DMJ16 v Minister for Immigration

[2019] FCCA 3507

FEDERAL CIRCUIT COURT OF AUSTRALIA

DMJ16 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 3507

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Protection (Class XD) visa – whether the Tribunal denied the applicant procedural fairness – whether the Tribunal misapplied the relevant law – whether a fair-minded lay observer might reasonably apprehend that the Tribunal might not bring an independent and impartial mind to the determination of the matter on its merits – no jurisdictional error made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 45AA, 423A, 424AA, 430, 438, 476

Applicant: DMJ16

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

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3206 of 2016

Judgment of: Judge Street

Hearing date: 4 December 2019

Date of Last Submission: 4 December 2019

Delivered at: Sydney

Delivered on: 4 December 2019

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents: Mr J Pinder
MinterEllison

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. The application is dismissed.

3. The applicant pay the first respondent’s costs fixed in the amount of $5,600.00.

DATE OF ORDER: 4 December 2019

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3206 of 2016

DMJ16

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 25 October 2016 affirming the decision of a delegate of the first respondent (“the Delegate”) not to grant the applicant a Protection (Class XD) visa.

2. The applicant was found to be a citizen of Bangladesh, and his claims were assessed against that country. The applicant was found to be a Sunni Muslim of Bengali ethnicity who was born in a particular village in Munshiganj.

3. On 6 May 2013, the applicant arrived in Australia as an irregular maritime arrival. On 7 August 2013, the applicant applied for a permanent Protection (Class XA) visa, however, as a result of s.45AA of the Act, the application was taken to have been an application for a temporary Protection (Class XD) visa (“Protection visa”).

4. The applicant claimed to fear harm, in summary, by reason of members of the Awami League from his village seeking to extort money from his family and, as a result of a refusal to provide money, the Awami League burnt their car. The applicant alleged that his family was targeted because they had a flourishing business and had a lot of money. The applicant alleged that the Awami League members threatened to kill the applicant and his family. The applicant also alleged that he was targeted because he was the eldest child.

5. In the applicant’s statutory declaration, the applicant identified that he claimed he had been kidnapped by Awami League members and taken to an unknown location and detained for three days. During this time, the applicant alleged that he was threatened. The applicant alleged that he was released when his father undertook to pay a sum of money. The applicant alleged that the money was not paid and so he fled his village and departed Bangladesh. The applicant alleged that his father closed the business. The applicant alleged that his father continued to receive demands and had received death threats in respect to the applicant.

6. The applicant also claimed to fear harm because his family was associated with and supported the Bangladesh National Party (“BNP”).

7. On 11 May 2015, the Delegate found that the applicant failed to meet the criteria for the grant of a Protection visa. The Delegate made the following adverse findings.

8. The Delegate was not satisfied that the applicant or his father were the subject of demands for money from the Awami League or any other person.

9. The Delegate was not satisfied that the applicant was kidnapped by members of the Awami League or any other person.

10. The Delegate was not satisfied that the applicant and his family are BNP supporters or perceived to be BNP supporters.

11. The Delegate was not satisfied that the applicant fears harm because he comes from a well-known family.

12. The Delegate was not satisfied that the applicant fears harm because his family refused to pay money to the Awami League.

13. The Delegate was not satisfied that the applicant fears harm because he and his family are perceived to be supporters of the BNP.

14. The Delegate was not satisfied that the applicant has a well-founded fear of persecution for any 1951 Refugee Convention-related reason.

15. On 14 May 2015, the applicant applied to the Tribunal for review of the Delegate’s decision. By letter dated 26 August 2016, the Tribunal invited the applicant to attend a hearing on 4 October 2016. Prior to the hearing, the applicant’s migration agent provided submissions to the Tribunal. The applicant appeared at the hearing before the Tribunal on 4 October 2016 to give evidence and present arguments. The applicant was represented on that occasion by his migration agent.

