CSL15 v Minister for Immigration

[2016] FCCA 3010

FEDERAL CIRCUIT COURT OF AUSTRALIA

CSL15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 3010

Catchwords:
MIGRATION – Migration Act 1958 (Cth) – Protection visa application – application for judicial review of Tribunal decision refusing Protection visa – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.36

Cases cited:

CLI15 v Minister for Immigration [2016] FCA 1223

Dranichnikov v Minister for Immigration (1993) 197 ALR 389
NABE v Minister for Immigration (No. 2) (2004) 144 FCR 1

Applicant: CSL15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3411 of 2015

Judgment of: Judge Dowdy

Hearing date: 20 April 2016

Date of last submission: 20 April 2016

Delivered at: Sydney

Delivered on: 21 December 2016

REPRESENTATION

The Applicant appeared in person.

Counsel for the Respondents: Ms P Blackadder

Solicitors for the Respondents: Sparke Helmore

THE ORDERS OF THE COURT ARE AS FOLLOWS:

1. The Application filed in this Court on 16 December 2015 is dismissed, with costs to be determined.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3411 of 2015

CSL15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The Applicant in this proceeding is a male citizen of Bangladesh aged 24 years, having been born on 3 May 1992.

2. By Application filed in this Court on 16 December 2015 he seeks to quash and I assume to have redetermined, a decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal) dated 12 November 2015 which affirmed the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister) dated 30 January 2014 refusing to grant to him a Protection (Class XA) visa (Protection visa).

Background

1. The Applicant applied for a Protection visa on 10 January 2013. He had arrived in Darwin on 17 July 2012 without valid travel documents.

2. In his Biodata interview of 17 July 2012 he claimed to be stateless and of Bengali ethnicity and born in Bangladesh. He further claimed to have travelled to Australia from Bangladesh via Bangkok and then via Malaysia and Indonesia. He gave as the reason he was seeking Australia’s protection that “in Bangladesh they don’t pay a proper salary so I came to Australia”.

3. In his Irregular Maritime Arrival Entry Interview of 22 August 2012 he claimed to be stateless and of Rohingya ethnicity and denied that he had ever been arrested or detained by the police or security organisations in Bangladesh or that the police and security or intelligence organisations had impacted on his day-to-day life.

4. In his Statutory Declaration of 10 January 2013 which formed part of his Protection visa application, the Applicant said of his fear if he returned to Bangladesh as follows:-

   What I fear in Bangladesh

   33.I fear that I would suffer more discrimination and hardship because I am a Rohingyan refugee if I was returned to Bangladesh. As well as this, I am not able to return to Bangladesh. I have never had any documents for Bangladesh. I would not be accepted at the airport.

5. In other words, there was no suggestion that he thought he would be killed if he returned to Bangladesh from Australia.

6. For completeness, I record that he said at [15] of this Statutory Declaration as follows:-

   Life in Bangladesh

   …

   15.From time to time Rohingya are returned to Burma from Bangladesh. If we are caught at the border, we can be shot dead by either side.

7. The Applicant attended an interview with an officer of the Department of Immigration and Citizenship (Department) on 10 September 2013 in which he re-iterated and expanded on his claims. 

8. By letter dated 17 September 2013 and sent by email on 18 September 2013 the Applicant’s migration agent provided the Department with post-interview submissions which claimed that the Applicant feared serious harm if returned to Bangladesh from further exposure to degrading and dangerous black market work and poor conditions and continued lack of access to essential public services such as health and education, and would also suffer societal discrimination. Again there was no suggestion he would be killed if he returned to Bangladesh.

Decision of Delegate

1. The relevant criteria and law concerning the grant of a Protection visa were recently and conveniently summarised by Burley J in the Federal Court of Australia in CLI15 v Minister for Immigration [2016] FCA 1223 at [34] to [41] as follows:

   [34]The Act provides for different classes of visa, one of which is a protection visa under section 36. A protection visa may be granted if the criteria in subsection 36(2)(a) are met, namely, where the Minister is satisfied that the person is a person to whom protection obligations are owed under the Convention relating to the Status of Refugees 1951, as amended by the Protocol relating to the Status of Refugees 1967 (Refugee Convention). Article 1A(2) of the Refugee Convention provides, that a refugee is a person who, relevantly:

   ... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or particular opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.

   [35]A fear of harm is “well-founded” for the purpose of subsection 36(2)(a) of the Act when there is a “real substantial basis for it”, even where the chance of the object of the fear eventuating is less than 50 per cent. A fear of harm is not “well-founded” if it is merely assumed or speculative; Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559 at [48] (Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ).

   [36]Subsection 36(2)(aa) provides that a criterion for a protection visa is that the applicant for the visa is:

   A non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; ...

