Dja16 v Minister for Immigration

[2019] FCCA 3399

FEDERAL CIRCUIT COURT OF AUSTRALIA

DJA16 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 3399

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Protection (Class XA) visa – whether the Tribunal failed to comply with the requirements of s.424A of the Migration Act 1958 (Cth) – whether the Tribunal failed to comply with the requirements of s.425 of the Migration Act 1958 (Cth) – no jurisdictional error made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5AAA, 36, 424A, 425, 476

Applicant: DJA16

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3083 of 2016

Judgment of: Judge Street

Hearing date: 25 November 2019

Date of Last Submission: 25 November 2019

Delivered at: Sydney

Delivered on: 25 November 2019

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents: Ms A Zinn
Mills Oakley

ORDERS

1. The name of the first respondent is changed to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs” and the Court dispenses with the need for the filing of any further document in that regard.

2. Leave is granted to the applicant to file in Court a notice of address for service.

3. The application is dismissed.

4. The applicant pay the first respondent’s costs fixed in the amount of $5,400.00.

DATE OF ORDER: 25 November 2019

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3083 of 2016

DJA16

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 10 October 2016 affirming the decision of a delegate not to grant the applicant a Protection (Class XA) visa (“Protection visa”).

2. The applicant was found to be a citizen of Bangladesh and his claims were assessed against that country. The applicant was born in a particular village in the Jessore district in Khulna Province. The applicant departed Bangladesh in November 2012 on a Bangladeshi passport which contained his personal details and his photograph. The applicant arrived in Australia on 4 December 2012 without a passport in his possession. The applicant claimed that his passport was taken from him by an agent in Penang, Malaysia. After arriving in Australia, the applicant was the subject of an interview conducted by an officer of the Department on 26 December 2012.

3. The applicant applied for a Protection visa on 16 May 2013. The applicant claimed to fear harm on the basis that two of his sisters’ husbands are dead and the sisters came back to his family, and that is why the applicant left his family. The applicant also claimed that his father had a murder case put against him by a particular person, and that his father had a stroke and passed away.

4. The applicant also referred to an argument between his father and a local businessman regarding the purchase of some machines. The applicant claimed that one day after that argument, the local businessman was killed. The applicant claimed that he had been hiding since then because he was named in the murder case. The applicant alleged that the murder case is ongoing and that he would be hanged for murder if returned to Bangladesh. The applicant claimed that he fears arrest by the authorities and being falsely accused of murder.

5. The applicant advanced further claims that the local businessman’s family attributed his death to the applicant and his father. 

6. The delegate found that the applicant provided contradictory, inconsistent and unsatisfactory answers in relation to the issues explored by the delegate. The delegate referred to the entry interview identifying economic reasons for relocating to Australia and omitting the new claims concerning a murder case. The delegate found that the applicant was an unreliable witness. The delegate made adverse findings against the applicant. The delegate found that the applicant did not meet the criteria for the grant of a Protection visa.

7. The applicant applied for a review of the delegate’s decision on 26 September 2014. By letter dated 4 January 2016, the Tribunal invited the applicant to attend a hearing on 24 February 2016. The applicant appeared by way of video conference on that date to give evidence and present arguments.

8. On 19 August 2016, following the hearing, the applicant was sent a procedural fairness letter pursuant to s.424A of the Act in relation to information which would be the reason or part of a reason for affirming the decision under review. The applicant responded to the letter in writing on 13 September 2016.

9. In its reasons, the Tribunal identified the background to the application for review and the material which had been provided by the applicant. The Tribunal referred to the hearing which was conducted with an interpreter. The Tribunal also referred to the procedural fairness letter sent to the applicant on 19 August 2016 and the response provided by the applicant on 13 September 2016 which included medical reports and a preliminary investigation report. The Tribunal also referred to the applicant’s claimed fears of harm and set out the relevant law in an attachment to the Tribunal’s reasons. The Tribunal also referred to the applicant raising issues of concern to the Tribunal during the hearing. The Tribunal also referred in detail to the letter dated 19 August 2016, the substance of the applicant’s response and the applicant’s other evidence.

