical body will cover all the issues in determining about the fear of persecution if the applicant is forced to go back to Bangladesh.

   The applicant left Bangladesh because of fear from the new Government Authority governed by the Awami League (AL). The applicant believes that there is a real risk that would suffer significant harm on return Bangladesh.

   The AAT ignored the relevant consideration related with complementary Protections set out in s 36(2)(aa).

   The harm or the mistreatment feared by the applicant on return is for reason of one or more of five grounds of recognized in the Refugee Convention.

   Applicant’s fear of harm is well –founded and that there is a real chance that he will suffer persecution if he returned to Bangladesh.

   (emphasis and errors in original retained)

2. I have before me, as evidence, the court book filed on 10 December 2015.  Only the Minister prepared written submissions in accordance with procedural orders made by a Registrar on 26 November 2015. 

3. I invited oral submissions from the applicant at today’s hearing.  I explained to him that I have some difficulty following and understanding the grounds in the amended application.  I asked for clarification from him.  The applicant was unable to provide clarification.  He said that he had been assisted in preparing the amended application by a person he describes as a lawyer.  He maintains that the grounds are those expressed by him, although the lawyer wrote them in the application.

4. The applicant was unable to make any legal submissions in support of his application.  He repeated the substance of his claims for protection.  The Minister, in his submissions, has attempted to categories and deal with the issues which may arise from the grounds in the amended application.  I accept that categorisation and agree with the Minister’s submissions.

Misapplication of law

1. To the extent that the applicant suggests that the Tribunal incorrectly applied the relevant law in relation to his matter, this ground cannot be sustained. The Tribunal rejected the entirety of the applicant's factual claims on the basis of its credibility concerns. Credibility is a factual determination for the Tribunal,[9] and the applicant's disagreement with these factual findings does not reveal any jurisdictional error.

   [9] Re Minister for Immigration; ex parte Durairajasingham (2000) 168 ALR 407, at 423 [67].

Misconstrued or misunderstood the facts

1. To the extent that the applicant asserts that the Tribunal misconstrued or misunderstood the facts, even where the Tribunal makes a factual finding that is incorrect, that is not sufficient in and of itself, to constitute jurisdictional error.[10]

   [10] MZWBW v Minister for Immigration [2005] FCAFC 94, [28].

Bias

1. In his grounds, the applicant asserts that the Tribunal "designed or created questions or asked several irrelevant questions to undermine the applicant's claim for protection". This ground amounts to an allegation of bias. An allegation of bias must be firmly established and distinctly made and clearly proved.[11] The applicant has provided no further particulars or evidence in support of this allegation. Nothing in the written decision suggests that the Tribunal was affected by bias.

   [11] Minister for Immigration v Jia (2001) 205 CLR 507, at 531 [67].

Denial of procedural fairness

1. The Tribunal's procedural fairness obligations are codified in Division 4 of Part 7 of the Migration Act. The applicant was invited to, and attended a hearing before the Tribunal at which he was given the opportunity to present evidence and arguments in relation to the dispositive issues in the review, in compliance with s.425 of the Migration Act. There was no information before the Tribunal which enlivened its obligations under s.424A of the Migration Act.

Ignored independent information

1. The applicant asserts that the Tribunal ignored all independent information. Such assertion goes no higher than to seek impermissible merits review.  The Tribunal rejected the factual basis of the applicant's claims, and did not accept that he had been targeted in any way by the Awami League.  Contrary to the suggestion made by the applicant, the Tribunal then considered the more general situation in Bangladesh by reference to country information and found that the applicant was not at risk of harm as it did not accept that he or anyone in his family was involved in politics.

Complementary Protection

1. The applicant asserts that the Tribunal did not consider complementary protection. However, the Tribunal in fact provided reasons for finding that the applicant did not satisfy the complementary protection criterion, at [30]-[35]. Those reasons rested upon the earlier consideration of the applicant's evidence and credibility, however the Tribunal was entitled to rely on those factual findings.[12] 

   [12] See for example SZSGAv Minister for Immigration [2013] FCA 774; SZSHK v Minister for Immigration [2013] FCAFC 125.

2. In his closing submissions, the applicant asserted that there is continuing trouble in his home village between members of his family and other villagers.  The applicant said he has been advised not to return to Bangladesh.  Those are matters beyond the scope of this proceeding.  

3. I am unable to discern any arguable case of jurisdictional error by the Tribunal. 

4. Consequently, I will order pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules), that the application be dismissed.

5. I will order the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,416 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  17 May 2016