Cpo15 v Minister for Immigration

[2016] FCCA 2286

FEDERAL CIRCUIT COURT OF AUSTRALIA

CPO15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2286

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Cases cited:
MZYXS v Minister for Immigration [2013] FCA 614
SZSGA v Minister for Immigration [2013] FCA 774

Applicant: CPO15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3313 of 2015

Judgment of: Judge Driver

Hearing date: 1 September 2016

Delivered at: Sydney

Delivered on: 1 September 2016

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms Wong of Mills Oakley

INTERLOCUTORY ORDERS

1. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,606 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3313 of 2015

CPO15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. I have before me an application to review a decision of the Administrative Appeals Tribunal, formerly the Refugee Review Tribunal (Tribunal).  The decision was made on 16 November 2015.  The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.  Background facts relating to the application for protection and the decision of the Tribunal on it are set out in the Minister’s legal submissions filed on 24 August 2016.   

Background

1. The applicant is a citizen of Bangladesh who arrived in Australia as an unauthorised maritime arrival on 20 March 2013.[1] He participated in an entry interview[2] and made an application for a protection (class XA) visa on 2 July 2013.[3] The applicant appointed a migration agent to act on his behalf.[4] The applicant set out his written claims in a statutory declaration accompanying the application.[5]

   [1] Court Book (CB) 34

   [2] CB 1- 18

   [3] CB 21-46

   [4] CB 76-79

   [5] CB 47-50

2. The applicant claimed to fear harm due to his imputed political opinion and membership of a particular social group comprising “people who had defied the rich and powerful families in Bangladesh”.[6] The applicant claimed he had an affair in Bangladesh with a girl who belonged to a rich and powerful family. She committed suicide after her family found out about the affair and forced her into an arranged marriage with another man. The former girlfriend’s family blamed the applicant for her suicide and sought revenge. The applicant subsequently went into hiding because the former girlfriend’s family had powerful political connections, honour killings were common in Bangladesh and he thought the authorities would not protect him.

   [6] CB 47

The delegate

1. The applicant attended an interview before the delegate on 11 August 2014,[7] who refused the application for a protection visa on 1 September 2014. The delegate rejected the applicant’s claims on the basis of comprehensive adverse credibility findings.[8]

   [7] CB 107

   [8] CB 107-111

The Tribunal

1. On 16 September 2014, the applicant lodged an application with the Tribunal together with a copy of the delegate’s decision.[9]

   [9] CB 117-122

2. The Tribunal found that the applicant was not a witness of truth and had fabricated key aspects of his claims[10]. The Tribunal identified various inconsistencies between the applicant’s oral evidence at the hearing and his written claims in relation to his past education and employment, when his former girlfriend’s family found out about the alleged affair and whether the applicant and his former girlfriend had planned to marry.[11] The Tribunal also identified inconsistencies between the applicant’s oral evidence at the hearing and his interview before the delegate about when his former girlfriend’s family found out about the relationship and whether the applicant had been directly threatened by them.[12] The Tribunal also did not accept as credible the applicant’s claim that he was able to live in hiding with his brother for three years without his former girlfriend’s family being able to find him.[13]

   [10] CB 143 [22] and CB 146, [32]

   [11] CB 143, [23]-[25]

   [12] CB 145, [28]-[30]

   [13] CB 146, [31]

3. The Tribunal did not accept that the applicant had provided a satisfactory explanation for these inconsistencies.[14] Nor did it accept the applicant’s claims made at the hearing that the identified deficiencies in his evidence were explained by pressure, stress or some other mental condition that affected his memory.[15]

   [14] CB 143, [23]; CB 145, [26]; and CB 146, [30]-[31]

   [15] CB 143, [20]-[21]

4. In light of the above credibility concerns, whilst the Tribunal was prepared to accept that the applicant had been in a relationship, it did not accept that she was forced to marry another man or had committed suicide as a result or that her family targeted the applicant for revenge.[16] It also did not accept that the applicant would otherwise be of any adverse interest to the authorities or anyone else in Bangladesh for the reasons claimed.[17] Accordingly, the Tribunal was not satisfied there was a real chance that the applicant would suffer any serious or significant harm if he returned to Bangladesh.[18]

   [16] CB 146, [33] - CB 147, [34]

   [17] CB 147, [35]

   [18] CB 147, [36] – CB 148, [44]

Present proceedings

1. The present proceedings were commenced by application filed on 4 December 2015.  The applicant continues to rely upon that application.  There are several grounds and particulars in the application:

   1.The applicant claims that in making decision, the Administrative Appeal Tribunal acted without jurisdiction or in access of jurisdiction when it failed to take account relevant considerations and took into account irrelevant considerations.  

   2.Particulars: Subparagraph of 65 (1) (a) (ii) of the Migration Act 1958 required the decision maker in respect of the applicant’s primary application for a protection visa to make determination as to whether criteria for the grant of the visa prescribed by the Act of the Regulations made there under were satisfied. The AAT required to review the decision of the Respondent first and to that end the Act vested the AAT with powers and discretions. The applicant claimes that the AAT ignored this and made decision on irrelevant facts and findings.

