CQY18 v Minister for Home Affairs

[2019] FCCA 755

FEDERAL CIRCUIT COURT OF AUSTRALIA

CQY18 v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 755

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – applicant claiming a fear of harm in Bangladesh – applicant not believed – numerous errors alleged – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), ss.36, 424AA, 438

Cases cited:

MZAFZ v Minister for Immigration [2016] FCA 1081

Applicant: CQY18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1437 of 2018

Judgment of: Judge Driver

Hearing date: 26 March 2019

Delivered at: Sydney

Delivered on: 26 March 2019

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms J Noakesmith of DLA Piper

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, fixed in the sum of $3,350.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1437 of 2018

CQY18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal).  The decision was made on 7 May 2018.  The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.  Background facts relating to this matter are set out in the Minister’s outline of submissions filed on 14 March 2019.   

2. The applicant is a male citizen of Bangladesh. The applicant arrived in Darwin, Australia on 6 May 2013 as an irregular maritime arrival.[1]

   [1] Court Book (CB) 94

3. On 13 August 2013, the applicant applied for a protection (Class XA) (Subclass 866) visa.[2]  He claimed to fear harm from a person called R,[3] an Awami Leauge[4] linked member of a family who lived with the applicant’s family in Bangladesh.[5] The applicant claimed that:

   a)R “fraudulently robbed” the applicant's family of their entitlement to their house, attempted to forcibly evict them in 2004 and forced them to move out in February 2012;

   b)in 2011 R came to the applicant's house armed with other members of the AL, and the applicant fled. These attacks occurred ten times during 2011, each time R was ready to attack, and the applicant managed to flee;

   c)he feared serious harm or death from threats and attacks from R and his men; and

   d)he reported R for illegal money laundering in 2010 for which R was subsequently prosecuted and in January 2013, the applicant was attacked by an AL mob that had been sent to harm him by R.

   [2] CB 19-48

   [3] The name has been anonymised

   [4] AL

   [5] CB 45-47

4. On 14 August 2015, the delegate refused to grant the applicant a protection (Class XD) (Subclass 785) visa.  The delegate did not accept the applicant's claims that he was threatened or was caused harm by R or persons directed by him, on the basis of credibility findings.[6]

   [6] CB 90-109

5. On 19 August 2015, the applicant's representative lodged an application for review to the Tribunal for review of the delegate's decision.[7]

   [7] CB 111-119

6. On 29 January 2018, the applicant's representative provided submissions to the Tribunal attaching country information.[8]

   [8] CB 134-153

7. On 12 April 2018, the applicant and the applicant's representative appeared before the Tribunal.[9]

   [9] CB 165-168

8. On 8 May 2018, the Tribunal affirmed the decision under review.[10]

The decision of the Tribunal

[10] CB 170-179

Non-disclosure certificate – s.438

1. The Tribunal identified to the applicant that the Minister’s Department had issued a certificate under s.438 of the Migration Act 1958 (Cth) (Migration Act) in respect of folios 39 and 68-76 in the Departmental file CLF2013/19215.

2. The certificate claimed that the disclosure of the material would be contrary to the public interest because the material related to internal working documents and business affairs.[11]

   [11] at [6]

3. The material covered included the Departmental document which was generated to record the applicant’s response to an Irregular Maritime Arrival and Induction Interview by Departmental officials and a coversheet for the Immigration Advice and Application Assistance Scheme interview.[12]

   [12] at [6]

4. The Tribunal advised the applicant about the existence of the certificate and the material it purported to cover.  The applicant was invited to make submissions about the validity of the certificate. The applicant's agent responded on his behalf and did not wish to make any submissions regarding the issue.[13]

   [13] at [7]

5. With reference to MZAFZ v Minister for Immigration,[14] the Tribunal found that the certificate did no more than state part of the basis of the claim for non-disclosure and did not identify the harm that could be done to the public interest by the disclosure of the information. The Tribunal found that the certificate was invalid and considered the material together with the rest of the material on the departmental file.[15]

   [14] [2016] FCA 1081

   [15] at [10]

Credibility of the applicant

1. The Tribunal found that inconsistencies between the applicant's written application and his oral evidence to be profound and that one aspect of his claims was unbelievable. For these reasons, the Tribunal found that the applicant was not a witness of truth and that the Tribunal could put no weight on the applicant's claims.[16]

   [16] at [30]

2. The oral evidence given to the Tribunal about the family home was very different to the evidence contained in his written application.[17]  In his written application the applicant claimed the home was home to two families, his own, and R’s family. In oral evidence the applicant stated that the home contained four families.[18]

   [17] at [31]

   [18] at [32]

