CHY16 v Minister for Immigration
[2017] FCCA 1023
•17 May 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CHY16 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 1023 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – the application was made on an approved form and is not invalid – the Tribunal gave detailed reasons explaining the adverse credibility findings – the adverse credibility findings were open to the Tribunal – no jurisdictional error identified – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss. 36, 476 |
| Cases cited: BBJ16 v Minister for Immigration and Anor [2016] FCCA 2521 CFA16 v Minister for Immigration and Anor [2017] FCCA 278 SZUGL v Minister for Immigration [2017] FCCA 419 SZUTU v Minister for Immigration [2017] FCCA 593 |
| Applicant: | CHY16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2273 of 2016 |
| Judgment of: | Judge Street |
| Hearing date: | 17 May 2017 |
| Date of Last Submission: | 17 May 2017 |
| Delivered at: | Sydney |
| Delivered on: | 17 May 2017 |
REPRESENTATION
| The Applicant appeared in person. |
| Solicitors for the Respondents: | Mr A Markus Australian Government Solicitor |
ORDERS
The application is dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $3,300.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2273 of 2016
| CHY16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for a constitutional writ within the Court’s jurisdiction under section 476 of the Migration Act in respect of a decision of the Tribunal made on 1 August 2016 affirming a decision of the delegate not to grant the applicant a protection visa. The applicant was found to be a citizen of Bangladesh, and his claims were assessed against that country.
The applicant departed Bangladesh illegally by boat in January 2013 bound for Thailand. The applicant resided illegally in Thailand for a period of time and then travelled to Malaysia. The applicant resided illegally in Malaysia and then departed for Indonesia. The applicant then resided illegally in Indonesia for a short period and then caught a boat bound for Australia in March of 2013. That boat was intercepted by the Australian authorities on 28 March 2013. The applicant lodged an application for protection on 19 June 2013 which was deemed valid on 21 June 2013.
The delegate’s decision
The applicant claimed to fear harm because he was involved in the Jamaat-e-Islami since he left school and as a particular man who was the Secretary of the local branch of the Awami League, had forcibly taken his family’s land. The applicant claimed as a result of the confrontation with the particular main, that his brother was beaten and on release from hospital his brother disappeared. The applicant claimed to fear being severely beaten or killed by the particular man and other supporters of the Awami League if he returned to Bangladesh. The applicant claimed to fear harm based on his actual or imputed political opinion of being opposed to the Awami League and the land dispute with the particular man.
The delegate made adverse credibility findings in relation to the applicant. The delegate found based on the applicant’s responses at the interview and inconsistencies between his written statements and statements at his protection interview, the delegate was not satisfied that the applicant was involved in a land dispute with the particular man or that the applicant’s brother had disappeared as a result of the land dispute. The delegate rejected the applicant’s claims in their entirety. The delegate found that the applicant failed to meet the criteria under s.36(2)(a) and s.36(2)(aa) of the Act.
The Tribunal’s decision
On 5 January 2015, the applicant applied for review. On 20 June 2016, as a result of a request for a postponement, the applicant was sent a letter inviting the applicant to appear before the Tribunal on 19 July 2016. The applicant appeared on that date to give evidence and present arguments. The applicant was also assisted by his migration representative on that occasion. The Tribunal identified the applicant’s background and set out the relevant law. The Tribunal identified the applicant’s claims and evidence.
Consideration of the applicant’s claims and credibility
The Tribunal did not accept that the applicant was a credible witness and did not accept that either the applicant or his family suffered the harm or difficulties in his country that he claims for the reasons that he claims, which would lead him to leave Bangladesh and why he fears return. The Tribunal did not accept that either the applicant, his brother, his cousin or his father were involved in Jamaat-e-Islami in the manner claimed or that either he or any of his family members were targeted by a particular man and his family and followers from the Awami League for the reasons he claims. The Tribunal did not accept as true that the applicant’s family land was ever illegally taken by a particular man, that he or his brother or mother were beaten or his brother has disappeared as a result of this dispute. The Tribunal found the applicant’s testimony to be inconsistent as to these claims and was of the view that the applicant had fabricated claims and concocted evidence to achieve an immigration outcome.
The Tribunal made express reference, having considered the document provided from Jamaat-e-Islami as to the applicant’s alleged membership, but decided to give the document no weight in light of the problem with the applicant’s evidence. The Tribunal did not accept the applicant is a credible witness as to the applicant’s family land ever having been taken by a particular man or that the particular man has illegally built a house on their land for political reasons and that there has been a long-running dispute between the particular and the applicant’s family. The Tribunal identified inconsistencies in relation to the applicant’s evidence and found that he was not a credible witness. A detailed explanation was provided by the Tribunal in regard to those adverse credibility findings.
Summary of the applicant’s credibility
For the reasons given by the Tribunal and having considered the applicant’s claims and evidence cumulatively, the Tribunal found the applicant not to be credible or a truthful or reliable witness. The Tribunal found that the applicant had fabricated the claims and concocted evidence to achieve an immigration outcome. The Tribunal found, on the basis of the cumulative credibility concerns, the Tribunal did not accept that the applicant was a credible witness and could not be satisfied on the evidence before it that the applicant is a truthful witness as to his claims as to why he departed Bangladesh and why he fears return.