   [37]  A person who is not a citizen of Australia is a “non-citizen”.

   [38]Section 36(2)(aa) recognises that a non-citizen who is not entitled to a protection visa because he or she is not a refugee may nevertheless be entitled to protection in Australia under the obligations owed by Australia to afford protection, including under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984 and the International Covenant on Civil and Protection Rights 1966; Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; (2013) 210 FCR 505 (SZQRB) at [70] and [100] (Lander and Gordon JJ), and [300] and [313] (Besanko and Jagot JJ).

   [39]The proper test is whether there is a “real chance” that an applicant will suffer “significant harm” if returned to her or his country of origin: SZQRB at [242] – [246] (Lander and Gordon JJ, with whom Besanko and Jagot JJ agreed at [297] and Flick J at [342]).

   [40]Subsection 36(2A) in turn prescribes the circumstances in which a non-citizen will suffer significant harm as being if:

   (a) the non-citizen will be arbitrarily deprived of his or her life; or
   (b) the death penalty will be carried out on the non-citizen; or
   (c) the non-citizen will be subjected to torture; or
   (d) the non-citizen will be subjected to cruel or inhuman treatment or punishment; or
   (e) the non-citizen will be subjected to degrading treatment or punishment.

   [41]The phrase “significant harm” does not bear its ordinary and natural meanings. Its meaning is limited to that defined by section 36(2A); SZTMC v Minister for Immigration and Border Protection [2015] FCA 1282 (SZTMC) at [10] (Perry J). It is apparent from this definition that a requirement that a person suffer significant harm imposes a high threshold; SZTMC at [10].

2. By her Decision Record of 30 January 2014 the Delegate refused to grant the Applicant a Protection visa as she was not satisfied that Australia had Refugee Convention protection obligations to the Applicant under s.36(2)(a) or under the complementary protection criterion provided in s.36(2)(aa) of the Migration Act 1958 (Cth) (the Act). The Delegate did not accept that the Applicant was a stateless Rohingyan resident of Bangladesh but rather was “positively satisfied” that he was a citizen of Bangladesh. The Delegate recited that the Applicant had not claimed that he had faced or experienced any actual threats, harm or harassment in Bangladesh, either at the hands of Bengali authorities or at any other level. She noted that the Applicant agreed that he had never been questioned by any authorities in Bangladesh or ever harmed in Bangladesh. In these circumstances the Delegate was not satisfied that the Applicant had ever been threatened, harmed or harassed in Bangladesh or even that he had a subjective fear that he would be harmed or harassed in the future for the claimed reason of being a stateless Rohingyan in Bangladesh. The Delegate found that there was no evidence before her to indicate that the Applicant would face any form of harm arising from his unsuccessful attempt to seek asylum in Australia or for any factor arising from him having been outside Bangladesh for a period of time and she refused to grant a Protection visa.

3. The Delegate recorded that when she asked the Applicant if he thought he would be harmed if he returned to Bangladesh, he replied to the effect that:

   …what little he had in Bangladesh has been finished and he was supposed to help his parents and brother but for the last 18 months he has not been able to do so it will be a disaster (sic).

4. Whatever oblique meaning this response may convey, it certainly does not amount to a claim that the Applicant would be killed if he returned to Bangladesh.

Tribunal Hearing and Decision Record

1. The Applicant applied to the Tribunal for review of the Delegate’s decision on 17 February 2014.

2. The Applicant’s migration agent in a pre-hearing submission by letter dated 8 April 2015 and emailed on 9 April 2015 advised that the Applicant maintained his claims already made in his Statutory Declaration of 10 January 2013 and made a further additional claim that Burma should be considered a country of reference for the purpose of assessing the Applicant’s application for protection, and that if he were returned to Burma there was a real chance that he would face harm amounting to persecution including serious physical harm, arbitrary detention or imprisonment, and denial of access to basic services and severe economic hardship threatening his capacity to subsist. There was once more no suggestion of a risk of the Applicant being killed if he were to return to Bangladesh.

3. The Applicant attended a hearing before the Tribunal on 16 April 2015 with his registered migration agent. During the hearing, the Tribunal member raised inconsistencies which concerned her and the Applicant’s migration agent in post-hearing submissions by letter dated 22 April 2015 attempted to deal with those identified inconsistencies.

4. However, in the result the Tribunal affirmed the decision of the Delegate not to grant the Applicant a Protection visa.

5. At [11] and [15]-[17] of its Decision Record the Tribunal set out the claims made by the Applicant.

6. At [21] of its Decision Record the Tribunal noted that it had a number of concerns about the evidence from the Applicant, some aspects of which it found to be implausible and other aspects to be vague. It was also concerned about a number of inconsistences in the Applicant’s evidence.