16. The Tribunal in its reasons identified the background to the application for review. The Tribunal set out the relevant law and summarised the applicant’s claims and evidence. The Tribunal referred in detail to the applicant’s submissions provided on 27 September 2016.

17. The Tribunal referred to the existence of a certificate under s 438(1)(b) of the Act dated 11 May 2015 (“the s 438 certificate”). The Tribunal informed the applicant of the existence of the s 438 certificate. The Tribunal explained to the applicant that the document covered by the s 438 certificate is a record of an interview in respect of concerns in relation to the applicant’s identity. The Tribunal identified that it was prepared to accept the applicant’s identity. The Tribunal also explained to the applicant that the information otherwise raised in the documents the subject of the s 438 certificate did not appear to be of any relevance and no adverse inference would be drawn because of the documents the subject of the s 438 certificate.

18. The documents the subject of the s 438 certificate have been tendered into evidence and are identifiable as an identity assessment. Given the Tribunal raised the same with the applicant and his migration agent at the time of the hearing and informed the applicant of the nature of the same, it is apparent that the applicant suffered no practical injustice in the circumstances of the present case by reason of the existence of the s 438 certificate and the documents the subject of the certificate.

19. The Tribunal identified concerns in respect of key aspects of the applicant’s claims in his oral evidence being inconsistent with his written claims.

20. The Tribunal referred to the applicant’s central claim in respect of the attempt by Awami League members to extort money from the applicant’s family business. The Tribunal identified with the applicant that his oral evidence appeared significantly different to his written account of the events and referred to the applicant’s explanation.

21. The Tribunal also identified with the applicant the implausibility of the Awami League members going to the trouble of kidnapping him and taking him to a location and then releasing him without payment. The Tribunal also raised with the applicant the difference between what the applicant claimed occurred after he was released by the kidnappers as opposed to his written claim that he fled to a particular location for thirteen days after his release.

22. The Tribunal referred to the applicant’s evidence that his family in Bangladesh are not currently experiencing problems. The Tribunal also raised with the applicant the significance of the absence of any attempt to harm the applicant’s father or any other family members and referred to the applicant’s explanation as to having lied to the kidnappers.

23. The Tribunal also raised with the applicant pursuant to s.424AA of the Act that the record of his entry interview made no mention of the fact that he was kidnapped by members of the Awami League. The Tribunal referred to the applicant’s explanation.

24. The Tribunal found that the inconsistencies between the applicant’s written and oral claims indicate that the applicant was not speaking about past events which affected him personally.

25. The Tribunal referred to the applicant changing his evidence to a totally different account in relation to the three-wheeler taxi being burnt, which the Tribunal found reflected adversely on the applicant’s credit. The Tribunal also identified the problematic nature of the applicant’s explanation in relation to his release by the kidnappers.

26. After taking into account the applicant’s evidence and submissions, the Tribunal formed its opinion on the applicant’s credibility without placing weight on the omission from the applicant’s entry interview.

27. The Tribunal did not accept that Awami League members threatened or attempted to extort money from the applicant and his father, that they burnt the family’s three-wheeler or baby taxi, that they kidnapped the applicant and threatened to kill him if a financial demand was not met, or that the applicant was forced to flee to a particular location to avoid harm or being killed by Awami League members. The Tribunal also did not accept that Awami League members are continuing to look for the applicant in relation to these matters.

28. The Tribunal was satisfied that the applicant is not a supporter of the BNP. Given the applicant’s express lack of interest and involvement in any political activity, the Tribunal was not persuaded that the applicant would be imputed to be a BNP supporter.

29. The Tribunal referred to the applicant’s family’s financial status and to country information. The Tribunal was not satisfied that the applicant’s family could be currently described as wealthy. The Tribunal identified that they no longer operate a commercial business. The Tribunal was not satisfied that the applicant’s family would be identified as successful business owners. The Tribunal was not persuaded that the applicant will be at risk of harm for this reason now or in the reasonably foreseeable future if he returns to Bangladesh.

