DBF16 v Minister for Immigration and Border Protection
[2016] FCCA 3291
•16 December 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DBF16 v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 3291 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal (Migration & Refugee Division) – whether the Tribunal failed to give appropriate weight to the documents provided – whether the Tribunal applied to identify the relevant law – no jurisdictional error identified – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5H, 5J(1)(a), 36(2), 438 |
| Cases cited: MZAFZ v The Minister for Immigration and Border Protection [2016] FCA 1081 |
| Applicant: | DBF16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2832 of 2016 |
| Judgment of: | Judge Street |
| Hearing date: | 16 December 2016 |
| Date of Last Submission: | 16 December 2016 |
| Delivered at: | Sydney |
| Delivered on: | 16 December 2016 |
REPRESENTATION
| The Applicant appeared in person. |
| Counsel for the Respondents: | Mr G Johnson |
| Solicitors for the Respondents: | Sparke Helmore Lawyers |
ORDERS
The show cause hearing is dispensed with.
The application is dismissed.
The Applicant pay the First Respondent’s costs fixed in the amount of $5,800.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2832 of 2016
| DBF16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for a Constitutional writ within the Court's jurisdiction under s.476 of the Migration Act1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 13 September 2016 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. The applicant arrived in Australia on 2 March 2001 on a Class TU subclass 560 (Student) visa valid until 13 April 2001. On 13 April 2001, the applicant was granted a class TU subclass 560 (Student) visa which was valid until 30 January 2002. On 29 January 2002, the applicant made an invalid application for a student visa. On 30 January 2002, the applicant applied for a Class TU subclass 573 (Student) visa.
On 26 April 2007, the applicant was sentenced for driving whilst disqualified and served a period of periodic detention. On 14 October 2008, the applicant's application for Class TU subclass 573 (Student) visa was refused. On 20 November 2008, the applicant’s Bridging visa A expired. On 21 November 2008, the applicant became an unlawful non-citizen in Australia. On 16 October 2015, the applicant was sentenced to 18 month and six days for driving whilst disqualified and for being under the influence of alcohol.
Materially, it was not until 26 February 2016, almost 15 years after the applicant arrived in Australia that the applicant applied for protection. The applicant claimed to fear harm because his family is politically connected and his father is a close friend of the Bangladesh National Party (“BNP”) leader. The applicant states his father supported the BNP during the election and also provided financial support. The applicant claims he started supporting the BNP while studying at a particular location. The applicant claims he was engaged in recruiting people for the BNP and that he was intimidated and harassed by the Awami League members. The applicant claimed that after he came to Australia, he continued to support the BNP and was involved in an Australian branch of the BNP.
The Delegate
The delegate raised with the applicant that the applicant was a low level worker with the Chatra Dal League (“CD”). The delegate did not accept that the applicant was involved in activities with the BNP in Australia. The delegate found the applicant was not a person of interest to the Awami League and that the applicant's father was not financially supporting the BNP. The delegate raised with the applicant his delay in applying for a protection visa and the substantial period during which he was unlawfully in Australia. The delegate found that the applicant was a low level worker with the CD. The delegate found the applicant has not been targeted by members of the Awami League. The delegate found that the applicant has not been active with the BNP in Australia.
The delegate was not satisfied that the applicant faces a real chance of persecutory harm on account of his political opinion or for any other Convention reason in the reasonably foreseeable future were the applicant to return to Bangladesh. The delegate was not satisfied there was a real chance of the applicant facing persecution for one or more of the reasons mentioned in s.5J(1)(a) of the Act in the receiving country. The delegate found that the applicant was not a refugee as defined in s.5H of the Act and that the applicant failed to meet the criterion under s.36(2)(a) of the Act.
The delegate was not satisfied there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Bangladesh there was a real risk that the applicant would suffer significant harm as required by s.36(2)(aa) of the Act. The delegate found that the applicant was not a person to whom Australia had protection obligations and refused to grant the applicant a protection visa in a decision dated 26 May 2016.
The Tribunal
The applicant applied for review on 2 June 2016. The Tribunal wrote to the applicant on 14 June 2016 and identified that having considered the material before the Tribunal, the Tribunal was unable to make a favourable decision on the information alone and the applicant was invited to attend a hearing on 30 June 2016. The applicant attended a hearing on that date and the Tribunal by further letter dated 1 July 2016, invited the applicant to attend a further hearing, which the applicant attended on 8 August 2016. The applicant was also invited by letter dated 9 September 2016 to attend a third hearing on 13 September of 2016.