   3.The Applicants claims the AAT made jurisdictional error when it mistook the facts and made decision on assumption and probability.

   4.Particulars: The AAT’s finding of reasons are confused and test for persecution is not applied according to the rules of the Act : The applicant fears of Persecution is based on the social problems which is related with early marriage, arrange marriage and Honor Killings. The AAT did not explore the crux of the problem. Child marriage or arrange marriage without the maturity of girl and her consent is viewd both as tradition and way to protect young girls from stalking and sexual harassment. More often the law is not enforced and parent marry with devasting consequences for the helth and well being of their daughter. The applicant claims the AAT failed to account recent situations in Bangladesh where hundreds of young girls are killed or do the self harm or sucide.

   5.The applicant claims that the AAT unduly adopted harsh approach in assessing the fear of harm. The AAT did not follow the Rules of real risk Test of Persecution and harm. The AAT failed to account all the circumstances of fear and harms in which the applicant lived in Bangladesh. The AAT failed to give real reasons for not applying Complementary Protection Criteria Under Pargraoh 36 (2) (aa).

   6.Particulars: The applicant is his statutory declaration attached with the application for the Protection visa clearly indicated that the girl whom he had love affairs did suicide because her parents by force wanted to marry her with another person. The parents of girl is wealthiest person of that area and they made determination to kill the applicant at any cost. The parents absolutely believe his daughter did suicide because she was denied to have relation with the applicant. The applicant has genuine fear of harm and he will go back to his country he will be killed. The AAT failed to assess the circumstances and the current situation in Bangladesh where evry hear hundreds of people are killed by Honor killing.  

   (errors in original)

2. I have before me as evidence the court book filed on 22 February 2016. Only the Minister prepared written submissions in accordance with procedural orders made by a registrar. 

3. I invited oral submissions from the applicant this afternoon.  He said that he had told the truth to the Tribunal and that his former girlfriend had committed suicide after being forced into an arranged marriage.  He fears harm from her family should he return to Bangladesh.  He asked the Court to intervene to save his life. 

4. In submissions in reply, the applicant indicated that it was possible that the girl’s family’s enmity might fade over time and if he was given two or three more years to remain in Australia, he may be able to safely return to Bangladesh. 

5. None of those matters advanced any legal issue.  While the grounds advanced in the application used some legal terminology, the applicant’s real concern is with the merits of the Tribunal decision. Those merits are beyond the scope of this proceeding. 

6. The Minister’s submissions attempt to grapple with the grounds as expressed. I agree with those submissions. 

Ground one

1. Ground one alleges that the Tribunal failed to take into account relevant considerations and took into account irrelevant considerations because it ignored its statutory duty to review the delegate’s decision and made its decision on irrelevant facts and findings. This ground lacks any meaningful particulars and fails to identify with any precision the relevant matters that the Tribunal allegedly overlooked and/or irrelevant matters it took into account. The Tribunal considered all of the applicant’s claims but rejected them on the basis of comprehensive adverse credibility findings. As these findings were open to the Tribunal on the evidence before it, this ground cannot succeed.

Ground two

1. Ground two alleges that the Tribunal “mistook” the facts and made its decision on “assumptions and probability” because it failed to explore the crux of the applicant’s claims relating to the problems faced by young girls in Bangladesh who are forced into marriage. This ground fails on the facts as the Tribunal expressly considered but rejected[19] the applicant’s claims that his former girlfriend killed herself because she was forced to marry someone else and that the applicant was targeted by her family as a result. Once the Tribunal rejected these claims, there were no other residual claims that it overlooked or failed to consider.  

Ground three

[19] at CB 146, [33] – CB 147, [34]

1. Ground three complains that the Tribunal took an “unduly harsh approach” when assessing the applicant’s claims, failed to apply the real risk test and “failed to give real reasons when considering the complementary protection” criterion. However, the particulars in support of this ground simply repeat the applicant’s claims for protection. Further, the Tribunal’s decision record[20] reveals that it cited and applied the correct test and gave adequate reasons when considering the applicant’s claims for complementary protection. In particular, it was open to the Tribunal to rely on the credibility concerns it had previously identified in its reasons when assessing the applicant’s claims under the complementary protection criterion.[21] Accordingly, this ground must also fail.

   [20] at CB 147, [39] – CB 148, [44]

   [21] SZSGA v Minister for Immigration [2013] FCA 774 at [54]-[56]; MZYXS v Minister for Immigration [2013] FCA 614 at [31]

2. I conclude that the applicant has been unable to present an arguable case of jurisdictional error by the Tribunal. I will order pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), that the application be dismissed.

3. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale in the sum of $3,606. The applicant claims impecuniosity, but, as has been repeatedly stated, that is not a reason for the Court to refrain from making a costs order.  I’m satisfied that costs of not less than $3,606 have been reasonably and properly incurred on behalf of the Minister, and I will order that the applicant pay those costs.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date: 9 September 2016