DYO16 v Minister for Immigration

[2017] FCCA 2041

FEDERAL CIRCUIT COURT OF AUSTRALIA

DYO16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2041

Catchwords:
MIGRATION – Application for a Temporary Protection (Class XD) visas – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.36(2), 45AA, 424A, 424AA

Migration Regulations 1994 (Cth), reg.2.05F

Cases cited:

Kioa v West (1985) 159 CLR 550

MIMIA v Al Shamry (2001) 110 FCR 27
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
NAZY v MIMIA [2005] FCA 744
SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609
VHAJ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 80

Applicant: DYO16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 1160 of 2016

Judgment of: Judge Jarrett

Hearing date: 2 June 2017

Date of Last Submission: 2 June 2017

Delivered at: Brisbane

Delivered on: 29 August 2017

REPRESENTATION

The Applicant appeared in person

Counsel for the First Respondent: Mr Byrnes

Solicitors for the First Respondent: Clayton Utz

The Second Respondent entered a submitting appearance

ORDERS

1. The application filed 15 December, 2016 be dismissed; and

2. The applicant pay the first respondent’s costs fixed in the sum of $7,206.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 1160 of 2016

DYO16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of Bangladesh who arrived in Australia by boat on 6 May, 2013.  He applied for a Protection (Class XA) visa on 12 December, 2013.

2. By operation of s.45AA of the Migration Act 1958 (Cth) and reg.2.05F of the Migration Regulations 1994 (Cth), which came into effect on 16 December, 2014 valid applications for Protection (Class XA) visas were converted to valid applications for Temporary Protection (Class XD) visas. As a result, the application was taken to be, and always to have been, an application for a Temporary Protection (Class XD) visa.

3. On 8 October, 2015 a delegate of the first respondent refused to grant the applicant a temporary protection visa.  The applicant sought review of the delegate’s decision by the Administrative Appeals Tribunal. 

4. The applicant appeared at a hearing before the Tribunal with the assistance of his representative and a Bengali interpreter.  The Tribunal affirmed the delegate’s decision not to grant the applicant the visa on 18 November, 2016.

5. By this application, the applicant seeks judicial review of the Tribunal’s decision.  He has specified four grounds of review in his application for review filed on 15 December, 2016. 

6. The applicant has filed two outlines of submission, one on 23 May, 2017 and a second filed on 9 August, 2017.  The first outline appears to argue more broadly the grounds of review, or some of them, articulated in the applicant’s application.  The second outline does the same and arguably seeks to add three new grounds of review to the application.  Although the first respondent objected to the expanded grounds in the first outline and the additional grounds in the second outline, I intend to deal with them as best as I can.  The first respondent’s counsel has dealt with the expanded grounds in his outline of argument, so no question of surprise arises.

The applicant’s claims for protection

1. The applicant claimed to have a well-founded fear of persecution because he was involved in the Bangladesh Nationalist Party.  He claimed to fear harm from the Bangladesh authorities, including members of the Awami League, Islamic political parties, Shorbohara (a left wing extremist movement) and members of the Muslim community due to his Hindu faith, political activities and because he comes from a well-known and successful family.

2. As the applicant submits, the Tribunal rejected the applicant’s claims on the basis of comprehensive adverse credibility findings. The Tribunal did not accept the applicant’s claims relating to his involvement in the Bangladesh Nationalist Party.  The Tribunal noted that the applicant made no reference to such a claim in his visa application form.  The Tribunal thought that his knowledge of the Bangladesh Nationalist Party was almost non-existent and that his evidence about his political activities was inconsistent and unpersuasive. 

3. The Tribunal found that some of the applicant’s accounts were vague and changeable and appeared to be exaggerated or misconstrued in an attempt to enhance his protection claims.  Nonetheless, the Tribunal accepted some of his claims.

4. The Tribunal did not accept that the applicant, or the applicant’s family, supported the Bangladesh National Party either directly or indirectly.  The Tribunal concluded that the applicant had a minimal interest in political matters and no political profile of any significance. 

