CDI15 v Minister for Immigration and Border Protection
[2016] FCA 947
•11 August 2016
FEDERAL COURT OF AUSTRALIA
CDI15 v Minister for Immigration and Border Protection [2016] FCA 947
Appeal from: Application for leave to appeal: CDI15 v Minister for Immigration & Anor [2016] FCCA 1129 File number: NSD 758 of 2016 Judge: COLLIER J Date of judgment: 11 August 2016 Catchwords: MIGRATION – application for leave to appeal – claims of jurisdictional error and denial of natural justice broad and without particularisation – draft appeal grounds vague – Federal Court cannot undertake merits review – grounds of appeal not raise sufficient doubt regarding primary Judge’s dealing with case – application for leave to appeal dismissed Legislation: Migration Act 1958 (Cth) ss 36(2), 36(2)(aa), 424A, 425
Federal Court Rules 2011 (Cth) r 44.12(1)(a)
Federal Circuit Court Rules 2001 (Cth) r 44.12
Cases cited: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 Date of hearing: 11 August 2016 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 28 Counsel for the Applicant: The Applicant appeared in person with the assistance of an interpreter Solicitor for the First Respondent: Ms C Saunders of DLA Piper Australia Solicitor for the Second Respondent: The Second Respondent filed a submitting notice, save as to costs ORDERS
NSD 758 of 2016 BETWEEN: CDI15
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
COLLIER J
DATE OF ORDER:
11 AUGUST 2016
THE COURT ORDERS THAT:
The application for leave to appeal filed 23 May 2016 be dismissed with costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
COLLIER J:
This is an application for leave to appeal from a decision of the Federal Circuit Court of Australia dated 11 May 2016 in CDI15 v Minister for Immigration & Anor [2016] FCCA 1129. The primary Judge ordered that the applicant’s application for review of the decision of the Administrative Appeals Tribunal (the Tribunal) be dismissed.
Background
The applicant arrived by in Australia from Bangladesh on 28 March 2013 as an unauthorised maritime arrival and applied for a protection visa on 1 July 2013. The applicant’s claim for protection visa was make on the basis that he feared harm if he were to return to Bangladesh.
The applicant claimed that in 2011 members of the Awami League approached him numerous him, inviting him to attend party meetings and demonstrations and asking him to join their party. The applicant stated that he refused the invitations to join the Awami League but attended Awami League functions when threatened if he failed to attend. After a fight broke out at an Awami League demonstration at the end of 2011 or early 2012, the applicant ceased attending Awami League events and refused to join the party. The Awami League approached the applicant in early 2012 requesting him to join their party and when he declined he was beaten and badly injured. The applicant claimed that the Awami League continued to harass and threaten him. The applicant fled his village a number of times to avoid harm from members of the Awami League. After the harassment continued, the applicant fled to Thailand, Malaysia and Indonesia. The applicant stated that threats to his life continued despite him fleeing to Indonesia, and that he was threatened with death if he were to return to Bangladesh.
The applicant’s application for a protection visa was refused by a delegate of the Minister (the delegate) on 28 August 2014. The delegate refused the applicant’s application on the basis that the delegate was not satisfied that the applicant’s claims were credible, and was not satisfied that the applicant was a person to whom Australia owed protection obligations. Specifically, the delegate was not satisfied that the applicant had a genuine fear of harm for any reason in Bangladesh or that there was a real chance of being subjected to significant harm if he were to return to Bangladesh. The delegate was also not satisfied that there was a real chance of persecution for any Convention reason of the applicant if he were to return to Bangladesh.
Tribunal decision
On 2 September 2014, the applicant applied to the Tribunal for a review of the delegate’s decision to refuse him a protection visa. The Tribunal hearing occurred on 28 September 2015 and the Tribunal’s decision, affirming the decision of the delegate, was made on 8 October 2015.
The Tribunal affirmed the decision of the delegate as it was not satisfied that the applicant was truthful in his claims. There were many inconsistencies between the applicant’s oral submissions at the Tribunal hearing and the applicant’s statutory declaration, which the Tribunal held reflected on the credibility and reliability of the applicant’s evidence.
