CSS15 v Minister for Immigration

[2018] FCCA 2103

FEDERAL CIRCUIT COURT OF AUSTRALIA

CSS15 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2103

Catchwords:
MIGRATION – Protection visa – application for review of Tribunal’s decision to affirm delegate’s decision to not grant a protection visa – Tribunal grounded its decision on identified credibility concerns – Court hearing impeded by quality of interpreting services – matter relisted for further hearing – impermissible merits review – no jurisdictional error – application for judicial review dismissed.

Legislation:

Migration Act 1958 (Cth), s.65

Cases cited:

BZAID v Minister for Immigration and Border Protection [2016] FCA 508
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142
Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297

Applicant: CSS15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2807 of 2015

Judgment of: Judge A Kelly

Hearing date: 28 April 2017

Date of Last Submission: 28 April 2017

Delivered at: Melbourne

Delivered on: 15 August 2018

REPRESENTATION

The Applicant: In person

Counsel for the Respondents: Mr Cunynghame

Solicitors for the Respondents: Sparke Helmore Lawyers

ORDERS

1. The application be dismissed.

2. The applicant pay the costs of the first respondent fixed at $5,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2807 of 2015

CSS15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. By application filed on 17 December 2015, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (AAT) made on 4 December 2015, affirming a decision of a delegate of the first respondent (Minister) not to grant him a Protection (Class XA) visa under s 65 of the Migration Act 1958 (Cth) (Act).

Background

1. The applicant who is a Bangladeshi national aged 28 years, first arrived in Australia on 26 July 2012 as an irregular maritime arrival.

2. On 21 November 2012, the applicant applied for a protection (Class XA) visa. The applicant was assisted by a registered migration agent in making his application.

3. By his statutory declaration, the applicant claimed to fear harm from the Muslim majority in Bangladesh on account of his Hindu religion.

4. On 4 June 2013, the applicant attended an interview to discuss his visa application and claims for protection, doing so with the assistance of a Bengali interpreter.

5. On 1 October 2013, the delegate refused the visa application. The delegate found that the applicant was not a person to whom Australia owed protection obligations.

6. On 4 October 2013, the applicant, with the assistance of a registered migration agent, lodged an application with the then Refugee Review Tribunal for a review of the delegate’s decision.

7. On 17 December 2014, the applicant was invited to attend a hearing before the Tribunal on 20 February 2015 to give evidence and present arguments relating to the issues arising in his case. The applicant appeared at the hearing and was represented by his migration agent.  The applicant was assisted by a Bengali interpreter.

8. On 18 August 2015, the applicant was notified by the Tribunal that a different Member would finish the review.

9. On 20 August 2015, the applicant was invited to attend a further hearing before the reconstituted Tribunal on 17 November 2015. The applicant appeared at that hearing, again being represented by his migration agent and assisted by a Bengali interpreter. The applicant’s migration agent filed detailed submissions.

Tribunal Decision

1. On 4 December 2015, the Tribunal made a decision affirming the decision of the delegate not to grant the applicant the visa. The Tribunal provided a statement of reasons for its decision (Reasons).

2. The Tribunal found that the applicant did not have a well-founded fear of persecution and would not face a real risk of significant harm upon his return to Bangladesh.  In arriving at these conclusions, the Tribunal considered the submissions of the applicant’s migration agent together with the applicant’s evidence and country information obtained from the Department of Foreign Affairs and Trade and other sources, including the applicant’s migration agent.  It made the following findings.

Religion

1. The Tribunal did accept that, based on country information, there was sporadic societal violence against Hindus in Bangladesh. Nonetheless, the Tribunal found that Hindus were not subject to high levels of ongoing violence or harassment or extortion. Rather, as the Tribunal found, country information indicated that Hindus were able to practice their religion without interference, and that the government provided them with protection against land grabs.

2. The Tribunal did not accept that the applicant had been specifically targeted by the Muslim population in Bangladesh in the past. It found that the applicant had fabricated and exaggerated most of the personal circumstances and claims that he advanced before it.

3. In particular, the Tribunal did not accept that the applicant had been attacked four or five times or that he had been threatened with death if he reported incidents to the police.  Nor did it accept that Muslims had come to his home, asking him for money.

Confiscation of property

1. The Tribunal was prepared to accept that the applicant’s father may have been involved in a property dispute.  However, it did not accept that the applicant had been attacked or abused because of this or that he could not avail himself of court proceedings in Bangladesh. In those circumstances, the Tribunal did not accept that the applicant was of adverse interest to anybody when he left Bangladesh.