The applicant attended those hearings to give evidence and present arguments. The Tribunal correctly identified the relevant law, which was included in an attachment identified in the Tribunal's reasons. The Tribunal identified the applicant's claims and evidence given at the respective hearings.
Consideration of the applicant’s credibility
In relation to the applicant's evidence, the Tribunal expressed credibility concerns and provided cogent reasons in paragraphs 60 to paragraph 95 of the Tribunal’s reasons in support of the adverse credibility findings. Those adverse credibility findings have not been the subject of any identified error. The adverse credibility findings by the Tribunal were open on the material before the Tribunal and cannot be said to lack and evident and intelligible justification.
The Tribunal made reference to the evidence given by the applicant's father during the second hearing alleging that after his son came to Australia the Awami League would visit him and make threats both in relation to his political activities and in relation to his son. The Tribunal refers to asking the father if those in the Awami League indicated that they knew the applicant was in Australia. The Tribunal's reasons states that the father indicated that they did not mention this and he would not tell them.
Consideration of the concerns with the applicant’s evidence
The Tribunal raised with the applicant at the hearing the delay of almost 15 years in applying for a protection visa in relation to the applicant's credit. That of itself was a cogent and logical ground in relation to the adverse credibility findings made by the Tribunal. The Tribunal found that the 15 year delay in seeking protection is significantly adverse to the applicant's claims. The Tribunal considered that there has clearly been untruthful evidence in relation to the Awami League members visiting the father and making threats following the applicant coming to Australia and then specifically indicating that they know the applicant is involved in BNP in Australia.
The Tribunal was not satisfied that those factors could be explained by poor memory of the applicant or the applicant suffering from depression. The Tribunal found the applicant did not explain the delay in seeking protection as a result of those issues. The Tribunal found the inconsistent evidence from the father had not been explained by the applicant due to poor memory. The Tribunal is not satisfied that the father was suffering from poor memory.
The Tribunal did accept that the applicant had had some involvement in the BNP/CD in Bangladesh. The Tribunal was not satisfied that the applicant was or is perceived as a leader. The Tribunal found that the applicant had embellished his claims to that effect. The Tribunal was prepared to accept that the applicant was subject to one attack due to his involvement with the BNP/CD and that the applicant was hospitalised, notwithstanding the failure to produce hospital records.
The Tribunal was prepared to accept that on one other occasion the applicant was slapped. The Tribunal was prepared to accept that the father complained to the police, who did not take action. The Tribunal did not accept that the applicant did not face any further harm after that incident because he was dropped off and picked up from college. The Tribunal found that the lack of subsequent attacks was because the applicant was not targeted for ongoing mistreatment by the Awami League. The Tribunal was of the view that the more serious attack and the slapping were isolated incidents.
The Tribunal was not satisfied that the father received visits from those seeking to harm or threaten the applicant, or to harm or threaten the father, either before the applicant came to Australia or after. The Tribunal was not satisfied that members of the Awami League, who wish to harm the applicant, have told the applicant's father that they know the applicant is in Australia and has been involved in the BNP here and that on that basis they wish to harm him. The Tribunal was not satisfied that the father has himself been threatened or extorted by the Awami League or a shop has been vandalised or that he has otherwise been harmed. The Tribunal made reference to a recent letter provided to the Tribunal by the BNP in Bangladesh purporting to corroborate the applicant's claims. The Tribunal took into account the late provision of the letter from the BNP and decided to give the letter limited weight in support of the applicant's claims.
The Tribunal was not satisfied that the applicant left Bangladesh due to the attacks that occurred as a result of adverse interests by the Awami League in the applicant or as a result of his involvement in the BNP. The Tribunal found that the applicant's key motivation for coming to Australia was to study. The Tribunal relied in this regard upon the substantial period during which the applicant had failed to make an application for a protection visa, having arrived in Australia. The Tribunal considered that the applicant has either concocted or exaggerated his claims of involvement in the BNP.
The Tribunal was prepared to accept that the applicant has had the most cursory involvement in the BNP in Australia. The Tribunal was not satisfied that the applicant was involved in the BNP prior to 2001 and the harm that he suffered, more than 16 years ago, provides a basis on which the applicant faces a real chance of serious or significant harm on return today. The Tribunal was not satisfied that the two incidents of harm demonstrate an ongoing adverse interest in the applicant, noting that the applicant remained in Bangladesh for seven months after the second attack. The Tribunal was not satisfied that the individuals from that period maintain an adverse interest in the applicant, such as to lead to the real chance of the applicant facing serious or significant harm.