10. The Tribunal identified anomalies in the applicant’s evidence during the hearing and in response to the letter. The Tribunal referred to having considered the applicant’s explanations, with the inconsistencies and anomalies. The Tribunal took into account the applicant’s lack of education, illiteracy and the passing of years. The Tribunal also referred to not placing any weight on minor inconsistencies or omissions. The Tribunal, taking into account these factors, found the applicant not to be a truthful or reliable witness.

11. The Tribunal referred to the want of coherence and plausibility in respect of the applicant’s evidence. The Tribunal found the applicant to be evasive and unwilling to provide answers to simple questions or to give explanations for obvious anomalies.

12. The Tribunal referred to the applicant’s claims in relation to his father. The Tribunal referred to there being several versions of the applicant’s father’s history.

13. The Tribunal also referred to the applicant’s statements of what had occurred in the record of the applicant’s entry interview and then the applicant’s statutory declaration dated 16 May 2013 and his statement dated 21 July 2014. The Tribunal found that the statements in these two documents were inconsistent and had not been satisfactorily explained by the applicant.

14. The Tribunal also referred to the inconsistent evidence in relation to the passing away of the applicant’s father as not being explained. 

15. The Tribunal also referred to medical reports provided by the applicant’s representative. The Tribunal found these medical reports to be contradictory and unreliable. The Tribunal took this into account in respect of the applicant’s credibility The Tribunal also took into account the prevalence of false documents in Bangladesh.

16. The Tribunal found that the applicant had been evasive in his evidence. The Tribunal found that there were significant inconsistencies in the applicant’s evidence which had not been satisfactorily explained by the applicant. The Tribunal did not accept that there had been any misinterpretation which explained the inconsistencies in the medical documents provided. The Tribunal found the applicant not to be a credible witness.

17. The Tribunal referred to the submissions advanced in relation to the applicant’s reliability. 

18. The Tribunal accepted that the applicant’s father was charged with a criminal offence and imprisoned for over one year before being released on bail. The Tribunal also accepted that, because of the criminal charge against the applicant’s father, the applicant’s family had difficulties of a financial nature.

19. The Tribunal did not accept that the applicant has been charged with the murder of the local businessman as claimed. The Tribunal referred to the absence of any mention of being falsely implicated in the alleged murder in the applicant’s first interview. The Tribunal referred to exploring with the applicant the implausibility in respect of his evidence concerning the alleged attack, concerns in respect of the applicant’s ability to remember a particular date which he could not earlier remember and why it took so long for the applicant to leave Bangladesh. 

20. The Tribunal referred to the submissions advanced in relation to the applicant’s credibility and the documentation.

21. The Tribunal referred to country information. The Tribunal considered that if the applicant had been charged with a cognisable offence such as murder, the police would have taken steps to arrest the applicant. The Tribunal found that it was not plausible that the police would not have investigated the applicant’s whereabouts. The Tribunal referred to the preliminary investigation report and placed no weight on the document supporting the applicant’s claims that he had been falsely charged with murder in 2012.

22. The Tribunal referred to the applicant’s use of his own passport. The Tribunal found that the fact that the applicant had a passport issued to him and departed through the international airport supports the finding that the applicant was not charged with murder at the time that he left Bangladesh in November 2012. The Tribunal did not accept that the applicant had been falsely charged with murder and did not accept that he would face this charge if he returned to Bangladesh now or in the immediate future.

23. The Tribunal also referred to the applicant’s inconsistent evidence in relation to his brother, and referred to the submissions advanced in respect of the inconsistencies.

24. The Tribunal referred to the applicant’s claims. The Tribunal did not accept that the applicant was falsely implicated in the charge of murder. The Tribunal did not accept that there is any outstanding murder charge against the applicant in Bangladesh. The Tribunal also did not accept that the Bangladeshi authorities would have any adverse interest in the applicant if he returned to Bangladesh now or in the reasonably foreseeable future.

25. The Tribunal found that the applicant left Bangladesh for financial reasons. The Tribunal did not accept that if the applicant returned to Bangladesh now or in the reasonably foreseeable future, the applicant would face a real chance of persecution for reasons of being a member of a clan or a particular social group, being a person falsely accused of murder in Bangladesh or for any other reason in the Refugee Convention 1951 (“the Convention”).

26. The Tribunal was not satisfied that the applicant has a well-founded fear of fear of persecution for any Convention related reason. The Tribunal found that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Bangladesh, there is a real risk the applicant will suffer significant harm.