3. The oral evidence that the applicant gave about the court case involving the family house was very different to circumstances set out in the written application.[19]  The oral evidence stated that there were three court cases. In his written application, the applicant stated that there was one court case.[20]  The Tribunal put to the applicant that if R had won the last Court case it would be curious as to why R would continue to be interested in the applicant as five years had passed since that time.  The applicant then changed his story to say that R would still be interested in him because R wanted the property and that the third court case ruled that neither family could obtain the property without documents, which was different to what the applicant had told the Tribunal previously.[21]

   [19] at [33]

   [20] at [37]

   [21] at [37]

4. The oral evidence that the applicant gave about his payment to secure his passage to Australia was different to what he told the officer as part of his Irregular Maritime Arrival interview.[22]  The applicant told the Tribunal that he got access to the money from a “friend’s network”.[23] The Tribunal put to the applicant pursuant to s.424AA of the Migration Act, that the applicant had told the case officer in his Irregular Maritime Arrival Interview that he had paid for his travel himself and that no money was outstanding. The applicant responded that he did pay the money himself as he was the one who collected it from others and then paid for his travel.[24]  The Tribunal accepted the migration agent's submission that the interview was not a comprehensive assessment of claims in place of a delegate's interview.  However, the Tribunal considered that the question of who paid for the travel was a simple one. The Tribunal did not accept the applicant's explanation and considered that the applicant had demonstrated a “lax approach” to telling the truth.[25]

   [22] at [38]

   [23] at [39]

   [24] at [39]

   [25] at [40]

5. The Tribunal could not accept that the applicant, who was 17 years of age in 2010, would be responsible for the management of the family court cases, and would become a target of R as a consequence.[26] The Tribunal rejected the applicant's explanation that he would be in a better position to deal with the court cases because he was better educated than his father and his brother.  The Tribunal rejected this because it was “incredulous” to think that a 17 year old would be in a better position than his father (who had inherited the property in the first place) or his older brother who worked in business.

   [26] at [41]

6. The oral evidence that the applicant had trouble with the family home that started in 2010 when R tried to remove his family from the house. The written application stated that R tried to forcibly evict the family in 2004.

7. The Tribunal put to the applicant the concerns it had about the applicant's evidence above, regarding the housing, the court cases and the dates of when the family was evicted and the failure of the applicant to mention the “ten similar attacks” that occurred in 2011.[27]  The applicant responded to these concerns with one statement, that the way that he presented his case may be “here and there” but the reason he left the country was because of R.[28]

   [27] at [32], [37] and [43]

   [28] at [44]

8. The Tribunal agreed that the applicant's evidence was “here and there” but found that the evidence was in such a state because it was unreliable. The Tribunal found that the applicant was not a witness of truth due to the inconsistencies between his written application and oral evidence. Further, the Tribunal found that the applicant's claim that he was responsible for the handling of the property dispute was unbelievable for the reasons it outlined at [42] and [45].[29]

   [29] CB 178-179

9. The Tribunal rejected the entirety of the applicant's claims.  The Tribunal was not satisfied that there was a property dispute, nor that the applicant had ever been the subject of past harm at the hands of R, or anyone associated with R. The Tribunal was not satisfied that the applicant left Bangladesh due to past harm or a fear of future harm. The Tribunal found that the applicant's claims were invented to provide him a basis for a protection visa.[30]

   [30] at [46]

10. The Tribunal was not satisfied that the applicant was a person in respect of whom Australia has protection obligations under the Refugees Convention. The Tribunal accordingly found that the applicant did not satisfy the criterion set out in s.36(2)(a).[31]

    [31] at [47]

11. Turning to complementary protection, the Tribunal was not satisfied that the applicant was a person in respect of whom Australia has protection obligations under s.36(2)(aa). The Tribunal found that there was no real risk that the applicant would face significant harm if he was removed from Australia to Bangladesh because the Tribunal found that the applicant was not a witness of truth and his claims were not credible.[32]

    [32] at [48]

12. These proceedings began with a show cause application filed on 23 May 2018.  The applicant continues to rely upon that application.  There are six grounds with particulars in the application:

    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 harm based on 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 evidences 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 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 after arrived by boat in Australia. 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 activists.

    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.

    (errors in original)

13. The application is supported by an affidavit filed with it, which I received as a submission.  In that affidavit, the applicant asserts error of law and a denial of procedural fairness. 

14. The only evidence I have before me is the court book filed on 15 August 2018. 

15. I invited oral submissions from the applicant this afternoon.  He told me with disarming frankness that there was no mistake in the Tribunal decision and it was the right decision.  In the circumstances, I invited him to consider whether he wished to discontinue his application.  I understand him to have declined that opportunity.  He told me that he often forgets things.  He invited the Court to consider whether he was telling the truth to the Tribunal.  I explained to him the narrow judicial review function of this Court and the merits review function of the Tribunal.  The applicant had no further submissions to make. 

