Cvo15 v Minister for Immigration

[2017] FCCA 813

FEDERAL CIRCUIT COURT OF AUSTRALIA

CVO15 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 813

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

Legislation:

Migration Act 1958 (Cth), s.36

Migration Regulations 1994 (Cth)

Cases cited:

AZU15 v Minister for Immigration and Border Protection (2016) 240 FCR 143

MZYXS v Minister for Immigration and Citizenship [2013] FCA 614
SZOBN v Minister for Immigration and Citizenship (2010) 119 ALD 260
SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774
SZTDT v Minister for Immigration and Border Protection [2016] FCA 631

SZUIJ v Minister for Immigration and Border Protection [2016] FCA 1574

Applicant: CVO15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3535 of 2015

Judgment of: Judge Dowdy

Hearing date: 16 June 2016

Delivered at: Sydney

Delivered on: 28 April 2017

REPRESENTATION

The Applicant appeared in person.

Counsel for the Respondents: Ms. A Wong

Solicitors for the Respondents: Mills Oakley

THE ORDERS OF THE COURT ARE AS FOLLOWS:

1. The Application filed in this Court on 30 December 2015 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3535 of 2015

CVO15

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 46 years, having been born on 27 January 1971.

2. By Application filed in this Court on 30 December 2015 he seeks to quash and have redetermined a decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal) dated 6 December 2015 which affirmed the decision of a Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister) dated 27 August 2014 refusing to grant to him a Protection (Class XA) visa (Protection visa).

Background

1. The Applicant arrived in Darwin from Bangladesh as an unauthorized maritime arrival on 28 March 2013. He completed an entry interview with the Department of Immigration on 7 April 2013.

2. The Applicant was then issued with a Bridging visa on 22 May 2013 and he subsequently applied for a Protection visa on 19 June 2013. His Bridging visa expired on 22 November 2013, rendering him an unlawful non-citizen.

Grounds for the Granting of a Protection Visa

1. A convenient summary of the grounds and criteria for the grant of a Protection visa can be found in the judgment of Wigney J in SZUIJ v Minister for Immigration and Border Protection [2016] FCA 1574 at [5]-[7] as follows:

   [5]The criteria for the grant of a protection visa are well known. At the time the appellant applied for a protection visa, s 36(2)(a) of the Migration Act 1958(Cth) provided that a criterion for a protection visa was that the appellant was a non-citizen in Australia in respect of whom the Minister was satisfied Australia had protection obligations under the Refugees Convention. In simple terms, Australia has protection obligations under the Refugees Convention in respect of a person who is outside their country of origin and who is unable or unwilling to avail themselves of the protection of that country, or to return there, on account of them having a well-founded fear of persecution based on reasons of race, religion, nationality, membership of a particular social group, or political opinion.

   [6]Section 36(2)(aa) of the Act provided an alternative criterion known generally as the complementary protection criterion. A person met the complementary protection criterion if the Minister was satisfied that Australia had protection obligations because the Minister had substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there was a real risk that the non-citizen would suffer significant harm.

   [7]The remaining subsections of s 36 and subdivision AL of the Act contained additional provisions about protection visas, including provisions that defined or explained various expressions used in s 36(2)(a) and (aa), such as “significant harm” and “persecution”.

Claims For Protection

1. In his statutory declaration made in support of his Protection visa application, the Applicant claimed to have been, along with his family, a long standing supporter and active member of the Bangladesh National Party (BNP). He claimed that his involvement with the BNP increased and that he became an official member of the BNP in 2010 and the Secretary of its Bankra Village branch in 2011.

2. He claimed that in 2012 a Secretary of the Shadipur Village branch of an opposing political party within Bangladesh, the Awami League (AL), was murdered by gunshot in Bankra Bazaar. The murder was investigated by an elite police unit known as the Rapid Action Battalion (RAB) which had a reputation for extra-judicial killings of “persons of interest”. 

3. He then attested that he learnt from villagers of Shadipur Village that he and about 10 other members of the BNP had been accused by AL members and a member of the victim’s family to have been involved in the murder of the Secretary of the Shadipur Village branch of the AL, and that he was on a “list of suspects”.