30. Having considered the applicant’s claims individually and cumulatively, the Tribunal was not satisfied that there is a real chance the applicant will suffer harm on return to Bangladesh for a 1951 Refugee Convention reason. The Tribunal found that the applicant did not meet the criteria in s.36(2)(a) of the Act.

31. The Tribunal was not satisfied that there are 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 he will suffer significant harm. The Tribunal found that the applicant did not meet the criteria in s.36(2)(aa) of the Act.

32. Accordingly, the Tribunal affirmed the decision under review.

Before the Court

1. These proceedings were commenced on 18 November 2016.

2. On 30 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 filed an affidavit annexing two documents which were in the Court Book. No other document has been filed.

3. 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.

4. From the bar table, the applicant maintained that he will be killed if he goes back to Bangladesh. This, in substance, reflects the claims advanced by the applicant before the Tribunal and upon which the Tribunal made adverse credibility findings, for the reasons summarised above. Those adverse findings were open to the Tribunal for the reasons given by the Tribunal. The applicant’s disagreement with the adverse findings by the Tribunal does not identify any jurisdictional error.

5. From the bar table, the applicant suggested that the Tribunal did not consider things. When asked by the Court to identify what was not considered, the applicant failed to identify any subject matter that was not considered.

6. From the bar table, the applicant also suggested that the Tribunal had not completely understood his claims. When asked by the Court what it was that was not understood, again, the applicant did not identify any matter other than disagreeing with the Tribunal’s adverse findings in respect of the 1951 Refugee Convention and complementary protection.

7. From the bar table, the applicant asked the Court to permit him to remain in Australia and to give him asylum. The Court explained to the applicant that it could not decide the matter on compassionate or discretionary grounds, that the Court had no power to review the merits or make fresh findings of fact and that the Court’s powers were confined to considering whether the Tribunal complied with its statutory obligations and the requirements of procedural fairness.

8. From the bar table, the applicant maintained that his life would not be safe if he was returned to Bangladesh. The applicant’s submissions from the bar table were, in substance, an invitation to this Court to engage in merits review. This Court has no power to review the merits.

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

Grounds in the application

1. The grounds in the application are as follows:

   1. The Administrative Appeal Tribunal (Refugee) (the Tribunal) made error of law and failed to exercise the proper procedure in relation to make decision on the review of the applicant’s protection visa rejection by the Minister’s delegate.

   2. The manner in which the tribunal dealt with the application and the applicant was such that it is possible to fairly apprehend that the tribunal did not bring an impartial mind to the resolution of the matter before it.

   3. The second respondent has denied the applicant’s natural justice and procedural fairness pursuant to s423A and 430(1)(c) and (d) of the Migration Act 1958.

   4. The applicant claims that the Tribunal was preoccupied and that was why he was denied natural justice and procedural fairness when the Tribunal formed the view about the applicant before the hearing. Preoccupation is clearly authenticated in its decision that the Tribunal has cut & pasted from the delegate's decision.

   5. The applicant was deprived of the natural justice and procedural fairness. Because the decision maker did not afford the applicant whose interest has adversely affected by the decision as it did not given the opportunity to present his case. The Tribunal did not follow the hearing rule as based on Maxim which is clearly recognized as a denial of procedural fairness.

Ground 1

1. In relation to ground 1, the Tribunal correctly identified the relevant law and, on the face of the Tribunal’s reasons, the applicant had a real and meaningful hearing before the Tribunal and the Tribunal complied with its statutory obligations. Further, on the face of the Tribunal’s reasons, the Tribunal had an active intellectual engagement with the applicant’s claims and evidence and made dispositive findings which were open for the reasons given by the Tribunal, as summarised above.