27. The Tribunal found that the applicant did not meet the criterion in ss 36(2)(a) or 36(2)(aa) of the Act. Accordingly, the Tribunal affirmed the decision under review.

Before the Court

1. These proceedings were commenced on 9 November 2016. On 16 March 2017, a Registrar of the Court made orders providing the applicant an opportunity to file an amended application, affidavit evidence and submissions. The applicant handed up submissions to the Court today which are marked Exhibit B but no other document has been filed.

2. At the commencement of the hearing, the Court explained to the applicant the nature of the hearing and the applicant confirmed that he understood the nature of the hearing as explained by the Court. 

3. From the bar table, the applicant alleged that, when he arrived in Australia, he had been in detention and had been the subject of deprivation of food. This was clearly an explanation seeking to explain the omission from the applicant’s interview in respect of the applicant’s credibility assessment by the Tribunal. The applicant’s credibility was clearly raised by the Tribunal in the course of the hearing as well as by the procedural fairness letter sent to the applicant on 19 August 2016. The adverse credit findings were open to the Tribunal for the reasons summarised above.

4. The applicant’s explanation for the omission is, in substance, an invitation to this Court to engage in merits review. This Court has no power to review the merits.

5. Nothing said by the applicant from the bar table identified any jurisdictional error.

The grounds  

1. The grounds in the application are as follows:

   1. The Tribunal failed to comply with the requirements of s424A of the Migration Act 1958 in making decision of the applicant's review application.

   PARTICULARS:

   i. The Tribunal failed to determine well-founded fear of the applicant that he is likely to face in his reasonably foreseeable future upon return to his country of origin.

   ii. The Tribunal relied on any or all of the information in assessing and making decision of the applicant's application rather than focusing as to why the applicant arrived in Australia by boat risking his life in the ocean and applied for his protection visa. The tribunal ignored the fact that there was significant risk that the applicant would have suffered upon his return to his country of origin.

   iii. The Tribunal made its decision in a conventional way without satisfying the provisions of Migration Act 1958.

   iv. The Tribunal hearing and decision contained huge procedural unfairness in deciding the applicant's review application. The tribunal asked questions to the applicant not related to the refugee's convention or even beyond the Migration Act definition of refugees. The tribunal conducted cross questioning to the applicant for a lengthy period oftime when some of the questioning was irrelevant to the applicant's claims of his protection visa application.

   v. The tribunal made its fmdings without any evidence or verification rather in a conventional way in rejecting the applicant's protection visa claims which constitutes a non- compliance of s424A of the Migration Act 1958.

   vi. Subsection 424A (1) (b) required the tribunal to ensure, as far as was reasonable practicable that the applicant understood as to why the information and questions were relevant to the review applicant for the purpose of s91R (3) and s36 (2) (a a), and the consequences of being relied on in affirming the decision that is under review and the tribunal failed to do so and therefore committed a jurisdictional error.

   2. The tribunal failed to comply with the requirements ofs425 ofthe Migration Act 1958 in making decision of the applicant's review application.

   PARTICULARS:

   The tribunal made its findings without any sound basis or evidence in rejecting the review applicant's witness and claims of his protection visa application as not credible and such an act of the Tribunal constitutes breach of s425 of the Migration Act 1958.

Ground 1

1. In relation to ground 1, no specific information has been identified enlivening any obligation under s.424A of the Act. To the extent that the Tribunal in its reasons referred to country information, that is information which does not enliven any obligation because of the provisions under s.424A(3)(a) of the Act. 

2. The applicant’s assertion in particular (i) of a failure to find that he was the subject of a well-founded fear of persecution is, in substance, a disagreement with the adverse finding. Particular (i) does not identify any information enlivening an obligation under s.424A of the Act or identify any jurisdictional error.

3. In relation to particular (ii), the applicant disagrees with the Tribunal taking into account information which came at the time of the applicant’s arrival. It is apparent that the Tribunal took into account more than what occurred at the applicant’s arrival in assessing the applicant’s credit. Further, the information concerning the entry interview was identified in the delegate’s decision provided to the Tribunal in the application for review and accordingly does not enliven any obligation under s.424A because of s.424A(3)(b).

4. The credit issues referred to above cannot be said to be trivial or insignificant. The adverse credit findings were open to the Tribunal for the reasons given by the Tribunal.

