FEDERAL COURT OF AUSTRALIA

AMY16 v Minister for Immigration and Border Protection (No 2) [2018] FCA 292

Appeal from:

AMY16 v Minister for Immigration and Border Protection [2017] FCCA 2186

File number:

NSD 1671 of 2017

Judge:

ALLSOP CJ

Date of judgment:

8 March 2018

Cases cited:

AMY16 v Minister for Immigration and Border Protection [2018] FCA 290

Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; 212 FCR 99

Date of hearing:

8 March 2018

Registry:

New South Wales

Division:

General Division

National Practice Area:

Administrative and Constitutional Law and Human Rights

Category:

No Catchwords

Number of paragraphs:

16

Counsel for the Appellant:

The Appellant appeared in person, with the assistance of an interpreter

Counsel for the First Respondent:

Mr T Reilly

Solicitor for the First Respondent:

Australian Government Solicitor

ORDERS

NSD 1671 of 2017

BETWEEN:

AMY16

Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:

ALLSOP CJ

DATE OF ORDER:

8 MARCH 2018

THE COURT ORDERS THAT:

1.    Pursuant to r 36.75(2)(a) of the Federal Court Rules 2011 (Cth), the order for dismissal made under r 36.75(1)(a) on 8 March 2018 be set aside.

2.    The appeal be dismissed with costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(Revised from the transcript)

ALLSOP CJ:

1    This is an application by the appellant to set aside orders that I made earlier this morning, dismissing his appeal with costs, because those orders were made in his absence. As my previous reasons reveal, the appellant was not present when the matter was called on: see [2018] FCA 290. The matter was called three times outside, both using his acronym as well as his given name. I will deal with the matter now as if the appeal was on foot. The appellant is a citizen of Bangladesh whose claim for a Protection Visa is based on the matters set out in [2]-[4] of the primary judge’s reasons which are as follows:

2. On 20 June 2013, the applicant applied for a protection visa. The applicant claimed that he owned a shop at a particular location and people involved with the Awami League visited his shop and demanded money. The applicant alleges after paying on two occasions, he refused to pay them any more and they threatened to kill him. The applicant alleges he was attacked and robbed and assaulted by these people on the way home from work, but that he managed to escape and hid in his grandmother’s house before leaving Bangladesh.

3. The applicant alleges that his father visited the store the day after the event and saw that it had been vandalised and looted. The applicant alleges that five or six people that night went to his family home, asking as to the applicant’s whereabouts. The applicant alleges that with the assistance of an agent, he travelled to Thailand and then travelled to Malaysia and then to Indonesia, before travelling to Australia.

4. The applicant fears harm from people involved with Awami League as a businessman, and as someone who did not pay money demanded by members of the Awami League. The applicant also fears harm because of an imputed political opinion in supporting the Bangladesh National Party.

2    Essentially, the appellant claims to have been targeted by people involved with the Awami League who have demanded money and threatened him. The Tribunal dealt with the consideration of the claims and evidence from [19]-[55], dealing with both the claim for refugee status as well as the claim for complementary protection. The rejection of the evidence and claims of the appellant by the Tribunal was comprehensive. The primary judge dealt with this in summary form at [9]-[15] of his reasons:

9. The Tribunal identified giving careful consideration to the applicant’s claims and was mindful of the applicant’s age. The Tribunal, however, reached the conclusion that the central elements of the applicant’s claims were not credible. The Tribunal found that the key aspects of his claims over time changed and that he was unable to credibly explain significant inconsistencies in his evidence, and his evidence about why people from the Awami League would target him and pursue him throughout Bangladesh. The delegate found the applicant’s evidence in that regard highly improbable.

10. The Tribunal reached the conclusion that the applicant’s claims that he was targeted by people from the Awami League were not credible. The Tribunal identified that the applicant had provided inconsistent evidence about the night that he was attacked by members of the Awami League. The Tribunal identified the applicant also provided inconsistent evidence about when he first gave the Awami League money. The Tribunal found aspects of the applicant’s evidence to be vague and highly improbable.

11. The Tribunal found the applicant’s claims that he had to leave Bangladesh otherwise people from the Awami League would pursue him throughout the country strained credulity. The Tribunal did not accept that the applicant has credibly explained why he was targeted by the Awami League, that his father was actually a supporter of the BNP and the applicant claims his father gave money and was asked to pay his son’s debts, particularly when the applicant’s evidence indicates that people from the Awami League knew where his father lived.

12. The Tribunal made reference to the applicant raising a claim that he was at risk of being harmed because he had witnessed people being killed. The Tribunal did not accept that the applicant witnessed the murder or murders. The Tribunal did not accept that the murder of the owner of an electrical shop, which happened six or seven years before the applicant left Bangladesh, was anything to do with the reasons the applicant left Bangladesh. The Tribunal rejected the suggestion that there is a real chance the applicant would suffer harm of any type, including serious harm or significant harm, because of his knowledge of that event.

13. The Tribunal found the inconsistencies in the applicant’s evidence about his interactions with people from the Awami League cast serious doubt upon his claims that he was ever the target of demands for money. The Tribunal found the applicant’s claims, that people from the Awami League wanted to kill him and pursue him wherever he went in Bangladesh, to be unpersuasive. The Tribunal did not accept that the applicant had told the truth about why he left Bangladesh. The Tribunal did not accept that the applicant was targeted by people from the Awami League because he refused to comply with their demands for money.