7. At [19]-[42] of its Decision Record the Tribunal analysed the Applicant’s case and stated concerns about its vagueness, implausibility and contradictions.

8. In the result, at [43] the Tribunal came to the view that the Applicant was not a witness of truth, that he had fabricated his material claims for the purpose of obtaining a Protection visa, and that the Applicant was not a credible witness. At [44] the Tribunal found that it was not satisfied that he was a stateless Rohingya or of the Applicant’s claims which otherwise flowed from his claim to be a stateless Rohingya. Rather, the Tribunal found at [48] that the Applicant was a citizen of Bangladesh. It was not satisfied that the Applicant had a well-founded fear for Refugee Convention purposes if he returned to Bangladesh now or in the reasonably foreseeable future. Further, the Tribunal stated that it was not satisfied there was a real risk that if removed from Australia and returned to Bangladesh the Applicant would suffer significant harm and it affirmed the Delegate’s decision not to grant a Protection visa.

Grounds of attack on Tribunal decision in this Court

1. The Grounds of the Application filed in this Court on 16 December 2015 are as follows:

   1.The tribunal didn’t take my oral evidence carefully.

   2.The tribunal and Immigration both didn’t take seriously about my fear of being killed in the country.

   3.It’s my humble request that tribunal and Immigration both take my oral evidence seriously and consider my application and grant me a visa.

Consideration  

Ground 1

1. This Ground is completely unparticularised and the Applicant has not explained how he claims that his oral evidence was not carefully taken or considered by the Tribunal. He has not tendered any transcript of the Tribunal hearing and the Tribunal’s Decision Record does not support in the slightest any suggestion that the Tribunal might not have carefully taken and considered the evidence which the Applicant wished to give at the Tribunal hearing. His migration agent was present at the Tribunal hearing, and subsequently sent post-hearing submissions to the Tribunal.

2. In so far as this Ground could be taken to suggest that the Tribunal failed to deal with the case raised by the material or evidence before it and thereby constructively failed to exercise jurisdiction (and in this regard, see NABE v Minister for Immigration (No. 2) (2004) 144 FCR 1 at 17 [55] per Black CJ, French and Selway JJ), I consider that there is no evidence which would justify such a finding in this case.

3. Accordingly, Ground 1 fails.

Ground 2

1. Ms Blackadder, who appeared for the Minister, posited in her Written Submissions that the Applicant had never claimed that he would be killed if returned to Bangladesh. At the hearing, she confirmed to me that she had checked the Court Book and that there was nothing in it to suggest that any such claim was ever made. I have also checked the Court Book and cannot find any claim by the Applicant that he would be killed if he had to return to Bangladesh. In his Statutory Declaration of 10 January 2013 (referred to at [6]-[8] and [16] above) he claimed that he feared that he would “suffer more discrimination and hardship” if returned to Bangladesh and before the Delegate he had agreed that he had never been harmed in Bangladesh. The highest claim the Applicant ever made is of there being a real chance that he might face serious physical harm amounting to persecution if he returned to Bangladesh, as contended in his migration agent’s letter of 8 April 2015 (referred to at [16] above).

2. At [33] of the Tribunal’s Decision Record it was recorded that the Applicant gave evidence to the Tribunal that “he never had any problems with the Bangladeshi authorities”. Then at [40] the Tribunal records that it asked the Applicant what he thought would happen if he returned to Bangladesh and:-

   …he responded that his life would be finished. When asked why, he responded that his family have lost everything and if they find out he is returning to Bangladesh, they will be finished and he will be finished. When asked asked what he meant by ‘finished’, he responded that they are upset now and would be upset if he returns to Bangladesh. He stated that they may die. He stated that he does not know what will happen to him.

3. I accept the submission made on behalf of the Minister that at no point either before the Delegate or the Tribunal or indeed in the post-Tribunal submission of his migration agent (referred to at [17] above) did the Applicant ever claim that he had a fear of being killed in Bangladesh if he returned there, or killed in Burma for that matter. Certainly it could not possibly be said that such a claim of fear of being killed on return to either country was “a substantial, clearly articulated argument relying upon established facts” with which the Tribunal failed to engage: Dranichnikov v Minister for Immigration (1993) 197 ALR 389 at 394 [24].

4. Accordingly, Ground 2 fails.

Ground 3

1. This Ground seeks in part to replicate Ground 1 and otherwise invoke a merits review in this Court, which is not open. The jurisdiction of this Court is limited to considering only whether the Tribunal’s decision to refuse to grant the Applicant a visa is lawful under the Act and not invalid by reason of jurisdictional error including procedural unfairness.

2. Accordingly, Ground 3 fails.

Conclusion

1. In my view none of the Grounds relied upon by the Applicant are made good and the Application must be dismissed with costs.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Dowdy

Date:         21 December 2016