CLA15 v Minister for Immigration

Case •

[2016] FCCA 2252

•

2 September 2016

FEDERAL CIRCUIT COURT OF AUSTRALIA

CLA15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2252
Catchwords:
MIGRATION – Application for protection (Class XA) visa – review of decision of Refuge Review Tribunal – application for extension of time – whether the Tribunal was incorrect in finding the applicant was not a Christian – whether the Tribunal erred in failing to make findings about the relevant facts – denial of procedural fairness – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2), 422, 424, 477
Cases cited:
Minister for Immigration & Multicultural Affairs v Rajalingam (1999) 93 FCR 220; [1999] FCA 719
MZABP v Minister for Immigration & Border Protection [2015] FCA 1391
Applicant: CLA15
First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION
Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL
File Number: SYG 3145 of 2015
Judgment of: Judge Smith
Hearing date: 25 May 2016 & 5 July 2016
Date of Last Submission: 5 July 2016
Delivered at: Sydney
Delivered on: 2 September 2016

REPRESENTATION

The applicant appeared in person.
Solicitors for the Respondents: Mr A. Keevers, Sparke Helmore

ORDERS

  1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3145 of 2015

CLA15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

  1. The applicant is a citizen of Bangladesh who arrived in Australia on 27 June 2006 and applied for a protection visa on 10 December 2013. That application was refused by a delegate of the Minister and the applicant applied to the Refugee Review Tribunal[1] for review of that decision. On 23 April 2015 the Tribunal made a decision to affirm the delegate’s decision. The applicant seeks judicial review of the Tribunal’s decision.

    [1] As it was then known. On 1 July 2015 it became the Administrative Appeals Tribunal: Tribunals Amalgamation Act 2015 (Cth).

  2. An application for judicial review of the Tribunal’s decision must be made within 35 days of the date of that decision: s.477(1) Migration Act 1958 (Cth). The application in this case was made on 18 November 2015 (175 days in excess of the time limit), however the Court has the power to extend the period within which an application may be made if, amongst other things, it is satisfied that it is in the interests of the administration of justice to make such an order: s.477(2).

  3. The matter was listed for hearing of the application for extension of time on 25 May 2016. On that day, I made an order extending the period under s.477(2) and set the matter down for a final hearing on 5 July 2016. In essence, I considered that it was reasonably arguable that the Tribunal fell into jurisdictional error when it concluded, at [28] of its reasons, that it was “unable to establish the relevant facts”. I considered that that fact outweighed the other factors which weighed against an extension of time including the significant delay in bringing the proceedings.

  4. Before considering that argument and the other matters raised by the applicant in the proceedings, it is necessary to outline the background facts and the Tribunal’s reasons for its decision.

Background facts

  1. The applicant arrived in Australia on 27 June 2006 on a subclass TU, 573 student visa which ceased on 30 July 2007. He proceeded to obtain a number of further student visas, the last of which ceased on 10 May 2010. On 9 October 2009, the applicant obtained a Tourist (subclass 676) visa which was valid until 10 May 2010. The applicant departed Australia on 18 October 2009 and returned on 6 January 2010. From 5 October 2010 until 5 April 2013 he held a Temporary Graduate (subclass 485) visa. On 10 December 2013 the applicant lodged a protection visa application. 

  2. The claims made by the applicant in support of the protection visa application were:

    a)the applicant was involved in student politics from 1998 to 2004 and was one of the leaders of the anti-rapist movement on campus which was not aligned to any political party;

    b)he had two colleagues in that movement, one of which belonged to the Bangladesh Nationalist Party (BNP) and the other to the Awami League;

    c)after his graduation, the applicant started living with the BNP members although he was not a member of the party and people around his neighbourhood assumed that he was a member of the BNP;

    d)the applicant claimed that if he returned to Bangladesh his political enemies would harm him because he has been living in Australia for the past eight years; and

    e)he further claimed that he had converted to Christianity and would be persecuted by his family for that reason.

  3. The applicant attended an interview with a delegate of the Minister on 2 June 2014 and reiterated his claims. On 27 June 2014 the delegate made a decision to refuse to grant the applicant a protection visa. The delegate did not accept that the applicant faced harm on account of his political opinion if he were to return to Bangladesh. The delegate did not accept that the applicant had converted to Christianity or that he would face any Convention related persecution in Bangladesh on account of his religion.

  4. The applicant applied to the Tribunal for review of the delegate’s decision. On 13 March 2015 the Tribunal wrote to the applicant inviting him to attend a hearing to be conducted on 22 April 2015. The Tribunal included in its letter a document entitled “Response to hearing invitation”. The applicant returned that document to the Tribunal. In response to the question “Will you take part in the Tribunal hearing scheduled for 22 April 2015?” The applicant ticked the “no” box and wrote “subject to ministerial intervention”. That response seemed to have been sent to the Tribunal on 18 March 2015 together with a document entitled “Second request to the Honourable minister to intervene in my visa application”.

