CNT16 v Minister for Immigration

[2017] FCCA 992

FEDERAL CIRCUIT COURT OF AUSTRALIA

CNT16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 992

Catchwords:

MIGRATION – Administrative Appeals Tribunal – application for a protection visa – no substance in the assertion that the Tribunal acted without jurisdiction or in excess of jurisdiction – the adverse credibility findings made were open to the Tribunal – Tribunal complied with its statutory obligations – Tribunal gave rational and cogent reasons for the adverse credibility findings – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 424AA, 476

Applicant: CNT16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2438 of 2016

Judgment of: Judge Street

Hearing date: 15 May 2017

Date of Last Submission: 15 May 2017

Delivered at: Sydney

Delivered on: 15 May 2017

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents: Mr R White
Mills Oakley Lawyers

ORDERS

1. The application is dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the amount of $5,200.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2438 of 2016

CNT16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Act”), for a Constitutional writ in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 12 August 2016 affirming a decision of the delegate not to grant the applicant a protection visa.

2. The applicant was found to be a citizen of Bangladesh and his claims were assessed against that country.  The applicant arrived in Australia by boat on 4 December 2012 and applied for protection on 18 June 2013. 

The delegate’s decision

1. The applicant claimed to be seeking protection because he fears he will be killed by members of the Awami League and members of the BNP because of his political activity in support of the BNP and because he wanted to leave the BNP.  The applicant claimed he joined the BNP as a supporter in 2012 and his older brother was also a supporter. The applicant claimed once he got involved in politics, it was impossible to leave and that on one occasion when he left the party, BNP supporters repeatedly bullied him to return.

2. The applicant claimed in January 2012, he became actively involved in the BNP and attended BNP party meetings in his village and surrounding villages, and listened to political talks and discussions. The applicant said his brother was too busy with work to attend the meetings. The applicant claimed that he was known as a BNP supporter in his area and on one occasion was beaten by Awami League supporters. The applicant claimed BNP supporters were at risk of persecution because the Awami League was in power. The applicant claimed that he stopped going to BNP meetings and received a letter from an unknown person saying he would be killed.  The applicant was unable to obtain help from a high-level BNP supporter or the Chairman of his village. 

3. On 20 September 2012, the applicant’s friend who was also a supporter of the BNP was killed. The applicant was terrified and on the advice of his father, he left home and went into hiding at his sister’s house.  The applicant alleged that his father made arrangements for him to leave Bangladesh. The applicant claimed that the Bangladesh authorities were corrupt and would not protect him, that he could not relocate in Bangladesh as he would not have family support and that the Awami League and the BNP supporters would target him wherever he goes. 

4. On 12 December 2014, the delegate refused the applicant’s application for a protection visa and found that the applicant did not meet the criteria under the Act.

The Tribunal’s decision

1. On 17 December 2014, the applicant applied for review to the tribunal.  By letter dated 29 February 2016, the applicant was invited to attend a hearing on 5 May 2016. The applicant attended on that date, together with having his legal representative attend by telephone. Submissions were provided on behalf of the applicant prior to the hearing date. 

2. The Tribunal identified the applicant’s background and correctly identified the relevant law. The Tribunal summarised the applicant’s claims and evidence. The Tribunal made adverse credibility findings in relation to the applicant’s evidence.  The Tribunal found the applicant’s evidence to be vague, implausible, contradictory and unconvincing. The Tribunal noted that the applicant made new claims throughout the process. The Tribunal found that there were significant inconsistencies in the applicant’s oral evidence as well as inconsistencies with his previous evidence. 

3. The Tribunal found the applicant was unable to provide a coherent account of his experiences in Bangladesh. The Tribunal identified its concerns in relation to credibility and the veracity of the applicant’s claims during the oral hearing.

4. The Tribunal identified concerns in relation to the applicant’s failure to raise particular incidents at the time of his interview on 26 December 2012.  The Tribunal did not accept the applicant’s explanation as to why he did not disclose that he was a supporter of Jamaat-e-Islami in his visa application. The Tribunal did not accept that the applicant was fearful that the Australian Government would kill him if it found out that he was a supporter of Jamaat-e-Islami and that he did not make these claims in his visa application for that reason. 

5. The Tribunal raised with the applicant concerns consistent with s.424AA of the Act in relation to the applicant’s credibility. The Tribunal orally gave clear particulars of the information that the Tribunal considered would be the reason, or part of the reason for affirming the decision under review. The Tribunal took steps to ensure, as far as reasonably practicable, that the applicant understood why the information was relevant to the review, and the consequence of the information being relied on by the Tribunal and the invitation to the applicant to comment or respond, and that he could seek additional time to comment or respond.

6. The Tribunal found that the applicant had not left Bangladesh on a false passport and that he did not leave Bangladesh unlawfully. The Tribunal found having considered all the applicant’s claims, the evidence and the submissions, that the applicant was not a witness of truth. The Tribunal found that the applicant had fabricated his material claims for the purpose of obtaining a protection visa. The Tribunal was of the view that the applicant manufactured his material claims in his visa application and then subsequently forgot what he had claimed in his visa application and fabricated a new set of claims during his interview with the Department on 14 August 2014 and during the Tribunal hearing. 