5. The Tribunal accepted that the applicant was a Hindu and that his family had a well-established business.  However, the Tribunal was not satisfied that the applicant or his family had experienced discrimination or mistreatment in their business activities or religious practice that involved persecution or significant harm.  It was not satisfied that a claimed property dispute that the applicant said his family had with his family’s Muslim neighbours was caused or was added to by religious or communal differences or that any claimed threats or actions in that dispute involved serious or significant harm.

6. The Tribunal accepted that the applicant’s family and family business were subject to some extortion, harassment and financial misconduct from customers, however it found that the main motivation for those actions was probably criminal and it did not involve serious or significant harm in a Convention sense or were for a Convention reason. 

7. The Tribunal did not accept that a sizable group of men tried to attack the applicant in 2008 or that he was attacked in 2011 or 2012.  It did not accept that he was in hiding with relatives or that there were men asking after him.  It did not accept his claim that there had been developments in Bangladesh related to his protection claims after he had arrived in Australia.

8. Ultimately, the Tribunal was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason at the time of its decision, or in the reasonably foreseeable future, for the purposes of s.36(2)(a) of the Act. Further, the Tribunal was not satisfied that there were 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 that the applicant would face significant harm, pursuant to s.36(2)(aa) of the Act.

The grounds of review

1. In his application filed on 16 December, 2016 the applicant specifies the following three grounds of review (omitting the first paragraph which is not a ground of review):

   2.The applicant claimed that Australia owed protection obligations in respect of him.

   3.That the decision of the Second Respondent the AAT was affected by legal error.

   4.Relevant information not considered.

2. The applicant’s written submissions filed on 23 May, 2017 extend beyond those particularised grounds of review, but do not advance his case.  They do not attempt to relate his arguments to his nominated grounds of review.  They are an attempt to persuade the Court that the Tribunal arrived at the wrong decision on the facts as argued for by the applicant.  However, they pay no attention to the findings made by the Tribunal and the matters in respect of which the Tribunal expressed a lack of satisfaction.  They make no attempt to demonstrate that the Tribunal’s decision is attended by error, let alone jurisdictional error.

3. In his first set of submissions, the applicant says that he is “relying on the transcript of the Tribunal’s hearing which clearly indicates that the Tribunal did not follow properly follow (sic) the procedure and did not ask the question directly relevant to his UN Convention based claim”.  However, the applicant produced no transcript.  When I asked him about the reference to the transcript in his written submissions, the applicant did not seem to understand that his written submission purported to rely upon a transcript of the hearing at all.

4. The applicant relies upon Kioa v West (1985) 159 CLR 550 and in particular a passage from the judgment of Mason J (as his Honour then was) at 587:

   The applicant is entitled to support his application by such information and material as he thinks appropriate and he cannot complain if the authorities reject his application because they do not accept, without further notice to him, what he puts forward. But if in fact the decision maker intends to reject the application by reference to some consideration personal to the applicant on the basis of information obtained from another source which has not been dealt with by the applicant in his application there may be a case for saying that procedural fairness requires he be given an opportunity of responding to the matter.

5. The applicant did not explain (in his written submissions or orally) how this passage related to the grounds of review that he pursued in this case.  Its relevance is not immediately apparent.

6. The applicant argues that the Tribunal approached his case on a “generalised” basis that was unfair.  He argues that the Tribunal paid no attention to the particular facts of his case.  However, the Tribunal’s reasons disclose no such approach by it to the determination of the applicant’s claims.  The Tribunal paid close attention to the facts alleged by the applicant, made findings about them and used those findings to inform the conclusions that it was required to reach by the Migration Act 1958 (Cth).

7. The applicant argues that the Tribunal relied upon country information and inconsistencies in the applicant’s claims set out in the protection visa application and the claims made before the Tribunal as part of the reason for affirming the decision under review.  He argues that the Tribunal failed to put those inconsistencies in writing to the applicant for comment.  He relies upon NAZY v MIMIA [2005] FCA 744 and MIMIA v Al Shamry (2001) 110 FCR 27.

