EAK16 v Minister for Immigration

[2018] FCCA 949

FEDERAL CIRCUIT COURT OF AUSTRALIA

EAK16 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 949

Catchwords:
MIGRATION – Protection Visa – whether Administration Appeals Tribunal’s decision affected by jurisdictional error – where no error established in decision – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 424A, 424A(2A),
424AA, 424AA(1), 425

Applicant: EAK16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 1185 of 2016

Judgment of: Judge Egan

Hearing date: 12 April 2018

Date of Last Submission: 12 April 2018

Delivered at: Brisbane

Delivered on: 12 April 2018

REPRESENTATION

The Applicant: In person

Solicitors for the Respondents: Clayton Utz

ORDERS

1. That the application be dismissed.

2. That the Applicant pay the First Respondent’s costs fixed in the sum of $7,328.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 1185 of 2016

EAK16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. I have before me an application for review of a decision of the Administrative Appeals Tribunal (Migration and Refugee Division) (“AAT”), handed down on 6 December 2016.  The application the subject of the review was made by the applicant, who is a citizen of Bangladesh.  He arrived by boat into Australia on 20 March 2013.  The initial entry interview of the applicant took place on 1 April 2013, some 12 days later. 

2. It was recorded in paragraph 78 of the reasons of the AAT that it was considered that whatever hardships the applicant had experienced on the boat journey to Australia, the applicant would have received adequate food and water whilst in detention in Australia, such that he would not have been starving for several days, as at the time of the entry interview. 

3. The applicant applied for a visa on 20 June 2013.  That application was subsequently refused by a delegate.  The application was taken to be an application for a temporary protection visa (class XD). 

4. The applicant appeared before the AAT on 2 December 2016 to give evidence and present arguments.  The AAT hearing was conducted with the assistance of an interpreter in the Bengali and English languages.  There is no suggestion, based upon any of the documentation before me, that the applicant was not able to fully and freely give whatever account of the evidence he wished to put to either the delegate or the AAT.  In other words, there is no evidence that the AAT refused to hear from the applicant in any respect. 

5. Central to a consideration of whether any jurisdictional error occurred on the part of the AAT was its treatment of the assertions made by the applicant that he was afraid to return to Bangladesh because of his association with an opposition party in Bangladesh known as “Jammat”.  It was asserted by the applicant before the AAT that members of a group called “Awami League” had, from late 2008 until 2012, acted such that he felt threatened.  He claimed that as a result of the activities of the Awami League, he made arrangements to leave Bangladesh out of a fear for his life.  He said that he had no initial intention of coming to Australia, but merely just intended to leave Bangladesh. 

6. He asserted that he and his family were active supporters of Jammat and that that became known to his neighbours and the ruling political party of the Awami League.  He also referred to the fact that he had beaten a relative of a member of such Awami League, and that vengeance was sought against him.  He stated that he had knowledge of corruption and extortion on the part of Awami League members in his local area, and that he had information that could expose Awami League corruption.  He reasoned that the Awami League, therefore, would consequently seek to harm him and mistreat him.  He expressed that there was no protection which would be afforded to him by the authorities. 

7. The AAT examined, in a careful and considered manner, all of the evidence that was put before it by the applicant.  In a number of respects, the tribunal found the applicant’s explanations to questions asked of him to be unsatisfactory.  For example, the tribunal had asked the applicant what he did to join a student party associated with Jammat (CS), to which the applicant replied that one did not have to do much at all to join.  The tribunal then put to the applicant the provisions of article 5 of the CS Constitution, which provided that:

   “Any worker desiring membership should collect a prescribed form from the central president, fill in the form and submit it to the central president, in the manner of being approved by the executive council, whereupon the central president would grant the application and arrange for the taking of an oath.”

8. A student seeking associateship was required to fill in an application form, specified by the central organisation, and submit it to the central president, pursuant to the provisions of article 10 of the CS Constitution.  The answer provided by the applicant was clearly at odds with what was specified in the CS Constitution as being the formalities required to be undertaken by someone prior to their joining CS.  The AAT legitimately expressed doubt as to the applicant’s claimed membership of CS, in circumstances where he had not completed the application form. 

