CQJ15 v Minister for Immigration

[2016] FCCA 728

FEDERAL CIRCUIT COURT OF AUSTRALIA

CQJ15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 728

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Protection (Class XA) visa – whether the Tribunal erred in making adverse credit findings – whether the Tribunal took irrelevant considerations into account – whether the Tribunal failed to ask itself the correct questions – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 476

Applicant: CQJ15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3347 of 2015

Judgment of: Judge Street

Hearing date: 4 April 2016

Date of Last Submission: 4 April 2016

Delivered at: Sydney

Delivered on: 4 April 2016

REPRESENTATION

The applicant appeared in person

Counsel for the First Respondent: Mr H P T Bevan

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. The application is dismissed.

2. The applicant pay the costs of the first respondent fixed in the amount of $5800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3347 of 2015

CQJ15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Tribunal made on 15 November 2015 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. On 28 February 2013, the applicant arrived in Australia as an irregular maritime arrival.  The applicant claimed that he had been a supporter of the Jamaat-e-Islami party (JI) and that in 2011 he was involved in a fight in his village with members of the Awami League who he had been told by his cousin had decided to kill him.  The applicant gave further information in relation to the attack on his village and said that this occurred in 2012.  During a trip when the applicant returned to Bangladesh from Malaysia, he claimed he was again the subject of an attack at his house by members of the Awami League and he managed to avoid harm by escaping by the back door. 

3. The applicant appeared before the Tribunal to give evidence and present arguments on 20 May 2015 and, as a result of issues raised by the applicant, the matter was the subject of a further hearing before the Tribunal on 24 June 2015 at which the applicant attended to give evidence and present arguments.  The hearings were conducted with the assistance of an interpreter, and the applicant had a registered migration agent attend the first hearing on 20 May 2015 and another representative attended the hearing on 24 June 2015. 

4. The Tribunal found that the applicant, if he returned to Bangladesh, would become again involved in JI and would undertake similar activities as he had undertaken before by attending meetings and participating in processions.  The Tribunal made adverse credit findings of the applicant and found that the assertion that he had been attacked should not be believed.  

5. The Tribunal gave reasons for the adverse credit findings and those reasons were open on the evidence before the Tribunal.  Nothing said by the applicant identified any legal error in the adverse credit findings by the Tribunal.  The Tribunal found that there was no real chance the applicant will suffer from any harm now or in the future if he is returned to Bangladesh, and the Tribunal was not satisfied that the applicant has a well-founded fear of serious harm amounting to persecution for reasons of a Convention ground or for any other reason. 

6. The Tribunal found there are no substantial grounds for believing that it is a necessary and foreseeable consequence of the applicant being removed from Australia to Bangladesh there is a real risk he will suffer significant harm. It was in those circumstances the Tribunal found that the criteria under ss.36(2)(a) and 36(2)(aa) was not met and affirmed the decision of the delegate.

7. The grounds in the application are as follows:

   1. The Tribunal placed undue weight on irrelevant considerations which did not detract from well-founded fear of persecution.

   2. The Tribunal failed to ask the correct questions and drew their conclusions in the absence of evidence.

   3. The Tribunal failed to ask itself the correct question and relied upon “real risk of significant harm”. The court in Chan v MIEA (1989) CLR 379 states that the question to be asked when assessing claims for protection is whether there is “a real chance that a claimant be persecuted”. A real chance may be below a 50 per cent chance.

8. On 18 February 2016, a Registrar of the Court fixed the matter for hearing and provided the applicant with an opportunity to file an amended application, affidavit evidence and submissions.  No such documents were filed.  At the commencement of the hearing, the Court explained to the applicant the nature of the hearing being one to determine whether the Tribunal’s decision was affected by a legal error, and the applicant confirmed that he understood the nature of the hearing. 

9. The applicant maintained that the Tribunal wrongly rejected his credit.  The applicant posed the questions as to why would he take such a big risk on the ocean and why would he come here to Australia if he was not the subject of persecution.  This Court does not have jurisdiction to make fresh findings of fact in relation to the credit of the applicant. 

10. The applicant explained that he had not gone back to his village and that he would have lots of problems if he had to go back.  The applicant also contended that, having been accepted by the Tribunal that he would become involved again in JI, he said that it must be the case that he would be persecuted and, by reference to recent newspapers and the like, contended that the Tribunal must have engaged in a legal error by not properly considering his circumstances. 

11. Counsel for the first respondent submitted that the applicant had not identified any jurisdictional error by the Tribunal and that the applicant’s submissions went to the merits and invited in substance an impermissible merits review.  This Court does not have jurisdiction to revisit the merits.  I accept the first respondent’s submission that nothing said by the applicant identified any legal error by the Tribunal. 

12. It was open to the Tribunal to accept part of the applicant’s evidence and to reject other parts of the applicant’s evidence.  Further, the adverse findings referred to above were open on the material before the Tribunal.  There is no substance in the contention that the Tribunal did not properly consider the applicant’s circumstances and the structure and reasons of the Tribunal are inconsistent with such a proposition. 

13. In relation to ground 1, the generalised assertion of an irrelevant consideration does not identify any jurisdictional error by the Tribunal.  Ground 1 fails to make out any jurisdictional error. 

14. In relation to ground 2, the generalised assertion of incorrect questions or conclusions also fails to identify any jurisdictional error. On the face of the Tribunal’s reasons, the Tribunal asked the correct questions of law in relation to the criteria under s.36(2)(a) and the criteria under s.36(2)(aa). Ground 2 fails to make out any jurisdictional error.

15. In relation to ground 3, it is apparent that the Tribunal made adverse findings in relation to the criteria under s.36(2)(a) in paras.61 and 62, applying the correct test, and dealt separately with the issue of complementary protection and made adverse findings in that regard. There is no substance in the proposition that the Tribunal failed to ask itself the correct questions in respect of the criteria under s.36(2)(a) or the criteria under s.36(2)(aa). Ground 3 fails to make out any jurisdictional error.

16. For these reasons, the application is dismissed.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 5 April 2016