The Tribunal did not accept that the applicant or his family was ever threatened directly or indirectly or faced any of the difficulties, including a land dispute at the hands of the particular man, his children, his family, his associates or that either he or his brother or his cousin or his father or any family member were ever a supporter, member, held high office, such as General Secretary with Jamaat-e-Islami, were involved with Jamaat-e-Islami at all or voted for the Jamaat-e-Islami or were ever perceived as supporters of the Jamaat-e-Islami or were or are perceived as opposed to the Awami League.
The Tribunal did not accept as true the applicant’s father was General Secretary of a particular branch of Jamaat-e-Islami, that his brother or cousin were involved at all in any position, that the applicant joined Jamaat-e-Islami or his immediate and extended family have always been members of Jamaat-e-Islami. The Tribunal did not accept as true that the applicant joined Jamaat-e-Islami in 2003. The Tribunal did not accept as true that the applicant supported the party and his cousin and family by attending meetings, putting up posters and banners and by making announcements about upcoming meetings, attending protests or processions in a particulars area, going to meetings or promoting the party or the meetings in any way. The Tribunal did not accept as true the applicant’s alleged involvement increased during the 2008 elections and that he promoted the local Jamaat-e-Islami candidate in these elections in any manner whatsoever. The Tribunal rejected in its entirety that the applicant was ever involved in the past in Jamaat-e-Islami or has continued this involvement in Australia by following it on the internet.
The Tribunal did not accept that there was ever a dispute between a particular man and the applicant’s father and family dating back before the death of his father in 1990 and that his father’s death was suspicious because of this dispute, or that a particular man with his family, associates and members of the Awami League illegally took land from them by force or otherwise in the mid-1990s or at any time in 2012, including December 2012, whether gradually or at once.
The Tribunal did not accept as true that the particular man came with his sons, other male representatives and Awami League members at any time and within hours that they had built a house on their residential land and claimed part of their farming land and animals and that his brother confronted the particular man and said that the family were owners of the land and that the particular man falsely claimed that his father borrowed money from him which his father did not repay and that he was therefore entitled to their land as compensation.
The Tribunal did not accept as true that his brother asked for proof of this and that the particular man and his associates attacked his brother and as a result his brother suffered severe head injuries. The Tribunal did not accept that the particular man or his associates locked his mother in the house who escaped and was beaten, and that the applicant immediately returned home on hearing of the attack and was attacked as well and had an alteration with the particular man and his associates and was punched, kicked and hit with a stick there or anywhere else.
The Tribunal did not accept as true that the applicant was able to run away but that his brother was taken to hospital, where he stayed for about a week and has since disappeared. The Tribunal did not accept as true that the applicant’s mother went to a local police station and lodged a complaint and that they did nothing as she did not pay a bribe, and that the police came to their home to investigate and said they would take action and make a report, but after making a report they took no action.
The Tribunal did not accept as true that the applicant and his family were attacked as they were associated and supported Jamaat-e-Islami and the particular man was the secretary of the local Awami League or because of a past dispute and enmity between his father or as his father owed them money or there was a loan or as they were exploiting the vulnerability of the applicant’s mother following her husband’s death.
The Tribunal did not accept as true that as the police did not take any action he no longer felt safe in his family home and he went to live with his elder sister in hiding and fled Bangladesh in fear.
The Tribunal did not accept that at any time his mother was threatened by the particular man and due to the threats in or around April 2013 or at any time she was forced to move into a rental property or live anywhere else, as she no longer felt secure at home.
The Tribunal did not accept as true that the particular man and his relatives remain in possession of their land and live in the house they built and that the family systematically lost any of their land which had been effectively taken without compensation and that the family has as a result lost their capacity to provide for themselves.
The Tribunal did not accept as true that the applicant fears being severely beaten or killed, harmed, mistreated and being murdered by police, sponsored by the state or losing his economic capacity to exist by the particular man or other supporters of the Awami League, the government and the authorities if he returns to Bangladesh based on his actual or imputed political opinion of being opposed to the Awami League, his and his family’s support of Jamaat-e-Islami, his mother’s vulnerable situation and the land dispute with the particular man or enmity between his father and the particular man. The Tribunal rejected the applicant’s claims in their entirety.
The Tribunal did not accept as true that at the time the applicant departed Bangladesh, he held concerns for his safety or feared being harmed for any of the reasons he claimed.
Consideration of refugee convention criteria
The Tribunal held that it was not satisfied on the basis of the evidence before it that there is a real risk that the applicant will suffer significant harm on his return to Bangladesh, as the security situation in Bangladesh is deteriorating and there state-sponsored murder or murder acquiesced by the state.
The Tribunal considered in combination the applicant’s claims and did not accept that there is a real chance the applicant would face serious harm for the reasons claimed if he returns to Bangladesh in the reasonably foreseeable future. The Tribunal took into account the applicant’s evidence and claims and his current personal and family circumstances and profile in Bangladesh. The Tribunal was not satisfied the applicant faced a real chance of serious harm for any of the reasons claimed or arising on the evidence, either singularly or cumulatively, for a Convention reason in the reasonably foreseeable future. The Tribunal was not satisfied the applicant has a well-founded fear of persecution in Bangladesh for a Convention reason in the reasonably foreseeable future. The Tribunal found that it was not satisfied the applicant is a refugee under s.36(2)(a) of the Act.
