CER15 v Minister for Immigration & Anor

[2016] FCCA 329

FEDERAL CIRCUIT COURT OF AUSTRALIA

CER15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 329

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Protection visa – whether Tribunal erred in making adverse credit findings against applicant – whether the applicant was properly notified of Tribunal date – whether applicant was denied procedural fairness – whether the Tribunal was biased – whether the Tribunal applied the correct test in relation to complementary protection – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 422B, 425, 425A, 426A, 476,

494C

AZAFB v Minister for Immigration and Border Protection [2015] FCA 1383

Applicant: CER15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2887 of 2015

Judgment of: Judge Street

Hearing date: 18 February 2016

Date of Last Submission: 18 February 2016

Delivered at: Sydney

Delivered on: 18 February 2016

REPRESENTATION

The Applicant appeared in person

Solicitors for the First Respondent: Ms A Wong
DLA Piper

ORDERS

1. The amended application is dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the amount of $4400.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2887 of 2015

CER15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Tribunal affirming a decision of the delegate not to grant the applicant a protection visa. The decision of the Tribunal was delivered on 17 September 2015.

2. The applicant was found to be a citizen of Bangladesh and his claims were assessed against that country.  The applicant claimed to have travelled on a passport obtained by an agent in approximately May 2011 from Bangladesh to Thailand where he remained for about 10 days until he journeyed to Malaysia.  The applicant says he remained in Malaysia until January 2013 when he boarded a boat that took him to Indonesia. 

3. The applicant arrived by boat as an illegal maritime arrival in Australia on 28 March 2013.  On 1 July 2013 the applicant applied for a protection visa.  The applicant claimed to fear serious harm if he returned to Bangladesh because of his interest and support for the BNP, his participation in local political rallies and meetings and the proximity of his father’s grocery store to the BNP club. The applicant also alleges he made a complaint against AL supporters following an attack on the grocery store of his father in early 2009. 

4. The delegate made adverse findings in relation to the credibility of the applicant and rejected the applicant’s claims. The Tribunal was not satisfied that the applicant had a real chance of being persecuted for a Refugee Convention reason and was not satisfied the applicant’s fear was well founded. The delegate found the applicant did not meet the criteria for a protection visa under s.36(2)(a).

5. The delegate also found that he was not satisfied there were substantial grounds for believing that it was 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. In those circumstances the delegate found the applicant did not meet the criteria for complementary protection under s.36(2)(aa) of the Migration Act 1958. 

6. The delegate found, in considering the applicant’s credibility, that there were a number of inconsistencies in the applicant’s claims as well as a lack of detail, vagueness and evasiveness in his responses.  The delegate found the applicant had fabricated and embellished claims with the intention of creating a profile of a refugee. 

7. It was in those circumstances that the applicant lodged an application for review on 19 September 2014.  That application for review identified for the purpose of communication an email address as well as a residential address.  The review application also identified a telephone number.  By letter dated 14 July 2015 the Tribunal invited the applicant to attend a hearing on 17 September 2015.  That letter was sent by email to the applicant’s email address as identified in the application for review. 

8. The applicant acknowledges that he received the email but did not open it.  The applicant says he is illiterate and that he was expecting to receive a letter.  The applicant identified that he had received an acknowledgment of his application for protection sent by letter to his residential address and also tendered a letter sent from the Tribunal concerning the applicant’s Medicare confirmation of application dated 6 July 2015, sent to his residential address.  The applicant also alleged that at some stage he had lost his telephone, and that his telephone number had changed, and the applicant contended this was around the date of 6 July 2015.  The applicant had filed two affidavits in these proceedings, and in neither of those affidavits was any issue of a change of telephone number raised.  There is no record in the Tribunal’s file of any changed telephone number.

9. The Tribunal noted the communications sent to the applicant inviting the applicant to appear on 17 September 2015, and that no response had been received to that communication, and that the applicant failed to appear.  The Tribunal also noted that SMS reminders had been sent to the applicant on the 10 and 16 September 2015.  It was in those circumstances that the Tribunal decided to proceed to make its decision on the review, without taking any further action to enable the applicant to appear before it.

10. The grounds of the amended application are as follows:

    The Applicant claims that he was denied natural justice and procedural fairness when he did not receive Hearing Invitation letter through a proper, reasonable and accridated way of service ( Post) and again he was not given further date of hearing. He lost the chance the arguments in favour of his claim. The AAT made a jurisdictional error when it adopted only one means of service ( email)

    Particulars : The AAT sent letter to the applicant through email . The applicant through email . The applicant had no priviledge to network service . At the time of filling application he gave his postal address . The AAT never said to the applicant that AAt will only option to serve the Notice of Hearing or any letter from AAT. He was not aware of the hearing date. He knew about case only a letter was posted to his address for the payment of Application fee or hearing fee. The applicant claims that he was denied natural justice when he was not informed again when a letter of Hearing Response was not revceived within seven days. The applicant has a legitimate expectation that the AAT will fully inform about the hearing date.

    1. The Applicant claims that the Tribunal discarded all the considerations and precautions . The AAT made a jurisdictional when without hearing and verification discarded all of the evidence of his claim . It made decision with closed mind .

    Particular : In the decision the AAT found that there were some discrepancies between he gave at the Tribunal hearing and his written claims and the statements he made at the protection interview. at Immigration Detention Centre , which was included in the Departmental file . The applicant did not get chance to explain about the documents he submitted to the Tribunal..

