CJX16 v Minister for Immigration

[2017] FCCA 3261

FEDERAL CIRCUIT COURT OF AUSTRALIA

CJX16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 3261

Catchwords:
MIGRATION – Administrative Appeals Tribunal – protection visa – whether the Tribunal denied the applicant procedural fairness – s 438 certificate – no jurisdictional error identified – amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 438

Cases cited:

SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235

Applicant: CJX16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2326 of 2016

Judgment of: Judge Street

Hearing date: 20 December 2017

Date of Last Submission: 20 December 2017

Delivered at: Sydney

Delivered on: 20 December 2017

REPRESENTATION

Solicitors for the Applicant: Mr M Jones
Parish Patience Immigration Lawyers

Counsel for the Respondents: Mr G Johnson

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The amended application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $7,206.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2326 of 2016

CJX16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“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.

2. The applicant was granted a UC-456 visa on 3 September 2008 and arrived in Australia on 10 September 2008. The applicant lodged an application for protection on 16 September 2008. That application was refused on 13 December 2008 and affirmed by the Refugee Review Tribunal on 31 March 2011. The applicant sought judicial review, which was unsuccessful at first instance on 14 October 2011. The applicant then sought review in the Full Court of the Federal Court of Australia, which was unsuccessful on 23 February 2012. The applicant lodged a second application for protection on 26 September 2012. On 10 December 2014, the delegate found the applicant failed to meet the criteria for the grant of a protection visa.

The Tribunal’s decision

1. The applicant claimed to fear harm from individuals or groups belonging to the Bangladesh Nationalist Party and Jamaat-e-Islami for reason of his success in business and his position as an officeholder in the Awami League. The Tribunal identified that the second application for protection was on the grounds of complementary protection consistent with the principles in SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235.

Credibility findings

1. The Tribunal set out the applicant’s claims and evidence and the Tribunal identified 12 credibility difficulties, ultimately finding that the inconsistencies and embellishments prevented the Tribunal from being satisfied of the applicant’s substantive claims. Those inconsistencies and embellishments cannot be said to be trivial or insignificant and were open to the Tribunal for the reasons given by the Tribunal. Given the credibility issues and ease with which forged documents were able to be obtained in Bangladesh, the Tribunal gave the supporting documents provided by the applicant no weight other than documents relating to the applicant’s business affairs.

2. The Tribunal did not accept any of the applicant’s claims with the exception of a claim to be involved in a number of commercial enterprises including the construction industry. The Tribunal expressly referred to the applicant’s claim of suffering harm from September 2007 onwards in terms of being threatened and assaulted, his home being visited by those who wished to harm him, shots being fired at him, causing the applicant to go into hiding for six to eight months before leaving for Australia. The Tribunal observed this does not seem consistent with the fact that the applicant left Bangladesh on visas that he had obtained to travel to Singapore and Malaysia in December 2007 and April 2008 respectively. The Tribunal noted the applicant waited until September 2008 to travel to Australia.

3. The Tribunal found unconvincing the applicant’s claims that he had been expelled from the Awami League and did not accept this. The Tribunal was not satisfied the applicant had had any involvement in the Awami League including as an officeholder. The Tribunal was not satisfied the applicant had suffered significant harm as a result of political involvement nor that there is any past targeting of him as a result of his political involvement that would lead to a real risk of future significant harm. The Tribunal was not satisfied there is any basis on which the applicant would be perceived to have a political allegiance such as to lead to a real risk of significant harm. The Tribunal was not satisfied the applicant would be politically involved on return to Bangladesh.

4. The Tribunal was not satisfied the applicant has been extorted for money either before or after travelling to South Korea or faced difficulties due to being perceived to have money. The Tribunal was not satisfied the applicant travelled to South Korea to flee harm as claimed. The Tribunal was not satisfied that the applicant went into hiding six months before he left Australia as claimed. The Tribunal was not satisfied the applicant’s employees were attacked and threatened. The Tribunal was not satisfied that false cases had been brought against the applicant.

5. The Tribunal was not satisfied that there is a real risk of the applicant facing significant harm for any of the reasons claimed. The Tribunal did not accept that criminals or terrorists targeted the applicant’s business because they held a grudge against him or because the aim was to kill him. The Tribunal found the applicant did have some involvement in politics including becoming the organising secretary of his local branch. The Tribunal found there was not a real chance of the applicant being persecuted for his political opinion if he were to return to Bangladesh.