4. The Applicant claimed that upon learning of this, he fled his home and went into hiding at his cousin’s house about 2 kilometres away, but still within the same village. Whilst he was in hiding, the RAB were visiting his home and Bankra Bazaar and asking after his whereabouts. Fearing that he could no longer be safe anywhere in Bangladesh due to the RAB being active nationally, he fled the country with the assistance of a “people smuggler”. He claimed to have contacted family members since March 2013, who advised him that the RAB still enquire after his whereabouts.

5. The Applicant feared that if he returned to Bangladesh he would be physically assaulted, imprisoned and/or killed. He feared harm from the Bangladeshi authorities including the RAB, the police and supporters of the AL.

Decision of Delegate

1. The Applicant took part in an interview with the Delegate on 19 August 2014 in relation to his application for a Protection visa.

2. The Delegate was satisfied as a result of the interview that the Applicant was a supporter of the BNP and had been a member since approximately 2010 and that he had participated in some activities in support of the BNP locally in his village and that his family members were also supporters of the BNP.

3. However, in relation to his credibility, the Delegate was concerned with the vagueness and lack of detail in the Applicant’s oral evidence surrounding his involvement as a secretary in the BNP.

4. The Delegate was also concerned by the Applicant’s responses when asked about the circumstances regarding the murder of the Secretary of the Shadipur Village branch of the AL, and found that his responses were vague, lacking in detail and did not appear to genuinely reflect his own experiences.

5. Unfortunately for the Applicant, the Delegate did not accept that the Applicant was elected as Secretary of the Bankra Village branch of the BNP in 2011, that he was a suspect and implicated in any murder investigation or that he had come to the adverse attention of the Bangladeshi authorities or any group within Bangladesh.

6. In the result the Delegate was not satisfied that the Applicant was a person in respect of whom Australia had protection obligations under s.36 the Migration Act 1958 (Cth) (Act) and cl.866.221 of sch.2 to the Migration Regulations 1994 (Cth) and accordingly refused to grant to him a Protection visa.

Tribunal Hearing and Decision Record

1. The Applicant applied to the Tribunal on 8 September 2014 for a merits review of the Delegate’s decision.

2. The Applicant appeared before the Tribunal at a hearing on 4 December 2015 to give evidence and present arguments with the assistance of an interpreter in the Bengali and English languages.

3. By its decision of 6 December 2015 the Tribunal affirmed the Delegate’s decision not to grant to the Applicant a Protection visa. In short, the Tribunal did not find the Applicant to be a credible witness but rather was of the view that he had fabricated his material claims for the purpose of obtaining a Protection visa. It was concerned by a number of inconsistencies in his evidence, his lack of knowledge of the policies of the BNP and his failure to respond to inquiries made of him by the Tribunal at the hearing. The Tribunal did not accept that the Applicant was a supporter or member of the BNP, that he was the Secretary of the Bankra Village branch of the BNP or that he was a suspect in the murder of any member of the AL.

4. In particular, the Tribunal:-

   a)identified inconsistencies in the Applicant’s evidence in relation to when he started supporting the BNP (see [15] of Decision Record);

   b)found that the Applicant’s credibility was undermined by his lack of knowledge about the BNP. He was unable to accurately recall the principles of the BNP, the procedure to become a member or the party flag (see [16]-[20] of Decision Record);

   c)identified inconsistencies in the Applicant’s evidence in relation to when the Secretary of the AL was killed and when the Applicant became aware that he was a murder suspect himself (see [21] of Decision Record);

   d)identified inconsistencies in the Applicant’s evidence concerning where and how long he was in hiding before departing Bangladesh (see [22]-[25] of Decision Record); and

   e)had concerns regarding late new claims made by the Applicant at the Tribunal hearing, namely that he had been charged with murder and a warrant issued for his arrest (see [26]-[27] of Decision Record). In his Protection visa application and interview with the Delegate he had not mentioned the charge or warrant.