The Tribunal was not satisfied the Awami League or anyone else in Bangladesh would have knowledge of the applicant's limited involvement in the BNP in Australia, such as to lead to the real chance of the applicant facing serious or significant harm on return to Bangladesh. The Tribunal found it was not satisfied that the applicant would be involved with the BNP or CD on return to Bangladesh. The Tribunal was not satisfied that the applicant would be politically involved to such an extent and for that reason, does not consider that the applicant faces a real chance of serious or significant harm as a result of participation in protests or demonstrations. The Tribunal was not satisfied the applicant would be politically involved to any additional extent such as to lead to real chance of him facing serious or significant harm.
Assessment of refugee criterion
The Tribunal found it was not satisfied there was a real chance the applicant was facing serious or significant harm due to the political connections of his father. The Tribunal was not satisfied the applicant has a well-founded fear or persecution for one of the reasons set out in s.5J(1) of the Act, for any of the reasons claimed or for any other reason.
Assessment of complementary protection criterion
The Tribunal was not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Bangladesh there was a real risk the applicant would suffer significant harm for reasons claimed or for any other reason. The Tribunal was not satisfied that the applicant is a person with respect to whom Australia has a protection obligation under s.36(2) of the Act. The Tribunal found that the applicant did not meet the criteria under s.36(2)(a) or s.36(2)(aa) of the Act.
Before this Court
On 10 November 2016, a Registrar of the Court made orders providing the applicant with an opportunity to file an amended application, affidavit evidence and submissions. No such documents were filed.
The grounds of the applicant’s application are as follows:-
1. The Tribunal constructively failed to exercise its jurisdiction;
Particular:
The applicant provided documents to the Tribunal to corroborate his claims. The Tribunal ultimately gave the document very little weight on the basis of credit findings. It was an error for the Tribunal to place no weight on the document without engaging to the contents of these documents. It was an error for the Tribunal to assess the applicant's credit without first assessing whether the substance of the documents corroborated his claims.
2. The Tribunal misconstrued the risk and fear of significant harm as set out in s36(2A) of the Migration Act 1958. The Tribunal construed erroneously (and narrowly) the existence of risk to life and fear of significant harm to the applicant upon his returns to Bangladesh.
3. There also some errors with the interpretation. Some of the sentence The Member misunderstood. Which led to total misunderstanding.
At the commencement of the hearing, the Court raised with Counsel for the first respondent about the issue raised in the first respondent’s submissions in relation to MZAFZ v The Minister for Immigration and Border Protection [2016] FCA 1081 (“MZAFZ”). This gave rise to an issue whereby the Court considered that the show cause hearing was no longer appropriate. The Court dispensed with the show cause hearing.
From the bar table, the applicant sought to explain why it was that the applicant was not harmed when the applicant was dropped off at college. The submissions from the applicant in relation to why he was not harmed when dropped off at college is in substance an invitation to this Court to engage in an impermissible merits review. The adverse findings by the Tribunal in relation to the applicant and why the applicant was not accepted and the absence of any further incidents were findings open to the Tribunal and cannot be said to lack an evident and intelligible justification. Nothing said by the applicant in relation to being picked up and dropped off at college identifies any jurisdictional error by the Tribunal.
Consideration of the applicant’s request to provide further material
The applicant also referred to the request made to the Tribunal to provide further material at the hearing on 13 September 2016. This was the third hearing before the Tribunal and the Tribunal noted that the applicant had provided no explanation for the failure to provide the supporting letter as promised from BNP Australia. The Tribunal noted that the applicant made reference to an earlier request of the Tribunal to have witnesses from BNP give evidence and the applicant asked for an opportunity for this to occur at a later point of time. The Tribunal declined this request, given that parts of the rationale for the second hearing was to hear evidence from such witnesses.
The Tribunal also took into account the failure of the applicant to provide supporting statements from BNP Australia representatives, despite the granting of many requests for extension and promised delivery of such statements, but without it eventuating. The Tribunal formed the view that the applicant had had an ample amount of time to arrange for witnesses or supporting statements. The refusal of the Tribunal to provide a further extension of time on 13 September 2016 cannot be said to lack an evident and intelligible justification. The Tribunal’s decision to proceed to determine the decision upon review, in circumstances where there had been already three hearings, was open to the Tribunal and was reasonable.