Political opinion

1. The Tribunal accepted country information that indicated election campaigns in Bangladesh were accompanied by violence. It did not, however, accept that such violence supported a conclusion that there was a real chance that the applicant would be imputed with a political opinion. Nor did it accept that the applicant or his family had been pressured to vote for specific candidates in such elections.

Failed asylum seeker

1. The Tribunal found that the applicant had not left Bangladesh either illegally or by boat. Rather, the applicant had lawfully travelled from Bangladesh to Malaysia using his own passport before then coming from Malaysia to Australia. The Tribunal did not accept, in those circumstances, that the applicant would be arrested or prosecuted for having left Bangladesh illegally.

2. Based upon the country information available to it, the Tribunal did not accept that there was a real chance the applicant would come to the adverse attention of authorities because he had made an application for protection in Australia.

Complementary Protection

1. The Tribunal relied upon its anterior findings as set out above in concluding that the applicant did not face a real chance of serious harm and in finding that it was not satisfied the applicant faced a real risk of significant harm.

Procedural History

1. On 17 December 2015, the applicant filed an application for judicial review of the Tribunal’s decision made on 4 December 2015.

2. The application was supported by an affidavit sworn by the applicant on 16 December 2015 to which he exhibited a letter from his lawyers dated 7 December 2015 together with the Reasons and the Tribunal’s notification of its decision.  Otherwise, the affidavit did not adduce any further evidence in support of the application for review.

3. The letter from the applicant’s lawyers that was exhibited to the affidavit provided certain advice with respect to the findings of the Tribunal, together with advice as to his options.  One of the options of which he was advised was that he might seek judicial review of the decision of the Tribunal.  The letter also informed the applicant of the possibility that he might obtain legal aid and an assessment of the review decision.  Nothing further was said in the course of the hearing as to whether the applicant had sought or obtained such legal advice in the period December 2015 to the date of the hearing.

4. By a Response filed on 23 December 2015, the Minister opposed the making of the order sought by the application.  In substance, the Response advanced the following grounds in defence of the application. First, it was said that the application for judicial review did not provide any particulars of a legal ground of review.  Secondly, it was said that the application invited this Court to undertake a review of the merits of the Tribunal’s decision.  It was contended that it was no part of the function of this Court to engage in a fact-finding consideration of the merits of the applicant’s case, citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 272; NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [10]. Thirdly, it was contended that the application did not establish or identify any jurisdictional error in the decision of the Tribunal.

5. On 25 May 2016, orders were made by consent regulating the interlocutory steps which might be taken in advance of a final hearing of the application.  Relevantly, the consent orders afforded the applicant an opportunity to file any amended application, including any additional grounds of review, with complete particulars of each ground, any affidavits and written submissions.

6. The matter was listed for hearing on 6 April 2016.  In the period between the making of those consent orders and the hearing in April 2017, the applicant did not file any amended application or additional grounds of review, any affidavit or any written submissions.

7. The applicant’s principal language is Bengali.  He is of the Hindu faith. The Reasons together with the grounds of the application make it plain that it was central to the applicant’s grounds of review, both before the Tribunal and this Court, that Bangladeshi persons of the Hindu faith are subjected to harm by Bangladeshi Muslims who are said to comprise the majority of the Bangladeshi population.

8. The Court made available to the applicant at the hearing on 6 April 2017 the services of an interpreter apparently fluent in the Bengali dialect.  The application on 6 April 2017 was relatively brief. It later came to the attention of the Court that the interpreter who attended with the applicant at the hearing on 6 April 2017 was not of the Hindu faith.  The applicant contended that no interpretation services had, in substance, been provided to him during the hearing on 6 April 2017.

9. In the circumstances described above, the Court, on its own motion, listed the matter for further hearing. The further hearing was conducted on 28 April 2017. On that date, the Court made available for the applicant the services of an interpreter. On this occasion the interpreter was also of the Hindu faith. At the commencement of the hearing on 28 April 2017, the applicant confirmed the matters that I have described at [28] above. The applicant also confirmed that the interpreter providing translation services to him on 28 April 2017 was providing interpretation services to a standard which was to his satisfaction.

10. I decided that as a matter of procedural fairness it was necessary to allow the applicant another opportunity at a further hearing to make submissions upon his application with the use of an interpreter who was the same ethnicity and religious faith as the applicant: see SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142 at [5]-[25] (Allsop CJ), [39]-[48] (Flick J); [65]-[75] (Robertson J); BZAID v Minister for Immigration and Border Protection [2016] FCA 508, [50]-[54] (Edelman J).