16. No arguable case of jurisdictional error arises from the application as filed and neither is there an arguable case of error of law or a denial of procedural fairness as asserted in the applicant’s affidavit. The Tribunal decision turned on comprehensive adverse credibility findings. In my view, those findings were open to the Tribunal on the material before it for the reasons it gave. It appears to me that the Tribunal complied with the statutory obligations upon it under the Migration Act. I otherwise agree with the Minister’s submissions concerning the grounds of review advanced.

Ground 1

1. Ground 1 alleges that the Tribunal erred when it failed to take into account relevant considerations. This ground has not been particularised.

2. The Tribunal clearly summarised the applicant's written statement of claims from [11]-[23] and addressed these claims in assessing the credibility of the applicant's evidence in the written evidence against the oral evidence provided to the Tribunal at [31]-[43].  Further, the Tribunal addressed the applicant's oral response to inconsistencies at [44]-[45].

3. There is nothing on the face of the evidence to suggest that the Tribunal failed to take into account any relevant considerations.

Ground 2

1. Ground 2 alleges that the Tribunal failed to assess the harm based on the applicant's claims. This ground does not particularise what the Tribunal failed to assess.

2. The Tribunal rejected the entirety of the applicant's claims on the basis of its credibility findings throughout.[33]

   [33] see [30]-[43] and as summarised at [44]-[46]

3. As the Tribunal rejected the applicant's claims on the basis of credibility, it then found that there was no real chance that the applicant would face serious harm at [47], and that there was no real risk that the applicant would face significant harm at [48], if he were to be removed from Australia to Bangladesh.

4. There is nothing on the face of the evidence to suggest that the Tribunal failed to assess any aspect of the applicant's claims.

Ground 3

1. Ground 3 alleges that the Tribunal failed to assess the present situation in Bangladesh since the applicant left.

2. The Tribunal was not satisfied that there was a property dispute, nor that the applicant had ever been the subject of past harm at the hands of R, or anyone associated with R.[34]  Accordingly on that basis, and the rejection of the applicant's claims in their entirety, also at [46], the Tribunal was not then obliged to consider the applicant's claim to fear harm from an imputed political opinion, as this claim was based on the claims that were already rejected by the Tribunal.

   [34] at [46]

Ground 4

1. Ground 4 alleges that the Tribunal's decision is affected by a want of natural justice. This ground is unparticularised, and there is nothing on the face of the decision record to suggest any denial of procedural fairness. 

Ground 5

1. Ground 5 asserts some kind of failure to verify the applicant's evidence and statement. Whilst it is not clear what is contended by this ground the Tribunal considered the entirety of the evidence, including the applicant's written statement, as summarised at [11]-[23].

Ground 6

1. Ground 6 asserts that the Tribunal's decision is similar or identical to the delegate's decision. The applicant has not identified any jurisdictional error that arises on this basis.

2. On reading both decisions, it is clear that any similarity does not go to jurisdiction. The Tribunal clearly discussed oral evidence given to it by the applicant at the hearing throughout its decision.[35]

   [35] see for example, at [32], [34], [35], [36], [37] and otherwise throughout majority of the decision record

3. This ground fails to identify, and further does not establish, any jurisdictional error by the Tribunal and therefore must fail.

"Particulars"

1. The applicant's "particulars" are broad assertions of error and invite an impermissible merits review.

2. With respect to the first paragraph, the applicant alleges that the Tribunal unreasonably raised doubt over his claims. The credibility findings and implausibility findings of the Tribunal were open to it, on the basis of the inconsistent evidence, and on the basis of the Tribunal's reasoning at [42].

3. With respect to the second and fifth paragraphs, these paragraphs merely restate the applicant's claims and do not identify any jurisdictional error.

4. With respect to the third paragraph, the applicant alleges that the Tribunal asked irrelevant questions to test the credibility of the applicant's evidence. Without further particularisation, or a transcript of the evidence, there is nothing to indicate that the Tribunal asked any irrelevant questions. Further, the Tribunal was entitled to ask the applicant questions to determine his credibility and invite comment on inconsistencies in his evidence.

5. With respect to the fourth and sixth paragraphs, the Tribunal addressed this submission at [40], finding that the question was a simple question which the applicant failed to answer truthfully.  This finding was open to the Tribunal on the evidence before it and for the reasons that it gave. Insofar as the applicant alleges an issue with the interpreter, the applicant has not claimed to have misunderstood the interpreter at any stage and has not filed any transcript.

6. With respect to the seventh paragraph, this does not establish or particularise any jurisdictional error and must fail.  There is no evidence to support the broad assertion that the Tribunal hearing was not conducted freely and fairly, or resulted in denial of procedural fairness.

7. I conclude that the applicant is unable to demonstrate an arguable case of jurisdictional error by the Tribunal. I will order that the application be dismissed pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules2001 (Cth).

8. In consequence of the dismissal of the application, the Minister seeks an order for costs fixed in the sum of $3,350. 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.

9. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,350.

I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date: 28 March 2019