5. It is also not correct to suggest, as particular (ii) advances, that the Tribunal ignored the criteria in respect of complementary protection. It is apparent that the Tribunal made adverse findings in that regard. Further, nothing in particular (ii) identifies any information enlivening any obligation under s.424A of the Act.

6. Particular (iii) appears to assert a misapprehension, misapplication or misunderstanding of the relevant law. The relevant law was correctly identified in an annexure to the Tribunal’s reasons. On the face of the Tribunal’s reasons, there is no basis to find that the Tribunal misunderstood or misapplied the relevant law. Nothing in particular (iii) identifies any information enlivening an obligation under s.424A of the Act.

7. In relation to particular (iv), the applicant alleges unfairness because of what was said to the unrelated questions and which the applicant contended to be irrelevant. No transcript of the Tribunal hearing has been tendered by the applicant. On the face of the Tribunal’s reasons, it is apparent that the Tribunal raised its concerns in respect of the credibility issues with the applicant and that the applicant had a real and meaningful hearing.

8. The Tribunal’s reasons reflect an active intellectual engagement with the applicant’s claims and evidence, including the submissions provided in answer to the procedural fairness letter. The applicant’s belief that the Tribunal’s questions were not related to the issues, or that the same were irrelevant, is not supported by any evidence. It was open to the Tribunal to test the applicant’s credibility. The Tribunal was required to raise the material issues of concern with the applicant in the context of the hearing. Nothing in particular (iv) identifies any information enlivening any obligation under s.424A of the Act. 

9. In relation to particular (v), the applicant alleges that there were findings made without any evidence. The Tribunal’s reasons clearly reflect a comprehensive review of the evidence before the Tribunal and the making of adverse findings which were open to the Tribunal. The proposition that the Tribunal’s findings were made without evidence is unsupported. The assertion that the Tribunal had to verify matters misunderstands the applicant’s obligation under s.5AAA of the Act. The proposition that the adverse credibility findings were matters enlivening an obligation under s.424A of the Act misunderstands the statutory provision. Nothing in particular (v) identifies any jurisdictional error. 

10. In relation to particular (vi), insofar as any of the information in the procedural fairness letter engaged an obligation under s.424A of the Act, the letter on its face complied with the requirements of s.424A of the Act, including subs (1)(b), of the Act. Further, it is apparent that the application responded in detailed submissions to the procedural fairness letter and the applicant’s submissions were taken into account by the Tribunal in its adverse findings. Nothing in particular (vi) identifies information enlivening any obligation under s.424A of the Act. 

1. No jurisdictional error is made out by ground 1. 

Ground 2

1. In relation to ground 2, the applicant alleges that there was a breach of s.425 of the Act. On the face of the evidence before the Court, the Tribunal complied with its statutory obligations in inviting the applicant to attend a hearing. On the face of the Tribunal’s reasons, the applicant had a real and meaningful hearing. The adverse findings by the Tribunal were dispositive of the applicant’s claims and did not give rise to any contravention of s.425 of the Act. The rejection of the applicant’s credit on issues raised with the applicant and on which the applicant was on notice are not matters which could be said to give rise to any breach of s.425 of the Act. It is apparent that the applicant’s credibility was in issue as a result of the delegate’s decision. It is also apparent from the Tribunal’s reasons that the Tribunal explored the credibility concerns with the applicant in the course of the hearing, as well as in the s 424A procedural fairness letter. Nothing in ground 2 makes out any jurisdictional error.

WRITTEN SUBMISSIONS

1. The applicant’s written submissions referred to the substance of grounds 1 and 2 but do not advance any further argument that supports any error by the Tribunal in the conduct of the review or any non‑compliance with the requirements of s.424A or s.425 of the Act. The reference to the applicant being an unauthorised maritime arrival is an apparent mistake picked up by the applicant from the first respondent’s written submissions and does not identify any relevant error by the Tribunal. Nothing in the applicant’s written submissions identifies any jurisdictional error.

2. As the application fails to make out any jurisdictional error, the application is dismissed.

I certify that the preceding forty-seven (47) paragraphs are a true copy of the transcript of the published oral reasons for judgement of Judge Street delivered in open Court on 25 November 2019 and the parties were provided sealed copies of the Court’s orders

Associate: 

Date:  13 February 2020