7. The Tribunal having considered the applicant’s claims, individually and cumulatively, and all the evidence and submissions, found that there is no real chance the applicant will suffer persecution on the grounds of his actual or imputed political opinion or any other Refugee Convention reason if he returns to Bangladesh now or in the reasonably foreseeable future. The Tribunal found the applicant does not have a well-founded fear of persecution for a Refugee Convention reason. The Tribunal found that the applicant did not meet the criteria under s.36(2)(a) of the Act. The Tribunal found that it was not satisfied there were 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, as defined in s.36(2A) of the Act. The Tribunal found 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

1. On 8 December 2016, a Registrar of the Court made orders providing the applicant with an opportunity to file an amended application, affidavit evidence and submissions. No such documents were filed. 

2. The grounds in the application are as follows:-

   1. In making decision, the Administrative Appeals Tribunal acted without jurisdiction or in excess of jurisdiction when it failed to take into account relevant considerations.

   2. The tribunal failed to assess my harm on the basis of my claims.

   3. The tribunal failed to assess the present situation in Bangladesh since I left.

   4. The tribunal decision effected by the natural justice.

   5. The tribunal made decision without any verification of my genuine documentary evidence and statement.

   6. The Tribunal decision is identical or similar of the Departmental decision.

   Particulars:

   AAT unreasonably raised doubt over my claims for political opinion. The Department and the Tribunal misunderstood or misconstrued the facts which was effect the decision.

   And for the safety of my life I forced to leave Bangladesh by boat. When it became worse, I decided to leave with full of my life risk Bangladesh.

   I argue that the Department and the Tribunal asked many irrelevant questions to test the credibility of my evidence.

   The Department and the Tribunal found inconsistency because the questions were asked in such a manner for which I was not prepared. Sometimes I was nervous and confused at the time of interview with the Department & the tribunal. I did not understand interpreter properly.

   For the protection of my life and I became serious target by the Police, Awami League gang and their activist and present Awami league Government.

   The Department has accepted that I was very confused. I, myself was not understanding what answer I was giving for what question. I will provide more details in my Amended Application.

   I believe I was denied procedural fairness when the hearing was conducted not freely and fairly.

3. 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 a relevant legal error. The Court explained that the relevant legal error had to be either an excess of statutory power or a 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 unfair. The Court explained that if satisfied that the Tribunal’s decision was unlawful or unfair, the decision would be set aside and sent back for further hearing. The Court explained that if the Court was not satisfied the Tribunal’s decision was unlawful or unfair, the application would be dismissed. 

4. 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. 

5. From the bar table, the applicant raised that he had been misunderstood by the interpreter during the hearing before the Tribunal. The applicant alleged that he had only just received the CD and then he changed that assertion to the fact that he had not yet received the CD and alleged that there were inconsistencies between the CD and the evidence which the applicant gave.  It is apparent from the applicant’s application that the applicant raised as a ground an allegation that there was a problem with his understanding of what answer he was giving to what question. The Registrar of the Court gave the applicant an opportunity to put on an amended application and to put on affidavit evidence. No such evidence was put on by the applicant. 

Adjournment application

1. The first notice of an application for an adjournment was raised by the applicant at the hearing today and no earlier notice was given to the first respondent. The first respondent opposed the grant of an adjournment. From the bar table, the applicant said that he had no money to obtain legal assistance and he could not obtain funds from friends. The applicant’s explanations about wanting to put on further evidence were inconsistent. No evidence had actually been put on by the applicant in support of his assertions that there was any interpretation error or any misunderstanding of his evidence by the Tribunal. The applicant had a reasonable opportunity to put on evidence if he wished to do so.  I do not accept the applicant’s explanation that he was unable to do so for want of a reasonable opportunity. 

2. Further, when asked by the Court to identify what part of the Tribunal’s reasons reflected any misunderstanding, the applicant was unable to identify any part of the Tribunal’s reasons said to be the subject of interpretation error.  The applicant did purport to allege that there were generalised assertions in the submissions of the first respondent with which he took issue. The applicant did not take the Court to any part of the Tribunal’s reasons in respect of identifying alleged error. The applicant maintained that there had been some misunderstanding because he had asserted from the beginning that he was a member of the BNP and Jamaat-e-Islami. 

3. Given the inconsistency in the explanations advanced by the applicant in relation to the CD and the time that the applicant has had since the lodging of his application to put on evidence in respect of the alleged misunderstanding, the Court is not satisfied that an adjournment is warranted in the interests of the administration of justice. The Court is not satisfied that an adjournment would be of any utility. An adjournment would only unnecessarily add to the costs of the parties and utilise limited court time. The Court is not satisfied that there was any misunderstanding of the applicant’s evidence, let alone any material interpretation error.