6. The Tribunal went on to consider, “what if I’m wrong?” in respect of its adverse findings, whether or not it was required to do so. The Tribunal observed, to the extent there would be a real risk of the applicant facing significant harm from individuals or groups on his return to Bangladesh, the risk of harm would be localised to the applicant’s suburb in Dhaka and adjacent areas.

7. The Tribunal found that it would be reasonable for the applicant to relocate. The Tribunal found there were not substantial grounds for believing as a necessary and foreseeable consequence of the applicant being removed from Australia to Bangladesh there is a real risk the applicant will suffer significant harm for any of the reasons claimed or for any other reason. The Tribunal found that the applicant is not a person in respect of whom Australia has protection obligations under s 36(2)(aa) and affirmed the decision under review.

Proceedings before this Court

Ground in the application

1. The ground in the amended application is as follows:

   1. The Tribunal denied the Applicant procedural fairness.

   Particulars

   (a) The Tribunal had before it a document (CB 94) which purported to be a certificate made under s486 of the Act. Procedural fairness required the Tribunal to do the following, which it did not do:

   (i) disclose its existence to the Applicant;

   (ii) give the Applicant the opportunity to make submissions on the validity of the certificate;

   (iii) disclose to what extent, if any, the Tribunal was going to take into account information covered by the document and as a part thereof at least whether the information was favourable, unfavourable or neutral to the Applicant;

   (iv) give the Applicant at least an opportunity to seek a favourable exercise of discretion under s 438(3)(b).

2. It is common ground that there is a certificate issued under s 438 and that the Tribunal was given a notification on 20 January 2009 in respect of documents described in folios containing “information relating to internal working documents, which is considered sensitive”. Those documents appeared in evidence and they related to the applicant’s original visa application considered on 24 August 2008. There is a reference in that regard to business documents provided by the applicant and also identification of other additional documents provided relating to business activity and the applicant identifying that the company imports medical equipment from all over the world and that he wants to travel to see medical equipment and to sign a trade agreement. There is an identification of the applicant’s employer and that he travelled previously to Malaysia and Singapore.

3. Mr Jones, solicitor for the applicant, argued that the material relating to the applicant’s business activities was relevant because the applicant had advanced a claim that he went into hiding and Mr Jones submitted that in those circumstances the material the subject of the certificate could be said to be adverse or to negate or undermine the applicant’s claims.

4. Mr Jones also took the Court to the transcript in relation to which the applicant raised the fact of going into hiding as well as drawing to the Court’s attention the thorough approach by the Tribunal to its task and its reasons and the reference in the transcript at the start of the hearing to the effect that the Tribunal member had read the files, listened to the recordings of the interview and would rely on the information in the files as well as what was said at the hearing and relevant material from external sources.

5. Mr Jones argued that in these circumstances it was one where he contended it could not be said that the Tribunal had not taken into account the material the subject of the certificate and therefore the applicant was denied procedural fairness in the conduct of the review. Mr Jones submitted that the applicant was denied the opportunity of addressing what was said to be the adverse material.

6. No part of the Tribunal’s reasoning identifies reference to the information identified in the folios the subject of the certificate but a part of the Tribunal’s reasoning takes issue with the applicant having had a business. The material on its face did not undermine, negate and was not adverse to the applicant’s claims. The material cannot be said to be relevant to the issues under the review. Further, the Court finds, having examined the material, that it was not credible, relevant and significant information in respect of the review. In these circumstances there was no practical injustice by reason of the non-disclosure of the certificate and the documents the subject of the certificate.

7. Further, in these circumstances there was no denial of procedural fairness in the process of the review where the documents not disclosed were not credible, relevant and significant. The Court does not accept the submission that the Tribunal acted upon the documents the subject of the certificate on the face of the Tribunal’s reasons which was, indeed, thorough and comprehensive. The Court finds that the Tribunal did not act on the material the subject of the certificate. Accordingly, no jurisdictional error as alleged in the amended application is made out.

Conclusion

1. Accordingly the amended application is dismissed.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:

Date:  22 January 2018