8. However, the applicant was invited to attend a hearing. He attended that hearing and the Tribunal’s reasons reveal that it discussed with him the inconsistencies that the Tribunal discerned in his statements and the other material before the Tribunal. There can be no doubt that the applicant’s credibility was a significant matter for the Tribunal. The Tribunal put various matters to the applicant orally, including its concerns as to his credibility and inconsistencies in his evidence, in compliance with s.424AA of the Act.

9. The applicant’s submission that the Tribunal was required to put certain inconsistencies to the applicant in writing has no merit. Inconsistencies such as those identified by the Tribunal here are not “information” for the purposes of s.424A of the Act: SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at [18].

10. The Tribunal did not fail to apply s.424A of the Migration Act because it relied on country information: VHAJ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 80 at [28], [50] and [71].

11. The applicant argues that the Tribunal “has ignored its undertaking to give him an opportunity to make further written submissions about the inconsistencies in his evidence; therefore the Tribunal had erred by denying him procedural fairness in respect of that issue. (Please refer to the attached transcript of the hearing).”  However, as I have already pointed out, there was no transcript of the Tribunal hearing put into evidence.  There is nothing in the Tribunal’s reasons to suggest that the applicant was to be given time to make a further written submission in relation to credibility issues.  In those circumstances, the applicant’s claims in that regard cannot be made out.

12. The applicant argues that the Tribunal was unduly influenced by the delegate’s decision on the applicant’s visa application.  However, despite the applicant’s claims to the contrary, the Tribunal did not extract parts of the delegate’s decision in its own reasons for decision and accept the delegate’s findings and act upon them.  There is nothing in the Tribunal’s reasons for decision that would suggest that the Tribunal adopted that course.

13. The applicant also argues that “the Tribunal erred in holding that the applicant’s claim is ‘highly inconsistent’ and it has remarked that only high profile Bangladesh Nationalist Party activists would have been attacked by the AL-supporter”.  However, the Tribunal made no such finding.  A finding somewhat to the same effect was made by the first respondent’s delegate, but the finding was not adopted nor remade by the Tribunal.

14. The applicant argues that the Tribunal “erred in holding that the applicant was not pursued and threatened by the then Awami League administration”.  But the Tribunal made no such finding.

15. The applicant argues that the Tribunal erred in holding that he is not a person to whom Australia owes protection obligations under the Refugees Convention and therefore did not satisfy the criteria in s.36(2) of the Migration Act for the grant of a protection visa on the basis that “The Tribunal failed to internalize the circumstantial grounds of the applicant’s review application while considering the claims of the review application.” I do not know what that means. It was not explained.

16. The applicant argues that the Tribunal, in determining the appeal, was biased, or, in the alternative, there was an apprehension of bias in the making of the purported decision such that it vitiated the said purported decision.  However, how the Tribunal was bias or how that bias was manifest was not explained.

17. Finally, the applicant argues that “Surprisingly, at any stage of the hearing, the ‘Internal relocation’ issue was not raised by the tribunal during the review process and no adverse material were put to the applicant that were taken into consideration while the second respondent made its decision.”  However, that the Tribunal did not raise the “internal relocation issue” with the applicant is not surprising because the Tribunal did not determine the application on the basis that the applicant could relocate within Bangladesh so as to avoid any serious or significant harm at which he was at risk should he return there.

18. The arguments raised in the applicant’s first outline of submissions do not demonstrate that the Tribunal’s decision is attended by jurisdictional error.

19. Neither do the submissions in the applicant’s second outline of submissions.  In that document, the applicant again suggests that he was “relying on the transcript of the Tribunal’s hearing which clearly indicates that the Tribunal did not follow properly follow (sic) the procedure and did not ask the question directly relevant to his UN Convention based claim and the Court can review the merits of the Tribunal’s decision”.  However, no transcript was produced.