5. In the result the Tribunal was not satisfied that Australia had protection obligations to him either under s.36(2)(a) or s.36(2)(aa) of the Act and it affirmed the Delegate’s decision not to grant to him a Protection visa.

Grounds of Attack on Tribunal Decision in this Court

1. The first Ground for review relied upon by the Applicant in his Application was as follows:

   The applicant claims to fear serious harm in Bangladesh on the Conventional grounds of his actual or imputed political opinion in favour of the Bangladesh Nationalist Party. Administrative Appeal Tribunal made a jurisdictional error when it failed to use real test of persecution and harm according to the Migration Act.

2. The Particulars to Ground 1 essentially claimed that the Tribunal totally ignored the oral and written evidence given by the Applicant in support of his claims and that it misunderstood or misconstrued the evidence given by the Applicant.

3. Ground 2 was as follows:

   The Tribunal made a jurisdictional error when it discarded all the oral and written submission submitted by the Applicant in support of his claim without giving any solid evidence of cumulative credibility concern in the finding of reasons. The applicant claims he was denied procedural fairness and natural justice.

4. The Particulars to Ground 2 complained that the interpreter at the Tribunal hearing had not accurately interpreted issues raised by the Tribunal and had not translated accurately. It was claimed in the Particulars that the Tribunal intentionally asked many questions to confuse the Applicant and there was a further complaint that the Applicant was denied procedural fairness because the hearing was not conducted freely and fairly.

5. Ground 3 was as follows:

   The AAT failed to apply the correct test in relation to the complementary Protection Provision contained in section 36(2)(aa) of the Migration Act 1958. The AAT made a jurisdictional error when it did not follow Rules of Real Risk Test of persecution and harm.

6. The Particulars to Ground 3 asserted that the Tribunal totally discarded all the facts presented in oral and written evidence and again claimed that the Applicant was denied procedural fairness.

7. At the hearing the Applicant unfortunately declined to expand upon his three Grounds or make oral submissions in their support.

Consideration

Ground 1

1. Ground 1 asserts that the Tribunal raised or took into account irrelevant issues for the purpose of discrediting the Applicant and that it also ignored his oral and written evidence in support of his claims.

2. In my view this Ground is not made out and must fail. The Particulars claim that “the Tribunal raised several irrelevant issues to discredit the facts about the applicant’s involvement and position in the BNP party” but the Applicant does not identify these issues or meaningfully explain how his oral and written evidence was misunderstood or misconstrued by the Tribunal. This Ground simply argues with the findings of the Tribunal and seeks a merits review which is not available in this Court. The Decision Record of the Tribunal evidences factual and credibility findings which appear to have been rationally and logically made and were based upon facts and circumstances which were open to the Tribunal to consider and take into account. I cannot see that the Tribunal took into account irrelevant matters or that it did not comprehensively consider the Applicant’s claims. 

Ground 2

1. This Ground has two limbs. First it complains about the credibility findings of the Tribunal. It is of course important for the Tribunal to conduct a proper examination of a visa applicant’s claim and not to simply make blanket, reflex or exaggerated adverse credit findings: AZU15 v Minister for Immigration and Border Protection (2016) 240 FCR 143 at 145 [11] per Allsop CJ, Kenny and Bromwich JJ.

2. However, in this instance the Tribunal appears to have given proper consideration to the Applicant’s claims and relevant evidence and it rejected the Applicant’s claims to protection on the basis of factual findings. It gave rational reasons for that rejection and I cannot discern any arguable basis to find that the Tribunal’s reasons were affected by jurisdictional error. In my view, there is no evidence at all that the Applicant was denied procedural fairness or that the rules of natural justice were breached by the Tribunal.

3. The second limb of Ground 2 is the complaint about the interpreter. The principles applicable where there is an allegation of inadequate interpretation are sufficiently summarised for present purposes by North J in SZOBN v Minister for Immigration and Citizenship (2010) 119 ALD 260 at 267 [27]:

   [27]It is established that an appellant who alleges that there was inadequate interpretation amounting to a breach of the obligation contained in s 425(1) of the Act must show that:

   (a)The standard of interpretation at the Tribunal hearing was so inadequate that he or she was, effectively, prevented from giving evidence at the Tribunal; or

   (b)errors made by the interpreter at the Tribunal hearing were material to the conclusions of the Tribunal adverse to the appellant.