  5. On 19 March 2015 an officer of the Tribunal telephoned the applicant to clarify his submission which was received on 18 March 2015. A file note of that conversation records that, although the applicant’s submissions stated that he did not want a hearing, that was conditional on a response he was waiting for from the Minister in respect of his application for ministerial intervention. The officer then wrote:

    I confirmed I would advise the Tribunal member that he wished the hearing to go ahead unless he informed us otherwise, although he believed the Minister or DIBP would contact the Tribunal directly in response to his letter.

    …

  6. On 21 April 2015 the applicant sent an email to the Tribunal. In that email the applicant referred to an application to the Minister “delivered on 17th of April” to which, the applicant said, he had not received a response and indicated that he would “contact RRT as soon as I receive an advice from minister”. The email also stated that the applicant believed that the “copy of my application to the minister evident all possible reasons to seek help from your authority”, referred to the delegate’s decision and stated that it “is not reviewable given the fact I’m unable provide anymore information or documents.” Overall, the concern expressed in the email is that the applicant had been unable to obtain permanent residency by means of an employer nominated visa even though he had been working in Australia for 9 years. That concern is emphasised in the document sent to the Tribunal on 18 March 2015.

  7. After receiving this email, an officer of the Tribunal called the applicant to confirm that the Tribunal would not delay its decision. The applicant confirmed that he was not going to the hearing on the following day and asked that the Tribunal make a recommendation in its decision regarding ministerial intervention.

  8. The applicant, as foreshadowed, did not attend the hearing on 22 April 2015 and the Tribunal made its decision to affirm the delegate’s decision on 23 April 2015.

Tribunal’s decision

  1. In its statement of reasons the Tribunal first recounted the history of the applicant’s visa application including his failure to appear at the hearing on 22 April 2015. It then set out a summary of the applicant’s claims and the evidence given by the applicant in support of them, including the evidence given by the applicant at the interview with the delegate of the Minister. Next, the Tribunal set out its consideration of the applicant’s claims.

  2. The Tribunal noted at [25], that as the applicant had not chosen to give oral evidence to the Tribunal it had “insufficient information from [the applicant] to establish the relevant facts”.  The Tribunal continued:

    [26]For example, with regard to his claims to fear being harmed in Bangladesh because of his past support for the BNP, it is unclear from the information he has provided whether he continues to support the BNP and, if so, how he might wish to express that support if he returns to Bangladesh. The Tribunal has no evidence that merely being a BNP supporter gives rise to being harmed in any way in Bangladesh. I also note that he chose to return to Bangladesh in 2009 and to remain there for three months, during which period he does not claim to have been threatened with any harm because of his support for the BNP.

    [27]As to his initial claim to have converted from Islam to Christianity, according to his later evidence, which I accept, he has not been baptised. There is no evidence that he has ever been a practising Christian, and his own evidence to the Department was that he had not gone to a church for several years. His evidence seems to indicate that he remains nominally a Moslem, albeit a non-practising one, and it is this which has angered his religious family. Without the opportunity to question him about this, it is unclear what his family’s current intentions are towards him. Without the opportunity to discuss this issue with him it is also unclear why, if he fears his family, it would not be reasonable for him to relocate somewhere else in Bangladesh.

    [28]For these reasons the Tribunal is unable to establish the relevant facts.

    [29]The Tribunal is not satisfied, on the evidence before it, that the applicant has a well-founded fear of persecution for a Convention reason. Nor is the Tribunal satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he will suffer significant harm.

  3. The Tribunal then referred to the applicant’s email dated 21 April 2015 and noted that it was outside the Tribunal’s jurisdiction to explore the veracity of assertions concerning his visa application based on skill and residency status. The Tribunal however, considered the ministerial guidelines relating to discretionary power set out in PAM3 and stated that it would refer the matter to the Department.

  4. The Tribunal then concluded that it was not satisfied that the applicant satisfied the criterion set out in either sub-ss.36(2)(a) or (aa) and so affirmed the decision under review.

Consideration

  1. There are two grounds in the application for review (without correction):

    1.S36 migration act1958.

    2.s.422B(1) and s.424 of MA 1958

    (Emphasis in original)

  2. These unadorned references to provisions in the Act do nothing to expose any jurisdictional error in the Tribunal’s decision and I leave them to one side.