11. As to the invitation offered to him by the Tribunal to corroborate his complaint with respect to the practice of Bangladeshi Muslims to take the lands of Hindus, the applicant contended that the majority of the Bangladeshi population was Muslim and that there would be no newspaper reports of this practice in Bangladesh.  He said that his family had been forced to give away land but that his family at present had a house and land where they lived in a suburb of Dhaka, the capital of Bangladesh.

12. The applicant likewise contended that because the majority of the Bangladeshi population was Muslim, so too was the majority of the Bangladeshi police force.  He said that there was no point in complaining to the police about the oppression faced by Hindus at the hands of Muslims.  He said that if one did complain to police, one faced a beating at the hands of those police.

13. The applicant’s request of this Court was that his application be considered with compassion.

14. The first respondent relied upon its detailed written submissions filed on 23 March 2017.

15. Counsel for the Minister submitted that the matters raised by the applicant orally on the hearing of his application on 28 April 2017 were matters that, consistently with the Minister’s Response, addressed the merit of the application and were matters within the province of the Tribunal, it not being open to the Court to conduct a merits review.

16. Insofar as the applicant addressed the issue of country information, it was submitted for the Minister that such country information had in fact been considered by the Tribunal. Attention was drawn to the Reasons at [25]. It was further submitted that it was open to the Tribunal to consider the country information provided to it by DFAT and to make the decision which it did in relation to issues addressed from that country information.

17. As the applicant was self-represented before me, I have re-examined the Reasons and materials comprising the Court Book for myself.

18. The grounds of review state as follows:

    I arrived in Australia on boat to seek asylum and was put in detention centres across Australia.  I made an application for a refugee visa to seek asylum and protection against the physical violence I and my family has endured while living in Bangladesh.  Not only physical violence, there has been threats made out against me and my family by hardline lslamists threatening to kill me and my family.  They have snatched our lands from us and we survive totally at the mercy of them. We absolutely at no freedom to practice our faith, our religion and also our way of life.  Despite having undergone such an adverse experiences and having a real threat of being killed/murdered upon my return to Bangladesh especially when the perpetrators of the violence know that I have once fled Bangladesh.

    I consider that my application was not judged/assessed while keeping the real, currently prevalent, grass root level situation in Bangladesh. Superficially and also the situation projected by the Bangladesh government the situation seems to be calm and controlled whereas the reality is altogether different.  The real situation is very threatening and it is in fact out of control where the local police also fail to provide the required protection from these element s. The situation throughout rural Bangladesh is similar and it is no less different in the capital Dhakha.

    I request your authority for a re-consideration of my application not on the basis of reports despite admitting that there has been societal violence towards the Hindus at the hand of Muslims. The Tribunals findings about the lands being returned to Hindus is absolutely false it is again superficial where the lands are actually cultivated by the Muslims who confiscated it at the first place. Hindus are threatened on a daily basis and also my family suffer the same fate and have been threatened that if we approach police they will kill us. Moreover, if my family ever go to police nothing can be expected from them as they themselves share the same view unofficially.

19. In my view, the reasons confirm that the Tribunal carefully and comprehensively considered the applicant’s claims to fear harm on the basis of his religion and imputed political opinion and upon the evidence which he had provided in support of those claims.  Ultimately, the Tribunal was not satisfied that the applicant faced a well-founded fear of persecution or real risk of significant harm.  The Tribunal grounded its decision on identified credibility concerns, including inconsistency of the applicant’s claims with country information. Those findings were open to the Tribunal for the reasons it gave.

20. Inasmuch as the applicant took issue with the Tribunal’s reliance on country information, it is well-established that it was a matter for the Tribunal to identify such material as it found relevant to its reasoning and to give such material the weight it considered appropriate: see Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297, [5]-[7] RD Nicholson J, (Kiefel and Downes JJ agreeing); Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 41 (Gibbs CJ, Mason, Brennan, Deane and Dawson JJ).

21. In my view, the applicant was asking the Court to undertake a review of the merits of the Tribunal’s decision and its assessment of the credibility of the applicant’s claims.  This is not an appropriate basis on which to challenge the Tribunal’s decision by way of judicial review: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 272 (Brennan CJ, Toohey, McHugh, Gummow and Kirby JJ). It is for the applicant to identify jurisdictional error in the Tribunal’s decision. The applicant’s grounds of review do not support a conclusion that there is jurisdictional error in the Tribunal’s decision and from my own examination of the Reasons and materials comprised in the Court Book, no such error is otherwise apparent in the Tribunal’s decision.

22. The application for judicial review must be dismissed.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge A Kelly

Date: 15 August 2018