20. The balance of the applicant’s second outline of submissions refers to the three substantive grounds of review set out in his application for review.  I will deal with each of those in turn.

Ground 2

1. The applicant argues that the Tribunal erred in not finding that the delegate refused his application on the ground that he “would face punishment would be completely politically/religion motivated.” He argues that the Tribunal erred in not finding that the delegate “erred in law amounting to jurisdictional error in finding that the applicant does not have genuine fear of persecution for a convention reason and the applicant does not meet the criteria set out in s 36(2) of Protection Visa”.

2. The applicant contends that he “has a real chance of being persecuted for a Refugees Convention reason.  The applicant’s fear of persecution, as defined under the Refugees Convention, is well-founded.  The applicant is uncertain what would happen to him if returned to Bangladesh.  There are many political incidents in local grass-root level which either does not report to the media nor does the state government provide any assistance.  The applicant fears that if he has to return to Bangladesh he will be killed by the Awami League activists as he described in his protection visa application.”

3. However, these are arguments that cavil with the findings made by the Tribunal about the merits of the applicant’s claims.  The applicant’s arguments do not reveal jurisdictional error on the part of the Tribunal.

4. The applicant argues that his visa application was made in accordance with “the UN convention based claims. Therefore the applicant met the Article IE, ID and IF respectively in relation to the UN Refugee Convention.” However, the grant of a visa is not dependent simply upon a visa applicant making claims that seek to engage the relevant UN convention. To secure the grant of a visa, the first respondent must be satisfied that, amongst other matters, the criteria prescribed by the Migration Act and the Migration Regulations have been met. It is axiomatic that if the criteria are not met, the visa cannot be granted.

5. The applicant argues that “There is no room for doubt that if the applicant did fear persecution, it was for a Convention reason being because of his political affiliation and activities as result he was physically assaulted, threatened and humiliated in his country of nationality which is Bangladesh.” But, as the first respondent points out, there was room for doubt, according to the Tribunal.  It was the Tribunal’s function to consider each of the applicant’s claims and to determine whether it was satisfied that the criteria for the grant of the visa were satisfied.  In this case it determined that they were not because it could not be satisfied on the material before it that the applicant had a well-founded fear of persecution for a convention reason.  The Tribunal rejected the applicant’s claims on crucial aspects of his case.

6. The applicant says in his written outline that he “believes that the Tribunal’s decision was influenced by sufficient doubts”.  Indeed it was.  The Tribunal expressed that it had considerable doubt about the claims made by the applicant. 

7. The applicant argues that “the tribunal should have a fresh look into all case individually on their own merit and it should not generalize all the appeals and process an appeal with a ‘preoccupied attitude’.”  However, an examination of the Tribunal’s reasons reveals that it did just that.  It examined the applicant’s claims afresh and without any apparent pre-conception about their veracity.  There is nothing to suggest that the Tribunal was influenced by the findings of the delegate of the first respondent.

8. I accept the first respondent’s submissions that the Tribunal’s reasons for decision shows that it:

   a)correctly identified the relevant visa criteria and relevant law it was required to consider;

   b)comprehensively considered: 

   i)each of the claims made by the applicant;

   ii)all the material and evidence that the applicant had placed before it; and

   iii)the relevant country information; and

   c)made findings of fact in relation to the applicant’s claims.

9. The Tribunal clearly gave detailed and comprehensive reasons for the determinations that it made in respect of the applicant’s claims.

Ground 3

1. Although this ground is not particularised in the applicant’s application, his written outlines (the second in particular) contain some clues as to his argument that the Tribunal made a legal error.

2. His first argument is that the Tribunal failed to “consider a claims or integer of claims and failed to consider whether applicant had a well-founded fear of persecution in the reasonable foreseeable future upon return to his own country of origin”.  However, this argument cannot succeed.  The Tribunal clearly considered each aspect of the applicant’s claims.  It clearly considered whether the applicant’s professed fear of persecution was well-founded.  It was not satisfied that it was, having regard to the findings that it had made.  There is nothing in this point.