Consideration of complementary protection criteria
The Tribunal did not accept that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Bangladesh there is a real risk that he will suffer significant harm. The Tribunal found that the applicant did not meet the criteria as defined in s.36(2A) of the Act and that the applicant did not meet the criteria under s.36(2)(aa) of the Act and affirmed the decision of the delegate.
Before this Court
On 27 November 2016 a registrar of 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. No amended application was filed but affidavit evidence was filed on behalf of the applicant in support of the grounds identified in the application.
The grounds in the application are as follows:-
1. The decision of the Tribunal is challenged by virtue of the alleged invalidity of the protection visa decision made on 9'h December 2014.
2. The Tribunal has the power to rectify administrative error that may contaminate a primary decision. However, such power does not encompass the capacity to usurp prescribed mandatory legislative procedures which must be implemented so as to effect lawful decision making (in this instance with respect to the validity question of the protection visa application filed). By determining the question of validity this has a direct bearing on the issue as to the validity of the Section 48 B prohibition (Migration Act) relating to “repeat protection visa applications"
3. The Delegate of the First Respondent made a jurisdictional error by failing to exercise jurisdiction.
a. At the time of the earlier application, the version of Form 866 used by the Applicant had been approved by the Minister under reg 1.18(1) of the Migration Regulations 1994 (Cth) (Regulations) after item 1401 of Schedule I to the Regulations took effect on 20 October 1999;
b. Item 1401 of Schedule to the Regulations, by virtue of Section 49A(1)(b) of the Acts Interpretation Act 1901 (Cth) as at 20 October 1999 (Interpretation Act) or Section 14(1)(b) of the Legislation Act 2003 (Cth) (Legislation Act), was prohibited from incorporating Form 866 as it existed after item 1401 took effect. Rather, by virtue of those provisions and notwithstanding Section 14(4) of the Legislation Act and Section 504(2) of the Migration Act 1958 (Cth) (Act), item 1401 was restricted to incorporating Form 866 to the extent it existed when item 1401 took effect on 20 October 1999;
c. As a result, by virtue of Section 46 of the Act when read with ref 2.07 of the Regulations and notwithstanding Section 25C of the Interpretation Act when read with Section 13(1) of the Legislation Act, the earlier application was not invalid and the later application was not barred by Section 48A of the Act.
At the commencement of the hearing, the Court explained to the applicant that this was a final hearing to determine whether the Tribunal’s decision was affected by relevant legal error. The Court explained that the relevant legal error had to be either an excess of statutory power or denial of procedural fairness to the applicant. The Court explained that in summary this meant the Court was considering whether the Tribunal’s decision was unlawful or whether the Tribunal’s decision was unfair. The Court explained that if the Court was satisfied the Tribunal’s decision was unlawful or unfair it would set aside the decision and send it back for further hearing. The Court explained that if the Court was not satisfied the Tribunal’s decision was unlawful or unfair it would dismiss the applicant’s application.
The Court explained that it would have identified the evidence, then hear submissions from the applicant, then hear submissions from the solicitor for the first respondent and then hear submissions from the applicant in reply. The applicant confirmed that he understood the nature of the hearing as explained by the Court.
Consideration
Applicant’s submissions from the bar table
From the bar table, the applicant maintained that he would face problems if he went back to Bangladesh and asserted that he could not understand why there had been adverse credibility findings made against him and why he had not been believed. The applicant also expressed concern about his safety if he was returned. Both the delegate and the Tribunal made adverse credibility findings in relation to the applicant. The Tribunal gave detailed reasons explaining the adverse credibility findings. No submission was advanced that undermined the logic or reasonableness of those adverse credibility findings. The adverse credibility findings were open to the Tribunal and cannot be said to lack an evident and intelligible justification. Nothing said by the applicant from the bar table identified any jurisdictional error.
The Court is also satisfied on the material before the Court that the Tribunal complied with its statutory obligations and that the applicant had a genuine hearing on the merits. On the material before the Court, there is nothing to establish that the Tribunal failed to conduct the review in accordance with the requirements of procedural fairness.
Grounds 1 to 3
In relation ground 1, I find that the application for protection in the present case was made on an approved form. The issue raised by ground 1 has been the subject of adverse determination in this Court in BBJ16 v Minister for Immigration and Anor [2016] FCCA 2521, CFA16 v Minister for Immigration and Anor [2017] FCCA 278, SZUGL v Minister for Immigration [2017] FCCA 419 and SZUTU v Minister for Immigration [2017] FCCA 593.
For the reasons given in those decisions, I am not satisfied that the application was invalid and for the reasons given in those decisions I hold that there was no jurisdictional error as alleged in grounds 1, 2 and 3 of the application. No jurisdictional error is made out in the application.
Conclusion
The application is dismissed.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Street
Date: 8 June 2017
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