The applicant also took issue with the Tribunal’s finding that the applicant was a low-level worker. That again is an issue in respect of which the findings by the Tribunal were open and what was said by the applicant does not identify any jurisdictional error. From the bar table, the applicant sought to raise and expand upon the third ground in the application, contending that there was a problem with the interpreter in the evidence of the applicant’s father. It is apparent from the Tribunal’s reasons that before the Tribunal, the applicant sought to argue that the problem with his father’s evidence was due to his father’s memory. On the face of the material before the Court, no issue with the interpreter was raised before the Tribunal. There is no evidence before the Court to establish any material issue of incompetence of the interpreter or any misunderstanding by the Tribunal of the evidence that was adduced.
The applicant also raised the issue of presenting a BNP letter to the Tribunal which the Tribunal decided was one in respect of which it would place little weight on the letter. It was open to the Tribunal to determine what weight to give the letter and in particular, given the substantial period of time over which the applicant had delayed before making an application for protection. Counsel for the respondent also drew the Court’s attention to paragraphs 83 to 84 of the Tribunal’s reasons which it was submitted was inconsistent with the assertion of some problem in relation to the interpretation of the father’s evidence. I am not satisfied that there was any problem with the interpreter or the understanding of the evidence in relation to the applicant’s father by the Tribunal.
The applicant also raised concerns in relation to the opportunity to put on hospital records and his desire for the opportunity to do so. In this regard, the Tribunal accepted that the applicant was hospitalised and for the reasons already given it was reasonable for the Tribunal to determine the review following the third hearing. I am satisfied that the applicant had a genuine and meaningful opportunity to give evidence and present arguments. It was not unreasonable for the Tribunal to proceed to determine the decision without awaiting steps by which the applicant alleged he would be able to obtain hospital records.
The applicant also took issue with the Tribunal’s finding that the two incidents to which the applicant was exposed were isolated incidents. Again, this is in substance an invitation for this Court to engage in an impermissible merits review. The applicant requested a further opportunity to adduce material and the Court explained to the applicant that the court was not in a position to make fresh findings of fact or to grant a further opportunity on compassionate grounds.
The Court again explained to the applicant that it could only grant relief in circumstances where it was persuaded that there is a jurisdictional error and explained again that this meant that the Court had to be satisfied that the Tribunal’s decision was unlawful or unfair. Nothing said by the applicant from the bar table identified any jurisdictional error.
Consideration
In relation to Ground 1, it was a matter for the Tribunal to determine what weight to give to the documents provided by the applicant. There was ample material upon which the adverse findings in relation to the applicant’s credit were made. It was a matter for the Tribunal to determine whether the related document provided by the applicant corroborated the applicant’s claims. Ground 1 is in substance an invitation to this Court to engage in an impermissible merits review. Ground 1 fails to make out any jurisdictional error.
In relation to Ground 2, the Tribunal correctly identified the relevant law. There is nothing in the Tribunal’s reasons to support the proposition that the Tribunal misconstrued the statutory provisions in relation to significant harm. The adverse findings by the Tribunal in relation to the applicant’s allegations of significant harm were open on the material before the Tribunal. Ground 2 fails to make out any jurisdictional error.
In relation to Ground 3, the allegation of interpretation errors and misunderstanding by the Tribunal is not supported by any evidence. I am not satisfied that there was any material error by the interpreter or any misunderstanding by the Tribunal. Ground 3 fails to make out any jurisdictional error.
Conclusion
The first respondent raised in the first respondent’s submissions that this is a case where there was a certificate issued on 3 June 2016. Unlike the decision in MZAFZ, in this case, the material was the subject of that certificate was tendered at pages 184 to 192 of the Court Book. I accept the first respondent’s submission that the decision in MZAFZ is distinguishable from the present case.
The certificate in the present case covers two documents and there is no basis in the present case to conclude that the certificate was an invalid certificate. The first document refers to a disclosure decision checklist and the second is a record of compliance client interview conducted on 29 February 2016. Neither document was referred to by the Tribunal. Neither document was relevant to the reasoning of the Tribunal and it has not been identified, any way in which the respective documents could have given rise to any practical injustice in respect of the conduct of the review by the Tribunal.
I note that the first respondent also formally challenged the decision in MZAFZ. For the reasons given, the material in the present case is not material taken into account by the Tribunal or that could give rise to any basis upon which it could be said the applicant was denied procedural fairness. No jurisdictional error arises by reason of the s.438 certificate that was issued in the present case, which I accept was not provided to the applicant in the conduct of the review. The absence of the provision of that certificate or the supporting material caused no practical injustice. The application fails to disclose any jurisdictional error.
The application is dismissed.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Street
Date: 25 January 2017
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