1. Next, the applicant argues that the Tribunal “had no jurisdictions to make such decision because its reasonable satisfaction was not arrived in accordance with the provisions of the Migration Act 1958. The Tribunal denied the applicant procedural fairness by reaching conclusions that the applicant is not a credible witness and his claims were implausible. The Tribunal member in his decision records did not ask any conventions relation questions whether the applicant had fear of persecution in his own country of residence”.

2. The gravamen of this ground seems to be that the Tribunal did not tell the applicant that it did not believe many of his claims.  However, the Tribunal’s reasons show that it raised with the applicant its concerns about his claims and the difficulties that the Tribunal had with them.  In my view the Tribunal’s credit findings are unimpeachable.

3. The applicant claimed that “The Administrative Appeals Tribunal officer erred in law to come to a decision dismissing my application not finding that the Department of Immigration and Border Protection did not consider that I was a victim of persecution for my political belief as an activist of Bangladesh Nationalist Party to my departure from Bangladesh.”  This argument cavils with the Tribunal’s failure to be satisfied that the applicant was an activist of the Bangladesh Nationalist Party as he had claimed.  It does not reveal jurisdictional error.

4. The applicant further argues that the Tribunal accepted only the DFAT country report before it and took into account, or disregarded other information that was before it.  As the first respondent argues, this appears to be a claim that the Tribunal did not take into account a relevant consideration.  However, the applicant has not identified any specific document that he says the Tribunal failed to consider.

5. In any event, the choice and assessment of country information was for the Tribunal: NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [13]. The Tribunal’s reasons show that the Tribunal did consider the information that was put to it. The examples given by the first respondent are instructive. The Tribunal listed the evidence before it at [16] of the decision. That list included various sources of non-DFAT country information and submissions of the applicant, which referred to non-DFAT country information. At [71], the Tribunal expressly stated that it had surveyed the country information in the applicant’s submissions. The Tribunal expressly referred to non-DFAT country information throughout its decision. This complaint reveals no jurisdictional error.

6. The applicant argues that the Tribunal “did not follow the procedural fairness”. This complaint is unparticularised.  I can detect no instance in which the Tribunal proceeded in a way that offended the rules of procedural fairness that the Tribunal was bound to observe. 

7. The applicant complains that the Tribunal was wrong to reach an adverse conclusion about his credit “on the basis of inconsistency, in the interview, and the general country information”.

8. In my view, Ground 3 of the amended application reveals no jurisdictional error.

Ground 4

1. This ground alleges that the Tribunal did not consider relevant information.  However, the applicant does not identify any information that the Tribunal failed to consider.  In his written submissions he seems to contend that the Tribunal acted without evidence to make some of the findings that it made.  However, he does not identify the findings he seeks to challenge.

2. The applicant’s written submissions also suggest that the Tribunal failed to consider, and accept, evidence.  Again, the applicant has failed to identify any specific evidence to which his complaint relates.

3. The applicant argues that the Tribunal erred in finding that “the applicant’s claim was “highly inconsistent” and that only high profile BNP activists have been attacked”. This claim was raised in the applicant’s first outline of submissions and I have dealt with it above at [27]. The Tribunal made no such finding. A finding somewhat to the same effect was made by the first respondent’s delegate, but the finding was not adopted nor remade by the Tribunal.

4. The applicant also argues that the Tribunal’s decision was unreasonable.  However, there is nothing in the Tribunal’s reasons to suggest that the principles concerning unreasonableness are engaged in this case. 

Conclusion

1. The applicant’s grounds of review and his written submissions do not reveal jurisdictional error on the part of the Tribunal.

2. Consequently, his application must be dismissed with costs.

I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of Judge Jarrett

Associate: 

Date:  29 August 2017