As the Tribunal found that the applicant was not a truthful or credible witness, the Tribunal could not be satisfied that the Awami League approached or harassed the applicant or that he was targeted for reasons he claimed. The Tribunal was also not convinced that the applicant was politically active or a supporter or member of the Awami League, or of any political party in Bangladesh. As such, the Tribunal did not accept that the applicant faced a real chance of serious harm if he were to return to Bangladesh. In this respect, the Tribunal was not satisfied that the applicant was a person to whom Australia owed protection obligations under the Convention.
Further, as the Tribunal found that the applicant was not a truthful witness and was not truthful in relation to critical aspects of his claims, the Tribunal was not satisfied that if the applicant was to return to Bangladesh, that there was a real risk that he would suffer significant harm. As such, the Tribunal also held that the applicant did not satisfy the criterion for complementary protection under s 36(2)(aa) of the Migration Act 1958 (Cth) (the Migration Act).
Federal Circuit Court
The applicant sought review of the decision of the Tribunal in an amended application filed on 15 February 2016. The unnumbered grounds of review before the Federal Circuit Court were set out by his Honour at [9] 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 something 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.)
The primary Judge said that the Tribunal had found that the applicant was not a witness of truth, for reasons including inconsistencies in his evidence at the hearing and his statutory declaration, 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.
His Honour observed:
8.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].
His Honour noted that the respondent filed a Show Cause Application on 19 October 2015. Rule 44.12 of the Federal Circuit Court Rules 2001 (Cth) applies in those circumstances, and (materially for present purposes) is in the following terms:
(1) At a hearing of an application for an order to show cause, the Court may:
(a)if it is not satisfied that the application has raised an arguable case for the relief claimed--dismiss the application; or
(b) …
(c) …
(2) To avoid doubt, a dismissal under paragraph (1)(a) is interlocutory.
The primary Judge said that he had invited oral submissions from the applicant at the hearing but had not received legal submissions in support of the application. His Honour adopted the categorisation of the grounds of review advanced by the Minister, and agreed with the Minister’s submissions. In summary, his Honour found:
·The applicant suggested that the Tribunal incorrectly applied the relevant law, however that ground could not be sustained. Credibility findings are factual findings, which were open to the Tribunal as the arbiter of fact. The applicant’s disagreement with those findings did not reveal any jurisdictional error.
·Even assuming that the Tribunal misconstrued or misunderstood the facts as asserted by the applicant – which the primary Judge did not accept – that did not constitute a jurisdictional error.
·To the extent that the applicant alleged bias in the Tribunal, there was nothing in the written decision of the Tribunal which suggested that the Tribunal was affected by bias.
·There was no denial of procedural fairness to the applicant. The applicant was invited to attend, and did attend, a hearing before the Tribunal 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.
·The Tribunal did not ignore country information, as alleged by the applicant.
·Although the applicant asserted that the Tribunal did not consider complementary protection pursuant to s 36(2)(aa) of the Migration Act, this was not the case.
His Honour was unable to discern any arguable case of jurisdictional error by the Tribunal, and dismissed the application pursuant to r 44.12(1)(a) of the Federal Court Rules 2011 (Cth).
Appeal to the Federal Court
The applicant here seeks leave to appeal from the decision of the primary Judge. In his application filed 23 May 2016 on the following grounds:
Grounds of application
1. The Federal Circuit Court of Australia made jurisdictional errors.
2. Cost.
In his supporting affidavit the applicant claimed further, in summary, that:
·the Federal Circuit Court did not give any weight to the supporting documents which I lodged before the Court in support of his claims;
·the Federal Circuit Court denied the applicant natural justice.
Further, the applicant’s draft notice of appeal from the decision of the Federal Circuit Court refers to the following additional grounds:
Grounds.
(i)The Federal Circuit Court Judge erred in law to come to a decision dismissing my application not finding that the tribunal did not consider that I was a victim of persecution for my non-political belief prior to my departure from Bangladesh
(ii)The Honorable Federal Circuit Court of Australia Judge did not find that there was lack of procedural fairness in the decision of the Refugee Review Tribunal as the Tribunal failed 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.