9. The AAT also pointed out the fact that the applicant had not fully explained why he sought to join a student party in 2006, which was some three years after he had completed his studies.  The AAT pointed out to the applicant at the hearing the provisions of article 8 of the CS Constitution, which relevantly provided that membership of CS would automatically cease two months after the publication of the result of the examination at the close of one’s student life.  Again, the AAT expressed doubt at the applicant’s claim to have joined the party after he had ceased studying.

10. When addressing the question of membership of CS, the AAT put to the applicant those matters set out in s.424AA of the Migration Act 1958 (Cth) (“the Act”). It is clear that a relevant s.425 invitation had been given to the applicant to appear before the AAT. That invitation can be seen on pages 70 to 79 inclusive of the court book prepared in this matter. The procedures adopted under s.424AA by the AAT, as recorded in the body of the AAT’s reasons (see, for example, paragraphs 35, 39, 44, 45 and 54 of the reasons of the AAT) indicate that the AAT was mindful of its obligations pursuant to subsections (a) and (b) of s.424AA(1) of the Act.

11. By paragraph 7 of the applicant’s outline of submissions, filed on 15 January 2018, the applicant has submitted that the tribunal failed to comply with s.424A or s.424AA of the Act. Firstly, it must be pointed out that insofar as information was relied upon by the AAT, s.424A(2A) provides:

    The tribunal is not obliged, under this section, to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.

12. In this matter, the provisions of s.424AA were complied with by the AAT, in that the AAT orally gave to the applicant clear particulars of the information that the AAT considered would be the reason, or a part of the reason, for its affirming the decision that was under review. In that regard, I refer to paragraphs 26, 27, 29, 31, 35-37 inclusive, 44, 45, 54, and 73-78 inclusive of the AAT’s reasons in that regard. The AAT has therefore addressed all relevant matters, as it was required to do, pursuant to s.424AA.

13. Further, the AAT properly assessed the considerations relevant to its findings concerning s.36(2)(a) and s.36(2)(aa) of the Act, as set out, relevantly, in paragraphs 6 to 18 inclusive of the reasons of the AAT, which I find were addressed when the AAT arrived at its conclusions, as set out in paragraphs 80-89 inclusive of the AAT’s reasons.

14. At this juncture it is relevant to add that the applicant’s outline of submissions, as filed, seems to have been part of a cut and paste exercise from some other application for review. Though ground 1 has addressed a matter relating to the alleged failure on the part of the AAT to properly have regard to the provisions of s.424A or s.424AA of the Act, there is no ground of complaint so found in the amended application filed on 1 June 2017.

15. Notwithstanding the fact that there is no ground disclosed, I find that there has been no jurisdictional error in relation to the AAT’s treatment of its obligations, pursuant to either subsection, because of the fact that it has carried out a section 424A oral provision of particulars to the applicant.

16. There is, by paragraph 13 of the applicant’s submissions, an assertion that there was a refusal on the part of the AAT to hear from the applicant.  Again, there is no such ground found in the amended application for review.  As stated earlier, there is no evidence that there was any such refusal to hear from the applicant, or a refusal to receive from him any relevant information.  The applicant at no time complained that there had been any such denial.

17. Insofar as paragraph 16 raises the question of the AAT’s “duty to inquire”, in circumstances where the tribunal should make an obvious inquiry about a critical fact, which had not formed part of argument before the tribunal, there is no suggestion here that any such critical fact arose.

18. In all of the circumstances, therefore, I do not consider that the Administrative Appeals Tribunal has in any respect fallen into jurisdictional error. 

19. I dismiss the application for review.  I accept that the First Respondent has been successful in this matter, and, in the usual way, I order that costs ought to follow the event as was submitted by Mr James for the First Respondent.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Egan

Date: 1 May 2018