4. From the bar table, the applicant sought to repeat his claims in respect of political involvement and take issue with the adverse credibility findings. Nothing said by the applicant from the bar table identified any arguable jurisdictional error. 

Consideration

1. In relation to the grounds in the application, grounds 1 to 6 are generalised allegations, none of which are capable of making out a jurisdictional error by reason of the bare allegation.

Ground 1

1. In relation to ground 1, the Tribunal’s reasons were in effect an orthodox approach to the review and there is no substance in the assertion that the Tribunal acted without jurisdiction or in excess of jurisdiction. Nor is there any identified relevant consideration that the Tribunal failed to take into account. On the face of the Tribunal’s reasons, the Tribunal took into account the applicant’s claims and made adverse findings in relation to the applicant’s credit that were open and which cannot be said to lack an evident and intelligible justification. No jurisdictional error is made out by ground 1. 

Ground 2

1. In relation to ground 2, for the reasons I have given the Tribunal addressed the applicant’s claims, and there is no substance in the assertion that the Tribunal failed to assess the applicant’s claims against the correct identification of the law in the tribunal’s reasons.  Ground 2 fails to make out any jurisdictional error.

Ground 3

1. In relation to ground 3, it was a matter for the Tribunal to determine what country information it accepted and given the adverse credibility findings in relation to the applicant’s claims there is no identified aspect in respect of which the Tribunal failed to relevantly address the present situation in Bangladesh.

Ground 4

1. In relation to ground 4, the applicant was invited to attend the hearing, and on the material before the Court, the applicant had a real and meaningful hearing before the Tribunal. The assertions by the applicant from the bar table that there were interpretation errors is not supported by any evidence. Neither the transcript has been tendered nor has the Court been taken to any part of the Tribunal’s reasons said to reflect any error in the interpretation or a misunderstanding of the applicant’s evidence by the Tribunal. On the face of the material before the Court, the Tribunal complied with its statutory obligations. On the face of the material before the Court, the Tribunal complied with its obligations of procedural fairness in the conduct of the review. No jurisdictional error is made out by ground 4. 

Ground 5

1. In relation to ground 5, it was a matter for a Tribunal to determine the applicant’s credit and the Tribunal gave rational and cogent reasons for the adverse credibility findings in relation to the applicant. There is no substance in the contention that the Tribunal failed to genuinely engage in the consideration of the applicant’s claims. For the reasons summarised above as to the Tribunal’s concerns as to the applicant’s credit, the adverse credibility findings by the Tribunal were open.  No jurisdictional error is made out by ground 5.

Ground 6

1. The assertion in ground 6 that the Tribunal’s decision is identical to the delegate’s decision is without substance. No jurisdictional error is made out by ground 6. 

Particular 1

1. In relation to particular 1, it was open to the Tribunal to evaluate the applicant’s credit in respect of his claims of fears for political reasons.  There has been no identified misunderstanding or misconstrued fact by the applicant in respect of the Tribunal’s decision.  Particular 1 fails to support any jurisdictional error. 

Particular 2

1. Particular 2 is a re-assertion of the applicant’s claims and fails to identify the jurisdictional error. 

Particular 3

1. Particular 3 is a generalised assertion of irrelevant questions to test the applicant’s credit. It was proper for the Tribunal to explore the applicant’s credit and it was appropriate for the Tribunal to comply with requirements of s.424AA of the Act in the course of the hearing. No jurisdictional error is made up by particular 3.

Particular 4

1. In relation to particular 4, the applicant’s assertion that he was nervous, confused or did not understand the interpreter properly is not supported by any evidence. The adverse finding that the applicant’s evidence before the Tribunal reflected a want of credibility in relation to his claims was open.  No jurisdictional error is made out by particular 4. 

Particular 5

1. Particular 5 is a re-assertion of the applicant’s claims and does not identify any jurisdictional error. 

Particular 6

1. In relation to particular 6, the Tribunal did not accept the applicant’s credit and there has been no identified finding of the Tribunal that was said to be the subject of some misunderstanding by the applicant. No amended application was filed by the applicant. Particular 6 fails to identify any jurisdictional error. 

Particular 7

1. Particular 7 is unsupported by any evidence in respect of the assertions made as to the conduct of the review. On the face of the material before the Court, the review was conducted freely and fairly and it was one in which the applicant had a genuine opportunity to present his claims and put submissions. Moreover, the applicant was represented at the review by his migration representative, albeit over the telephone. On the material before the Court, no complaint was made by the migration agent in relation to the conduct of the review or problems with interpretation either at the time of the hearing or thereafter in the months that followed prior to the decision of the Tribunal.

2. There was nothing in the Tribunal’s reasons to support the applicant’s allegation from the bar table that he raised concerns about the interpretation during the hearing. Particular 7 fails to make out any jurisdictional error. 

Conclusion

1. The application fails to identify any jurisdictional error. 

2. The application is dismissed.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 2 June 2017