2. No error of law as alleged in ground 1 is made out because, on the face of the Tribunal’s reasons, the Tribunal correctly identified the relevant law and gave reasons that support the Tribunal correctly applying the relevant law in the adverse findings which were open to it. There is no basis to find that the Tribunal failed to comply with the requirements of procedural fairness. For the reasons given above, there was no practical injustice suffered by the applicant in the conduct of the review by reason of the s.438 certificate.

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

Ground 2

1. Ground 2 alleges apprehended bias by the Tribunal but does not identify any conduct to support that ground. The adverse findings by the Tribunal are not conduct by reason of which a fair-minded lay observer might reasonably apprehend that the Tribunal might not bring an independent and impartial mind to the determination of the matter on its merits. Further, on the face of the material before the Court, the Tribunal conducted the review with an open mind reasonably capable of persuasion as to the merits.

2. No apprehended bias as alleged in ground 2 is made out.

Ground 3

1. In relation to ground 3, the applicant alleged a breach of s.423A of the Act. It is apparent from paragraph 53 of the Tribunal’s reasons that the Tribunal identified taking steps pursuant to s.424AA of the Act in respect of the applicant’s record of interview but then identified in its reasons that it would not place any weight on that omission in the making of its adverse findings. No transcript of the proceedings has been tendered.

2. There is no basis to find that there was any failure to comply with s.424AA of the Act in respect of the information identified in paragraph 53. No other information has been identified to enliven an obligation under s.424AA of the Act. Further, it is apparent in respect of the information the subject of paragraph 53 of the Tribunal’s reasons that the Tribunal identified taking into account the applicant’s submissions and that the Tribunal formed its opinion without taking into account the matters that had been raised under s.424AA of the Act, as identified at the end of paragraph 57 of the Tribunal’s reasons. No breach of s.424AA of the Act is made out.

3. To the extent that there is a reference to s.423A of the Act, this concerns the drawing of an adverse inference in respect of a new claim. It is not apparent that s.423A of the Act had any application in the circumstances of the present case.

4. In respect of sub-s 430(1)(c) of the Act, this refers to the Tribunal setting out findings on any material questions of fact. The Tribunal’s reasons reflect compliance with the requirements of s.430(1) of the Act, including sub-section (c). No failure to comply with sub-ss.430(1)(c) or 430(1)(d) of the Act as alleged in the application is made out.

5. The Tribunal’s reasons refer to the evidence upon which the adverse findings dispositive of the applicant’s claim were made. For the reasons already given, no breach of the requirement of procedural fairness is made out. The applicant was invited to attend a hearing in accordance with the statutory rules. On the material before the Court, the applicant had a relevant and meaningful hearing during which the Tribunal raised the issues of concern with the applicant.

6. No jurisdictional error is made out by ground 3.

Ground 4

1. In relation to ground 4, it is alleged that the Tribunal had predetermined the matter. There is no conduct identified to support any such predetermination. There is a suggestion that the Tribunal cut and paste from the Delegate’s decision. That is entirely inconsistent with the text of the Delegate’s decision and the text of the Tribunal’s decision and is an unsupported allegation that is not made out. There is no basis to find that the Tribunal did other than, as identified above, approach the review with an open mind reasonably capable of persuasion as to the merits.

2. No jurisdictional error is made out by ground 4.

Ground 5

1. In relation to ground 5, no evidence has been tendered to support the allegation that the applicant was not given an opportunity to present his case and evidence. The Tribunal’s reasons are entirely inconsistent with that contention and clearly identify the Tribunal having an active engagement with the applicant’s explanation in respect of the issues raised by the Tribunal with the applicant. It is also apparent that the applicant was represented at the hearing. There is no basis to find that the applicant had other than a real and meaningful hearing before the Tribunal and had a proper opportunity to present his claims and evidence. There was no denial of procedural fairness in the conduct of the hearing or the review on the face of the material before the Court.

1. No jurisdictional error as alleged in ground 5 is made out.

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

I certify that the preceding fifty-eight (58) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 4 December 2019 and the parties were provided sealed copies of the Court’s orders

Associate:  

Date:  26 February 2020