   Questions of fact and degree are involved, and a qualitative assessment must be made of the conduct of the Tribunal hearing as a whole: Appellant P 119/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 230 at [17] and [22] ; Tobasi v Minister for Immigration and Multicultural Affairs [2002] FCA 1050 ; VWFY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1723 ; and M175 of 2002 v Minister for Immigration and Citizenship [2007] FCA 1212 . The judgment in Perera v Minister for Immigration and Multicultural Affairs [1999] FCA 507 is often cited as one of the foundation authorities on the question of the adequacy of interpretation. That judgment should now be read in view of the recent academic criticism in A Hayes and S Hale, “Appeals on Incompetent Interpreting” (2010) 20 Journal of Judicial Administration 119, at 127.

4. However, the Applicant has not tendered a transcript of the Tribunal hearing, notwithstanding that the Consent Orders of 29 January 2016 specifically provided for any evidence of a Tribunal hearing to be presented as a transcript verified by affidavit. Further, the Applicant has not led any evidence from any witness or source which would enable this Court to embark upon a consideration of the standard of interpretation at the Tribunal hearing on 4 December 2015.

5. In other words, there is no evidence before the Court which could lead to a finding that the Tribunal hearing was infected by any inadequate interpretation or translation.

6. Ground 2 fails and must be dismissed.

Ground 3

1. This Ground again seems to essentially seek merits review of the Tribunal decision.

2. Nevertheless I will assume in the Applicant’s favour that he is asserting by Ground 3 that the Tribunal did not give proper consideration to his claim under the complementary protection criterion pursuant to s.36(2)(aa).

3. Understood in this manner, Ground 3 still fails. The Tribunal had wholly disbelieved the Applicant’s case and his claim for protection under the Refugees Convention. It would not have committed jurisdictional error merely if, when it came to deal with the complementary protection criterion, it referred to its previous findings of fact concerning claims to protection under the Refugees Convention: SZTDT v Minister for Immigration and Border Protection [2016] FCA 631 at [16] and [23] per Rares J agreeing with Robertson J in SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774 at [56]-[57].

4. This is precisely the course taken by the Tribunal. It stated at [34]-[36] of its Decision Record as follows:

   Are there substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk that he will suffer significant harm

   [34]The Tribunal has considered the applicant's claims under complementary protection.

   [35]In view of the above findings, the Tribunal is not satisfied that there is a real risk that the applicant will suffer significant harm for any of the reasons claimed if he returns to Bangladesh now or in the reasonably foreseeable future.

   [36]Having considered all of the applicant's claims, individually and cumulatively, and all the evidence Tribunal is not satisfied that the applicant will be arbitrarily deprived of life, the death penalty will be carried out on him, he will be subjected to cruel or inhuman treatment or punishment or he will be subjected to degrading treatment or punishment if he returns to Bangladesh now or in the reasonably foreseeable future.

5. It was no jurisdictional error for the Tribunal to take this approach. As Marshall J said in MZYXS v Minister for Immigration and Citizenship [2013] FCA 614 at [31] as follows:-

   [31]A fair reading of the Tribunal’s reasons for decision showed that it did not misapply or misunderstand the test for complementary protection claims. It applied the “real chance” test in determining whether there was a real risk that the appellant would suffer significant harm if returned to Nigeria. The finding of the Tribunal on its assessment of “real risk” is expressly linked to its findings on “real chance”. The Tribunal was entitled to rely on its finding that there was no real chance of the relevant harm alleged for Convention purposes in assessing whether there was a real chance of significant harm for complementary protection purposes, when the same essential claims and facts were being relied on in each aspect of the appellant’s case before the Tribunal…

6. Ground 3 fails and must be dismissed.

Conclusion

1. The Applicant has failed to establish any jurisdictional error including procedural unfairness in relation to the Tribunal’s decision and the Application must accordingly be dismissed.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Dowdy

Date:     28 April 2017