    2. In making decision the Administrative Appeal Tribunal made a jurisdictional error when it failed to apply the real test of persecution and harm according to the Migration Act

    Particulars:

    Without hearing the Tribunal believes that the there is no consistency in presenting his claims. There is no point to compare oral evidence with the Department hearing .. The AAt blindly follows the decision of the Delegate made conclusion that all of the documents submitted by th e applicant is fabricated .

    The Tribunal Member   has made biased opinion when he raised concern over the credibility The Tribunal raised several irrelevant issues to discredit the facts in his decision without any hearing .It made decision on assumption and possibilities.  . Applicant told the facts to the Delegate based on truth . He is a truthfull witness.  .

    He claims that the AAT did not account the applicant’s claim that there is no reasonable protection from the Bangladesh Government which is run by the Awami League ..The police is bribed and influenced by the money. The applicant claims that he left Bangladesh for the fear of his life . The applicant claims that he was denied procedural fairness when he was misunderstood and facts were construed

    4. The Tribunal failed to apply the correct test in relation to the complementary Protection Provision 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 Tribunal failed to consider genuinely the alternative criterion s36(2) (aa) despite the fact the applicant has genuine fear of persecution and he is compelled to go back to his country he will be killed r harassed by his step brother.

    The RRT ignored the relevant consideration related with complementary Protection set out in s 36(s) (aa).

    The harm or the mistreatment feared by the applicant on return is for reason of one or more of five grounds of recognised 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.

11. In relation to ground 1, s.422B identifies that division 4 of the Migration Act 1958 is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with. 

12. On the evidence before this Court the Tribunal complied with its obligation under s.425 and sent a notice of invitation to the applicant to appear, which the applicant under s.494C was taken to have received on the day on which the email was transmitted. The Tribunal turned to consider under s.426A whether to proceed with a decision-making process. In the circumstances of the present case, it was open to the Tribunal to decide to proceed to determine the application and the decision to do so cannot be said to be unreasonable.

13. There was no denial of natural justice or procedural unfairness in the Tribunal proceeding with the application.  The decision of the Tribunal to proceed to determine the matter cannot be said to lack an evident and intelligible justification.  The expectation of the applicant to receive communications by post was not an expectation based on the conduct of the first respondent.  There was no procedural unfairness in the Tribunal communicating with the applicant by two of the three means identified on the application to the Tribunal.

14. The fact that the applicant chose not to open the email sent by the Tribunal to his email address does not give rise to any jurisdictional error by the Tribunal.  Ground 1 of the application fails to make out any jurisdictional error.  Grounds 2, 3 and 4 seek to cavil with the adverse findings of fact made by the Tribunal.  It is clear that the Tribunal took into account the applicant’s claims and in circumstances where the applicant had failed to appear, the adverse findings of the Tribunal were open to the Tribunal and cannot be said to be unreasonable or lack an evident and intelligible justification. 

15. To the extent that the applicant alleges that the Tribunal had a closed mind, the only basis for that appears to be the adverse findings.  The adverse findings of the Tribunal are not conduct by reason of which a fair-minded lay observer might reasonably apprehend that the Tribunal might not bring an independent and impartial mind to the determination of the matter on its merits.  No case of bias is made out and the allegation of a closed mind is without substance.  To the extent it is suggested that the Tribunal failed to apply the correct test, the Tribunal’s reasons reveal identification of the correct legal principles.  The particulars provided to that allegation are no more than an impermissible challenge to the Tribunal’s adverse findings. 

16. The Tribunal considered the applicant’s claim on the ground of complementary protection and the adverse finding by the Tribunal in that regard was open on the material before the Tribunal.  There is no substance in the proposition that the Tribunal failed to apply the correct test in relation to complementary protection.  The Tribunal’s reasons reveal the correct identification of the relevant law and the reasons of the Tribunal are consistent with the correct application of the criteria for complementary protection.  The grounds of the amended application failed to make out any jurisdictional error.

17. From the bar table, the applicant maintained that he expected to receive correspondence by post to his residential address and that he did not understand that he might receive communications by email.  The applicant contends that there is no explanation given to him, either by his solicitor or the Tribunal, that he might receive communications to his email address.  Those are not circumstances that give rise to any jurisdictional error by the Tribunal.  Whilst the applicant did identify some written communications were sent by post, there was no conduct of the first respondent that could be said to give rise to some procedural unfairness to the applicant in sending the invitation to the email address notified on the application for review.

18. The letter dated 6 July 2015 from the Tribunal does identify a mailing address.  However, the applicant maintained that he was illiterate and could not read.  There is no evidence before the Court to support that the applicant in some way relied upon the letter dated 6 July 2015.  Further, the Court notes that the applicant’s explanation in relation to not having received any notification does not sit with his acknowledgment that the email was received but not opened by him.  That is conduct of the applicant that does not give rise to any procedural unfairness by the first respondent.

19. Further, nowhere in the applicant’s affidavits as identified was there any suggestion that his mobile number had changed or that he did not receive the SMS reminders.  I do not accept the assertion from the bar table that the applicant’s phone had changed at the time of the sending of those SMS messages.  Nothing said by the applicant identified any jurisdictional error. 

20. On 1 December 2015 the Court made orders fixing the matter for hearing and providing the applicant with an opportunity to file an amended application, affidavit evidence and submissions.  Pursuant to that order, the applicant did file an amended application and further affidavit evidence.  I accept the submission of the first respondent that the facts in this case are different from the circumstances that led to the decision in AZAFB v Minister for Immigration and Border Protection [2015] FCA 1383. The sending of the SMS messages by the Tribunal to the identified mobile number as well as the fact of confirmation of receipt of the email by the applicant, albeit that the applicant says he did not open the same, are matter that distinguish that case. For these reasons, the amended application is dismissed.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  22 February 2016