  3. At the final hearing of this matter the applicant stated that, given the current situation in Bangladesh, he faced a problem as a converted Christian and argued that the Tribunal was mistaken to find that the applicant was not a Christian. These matters go to the merits of the Tribunal’s decision. It may well be that the applicant is a Christian and does face a well-founded fear of persecution in Bangladesh for that reason; however, it is not part of this Court’s jurisdiction. This Court is limited to determining whether or not the Tribunal’s decision is affected by jurisdictional error. The question of whether the applicant is, or is not a Christian, is irrelevant to that task.

  4. As I have noted, when considering the interests of the administration of justice in connection with the operation of s.477(2) of the Act, the issue which concerned me at a reasonably impressionistic level (see MZABP v Minister for Immigration & Border Protection [2015] FCA 1391 at [62]) was the failure by the Tribunal to make findings at all about the “relevant facts” and, potentially, whether it ought to have proceeded on the basis that the applicant’s claims were in fact true.

  5. On closer examination of the Tribunal’s reasons, as well as the relevant authorities, I have come to the view that there was no error in the Tribunal’s approach.

  6. In Minister for Immigration & Multicultural Affairs v Rajalingam (1999) 93 FCR 220; [1999] FCA 719 (“Rajalingam”), Sackville J undertook a detailed analysis of the correct approach to fact-finding by the Tribunal when determining whether it was satisfied that an applicant satisfied the refugee criterion in s.36(2) (as it then was) of the Act. It is unnecessary to rehearse that analysis here. His Honour concluded at [60], that there were circumstances in which the Tribunal “must take into account the possibility that alleged past events occurred even though it finds that those events probably did not occur” because the Tribunal could not foreclose reasonable speculation about the chances of a hypothetical future event occurring. His Honour stated at [67]:

    …

    Only if a fair reading of the reasons allows the conclusion that the RRT had a real doubt that its findings on material questions of fact were correct, might error be revealed by the RRT’s failure to take account of the possibility that the alleged events might have occurred (or the possibility that an event said not to have occurred did not in fact occur). If the fair reading allows of such a conclusion, the failure to consider the possibilities might demonstrate that the RRT had not undertaken the required speculation about the chances of future persecution.

  7. North J agreed with Sackville J’s reasoning. Kenny J agreed with the orders proposed by Sackville J but gave separate reasons. Critically, her Honour said, at [140]:

    There is, however, nothing in the judgments of the majority in Guo or Wu Shan Liang to require the RRT to address the specific question “What if I am wrong?” after it has made findings of fact and in the course of determining whether it is satisfied that the applicant has a well-founded fear of persecution. … In deciding whether it has a relevant satisfaction for grant of a protection visa, the Tribunal is required to bear in mind the totality of the case. That, as we have seen, includes any relevant uncertainty that it entertains as to whether claimed events in the applicant’s past may ground a fear of persecution for a Convention reason. In that respect, the Tribunal is required to do no more than to satisfy itself in accordance with commonsense and the ordinary experience of mankind.

  8. In my view, the principles explained by the Full Court in Rajalingam have no application to the facts of this case. Importantly, the Tribunal says that it had insufficient information to establish the relevant facts. It did not say that it could not establish any facts. Thus, [26] of the Tribunal’s reasons disclose that the Tribunal had sufficient evidence to establish whether or not it accepted that the applicant had supported the BNP in the past. However, what it considered relevant was not what had occurred in the past because it also accepted information to the effect that “merely being a BNP supporter” did not give rise to being harmed in any way in Bangladesh. Rather, what was important was what might occur in the future and in particular, whether the applicant is still a supporter of the BNP and might in the future wish to express that support if he were to return to Bangladesh. That was one of the relevant facts which the Tribunal was unable to establish because the applicant had not attended the hearing and so it was unable to ask the question which might give it the information it required. Critically, this passage reveals that the Tribunal was well aware that its task involved speculation about the future.

  9. The same analysis is applicable to [27] of the Tribunal’s reasons in which the Tribunal considered the applicant’s claim to have converted to Christianity. Here, the Tribunal accepted that the applicant stated that he had not been baptised. The lack of evidence on this subject left the Tribunal wondering whether he had ever been a practising Christian, particularly in light of the applicant’s own evidence to the Department “that he had not gone to a church for several years”. The “relevant facts” then, concerned the current intentions of the applicant’s family towards him as well as why it might not be reasonably practicable for the applicant to relocate in Bangladesh.

  10. For those reasons, I conclude that the Tribunal did not fail to engage in the task required of it; rather, there were several critical facts which were not addressed in the evidence which meant that, at the time of its decision, the Tribunal could not be satisfied that the criteria for the grant of a protection visa were satisfied by the applicant.

  11. There is no jurisdictional error in the tribunal’s decision. The application must be dismissed

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Smith

Date: 2 September 2016


Actions
Download as PDF Download as Word Document