(iii)The Honourable Federal Circuit Court of Australian Judge made errors of jurisdiction not considering the Tribunal’s failure to give me a reasonable opportunity to respond to independent evidence in possession of the Tribunal which suggests that I shall not be a victim of harassment of my non - political belief if I returned to Bangladesh.
(iv)The Federal Circuit Court of Australia Judge made error to find that the Tribunal 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.
(v)The Federal Circuit Court of Australia Judge erred in not finding that the tribunal 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.
(vi)The Federal Circuit Court of Australia Judge erred in not finding that the tribunal refused my application on the ground that I would face punishment would be completely politically motivated.
(vii)The Federal Court of Australia Judged erred in law not finding that the Tribunal failed to consider that I was discriminated for my political belief. The tribunal failed to consider that I shall be victim of significant harassment for my political belief if I returned to Bangladesh now or in the foreseeable future and my persecution is Convention related.
Orders sought
1. The order of Federal Circuit of Australia dated on 11 MAY 2016 is set aside.
2.An order that the First Respondent pay the applicant’s costs of these proceedings
3. Such further or other orders as to the Court seem fit.
The applicant filed submissions in support of the grounds set out in his application, affidavit and draft notice of appeal, and appeared in Court this morning in person. His oral submissions were, however, very limited and did not expand on the written submissions.
As I explained to the applicant in Court this morning, as leave to appeal is required from the decision of the primary Judge, the applicant is required to demonstrate that there is sufficient doubt as to the correctness of the judgment below to warrant review. Further, the applicant needs to establish that, if the judgment below is assumed to be wrong, substantial injustice would be suffered by the applicant if leave to appeal were refused: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397. In this case I accept that substantial injustice would be suffered by the applicant if the judgment below were wrong and leave to appeal were refused. The real question before the Court is whether there is sufficient doubt concerning the primary judgment to warrant review.
In my view there is not. I have formed this view for the following reasons.
First, to the extent that the applicant claims that the Federal Circuit Court made jurisdictional errors and denied him natural justice, such broad claims require particularisation. In their current state these claims verge on being meaningless. This is further so in relation to the applicant’s claims concerning the alleged denial of natural justice by the Federal Circuit Court, in circumstances where directions were made by the Court below to file further evidence and submissions, and the opportunity was given to him at that hearing to make oral submissions.
Second, and contrary to the claim of the applicant, it appears that no further documents were lodged in the Federal Circuit Court for consideration by the primary Judge. The issue raised by the applicant in this respect is, accordingly, without foundation.
Third, the first draft ground of appeal is broad and vague to the point of being meaningless.
Fourth, as the primary Judge correctly observed, issues of credit are factual matters for the Tribunal. The second and fourth draft grounds of appeal which refer to the Tribunal’s credit findings invite impermissible merits review.
Fifth, the third draft ground of appeal raises the question whether there was further information before the Tribunal which enlivened its obligations under s 424A of the Migration Act. There is no material before the Court to suggest that there was such information, or that the decision of the Tribunal was infected by jurisdictional error for failure to comply with those obligations.
Sixth, the fifth draft ground of appeal contests the factual findings of the Tribunal as to whether the applicant had a genuine fear of persecution for a Convention reason and whether he met the criteria in s 36(2) of the Migration Act. Again, this invites impermissible merits review. For similar reasons, the sixth and seventh draft grounds of appeal raise questions which have no merit in this Court.
In his written submissions the applicant has written in detail about his alleged experiences in Bangladesh, and his interview with the Tribunal. As I explained to the applicant at the hearing, the powers of both this Court and the Federal Circuit Court are limited – under the Migration Act the Tribunal is the arbiter of fact, and this Court and the Federal Circuit Court are able to review the decision of the Tribunal only in respect of errors going to its jurisdiction (that is, in general terms, the manner in which the Tribunal exercised its powers). In the circumstances it is clear that the grounds relied on by the applicant do not raise sufficient doubt as to the manner in which the primary Judge dealt with the case to warrant reconsideration by this Court.
The appropriate order is to dismiss the application for leave to appeal, with costs.
I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier. Associate:
Dated: 11 August 2016
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