14. The Tribunal did not accept that the applicant was ever subject to demands for money, harassed, threatened, insulted by people involved with the Awami League as claimed. The Tribunal did not accept that people involved with the Awami League went to his family home to look for him, threatened his family and damaged their property. The Tribunal did not accept that the applicant’s shop was looted and vandalised by the Awami League as claimed.

15. Because the Tribunal did not accept the applicant was ever targeted, threatened or harmed by people from the Awami League, the Tribunal did not accept that the applicant has been imputed with the political opinion as being opposed to the Awami League for refusing to comply with their demands. The Tribunal did not accept that the applicant at the time he left Bangladesh was of any adverse interest to people involved in the Awami League. The Tribunal found that the applicant’s claims are not credible.

3    In the light of these findings, it was difficult, if not impossible, for the appellant to succeed in his claims.

4    The conclusions as to the refugee criteria and the complementary protection criteria are set out in [53] and [54]-[55] respectively of the reasons of the Tribunal. These matters were dealt with by the primary judge at [17]-19] and [20]-[21] respectively of his Honour’s reasons:

Refugee assessment

17. The Tribunal made reference to having discussed with the applicant his father was still living in the home area and does not appear to have been facing any problems because of political activities, and that the Tribunal found that in those circumstances, it was difficult to accept that there was a real chance that the applicant would suffer harm if returned to Bangladesh because of any political opinion that may be imputed to the applicant because of his father’s involvement in the BNP. The Tribunal did not accept there was a real chance that the applicant would be subject to harm of any type, including serious harm or significant harm, because of any political opinion that may be imputed to him because his father is a BNP supporter. The Tribunal found the applicant would not be an active BNP supporter if he returned to Bangladesh now or in the reasonably foreseeable future.

18. The Tribunal did not accept there was a real chance the applicant would face serious harm for the reasons claimed by the applicant. The Tribunal did not accept that the applicant has a well-founded fear of being persecuted for his political opinion, actual or imputed, or any other Convention reason if he returns to Bangladesh now or in the reasonably foreseeable future.

19. The Tribunal did not accept that the applicant has a well-founded fear of persecution for his political opinion or because of his membership of a particular social group of businessmen imputed to be BNP supporters or because of his membership of a particular social group of failed asylum seekers or for any other Convention reason if returned to Bangladesh now or in the reasonably foreseeable future. The Tribunal found the applicant did not meet the criteria under s.36(2)(a) of the Act.

Complementary protection assessment

20. The Tribunal did not accept that there are substantial grounds for believing that as a necessary and foreseeable consequence of the removal of the applicant from Australia to Bangladesh, there is a real risk that he will suffer significant harm for the reasons claimed. The Tribunal did not accept that there is a real chance that the applicant could be imprisoned or otherwise subject to treatment amounting to serious harm or significant harm for reasons relating to his departure from Bangladesh unlawfully.

21. The Tribunal found that the applicant failed to meet the criteria under s.36(2)(aa) of the Act and affirmed the decision under review.

5    Various grounds were identified in the application for review that are described in [23] of the primary judge’s reasons as follows:

1. 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 prior to my departure from Bangladesh

2. The Honorable Administrative Appeals Tribunal officer did not find that there was lack of procedural fairness in the decision of the Department of Immigration and Border Protection to consider that I was physically abused for my political belief and my life was at risk which forced me to leave Bangladesh for safety of my life. I was not accepted by Tribunal as a credible witness and refused my application.

3. The Administrative Appeals Tribunal Officer made error to find that the Department of Immigration and Border Protection failed to accept that the persecutions I experienced in Bangladesh and I shall be imprisoned and tortured if returned to Bangladesh. The Tribunal refused my claim on the ground that I am not a credible witness for my claims though I presented all relevant documents and evidences in support of my claims before the Tribunal prior to hearing.

4. The Administrative Appeal Tribunal officer erred in not finding that the DIBP erred in law amounting to jurisdictional error in finding that I do not have genuine fear of persecution for a convention reason and I do not meet the criteria set out in s 36(2) of Protection Visa.

5. The Administrative Appeals Tribunal officer erred in not finding that the DIBP refused my application on the ground that I would face punishment would be completely politically motivated.

6    The primary judge dealt with ground 1 in [28]-[29] in the following way:

28. In relation to Ground 1, it is apparent that the Tribunal took into account the applicant’s claimed fear of persecution on the basis of an imputed political opinion and made adverse credibility findings that were open to the Tribunal on the material before the Tribunal.

29. Ground 1 reflects a disagreement with those adverse findings and does not     identify any jurisdictional error.

7    Though there are a degree of conclusionary findings in relation to this ground, that is acceptable in the sense that the ground does not identify anything other than disagreement.

8    Ground 2 was dealt with by the primary judge in [30]-[31] as follows:

30. In relation to Ground 2, the applicant was invited to attend a hearing consistent with the statutory obligations by the Tribunal. On the face of the material before the Court, the Tribunal complied with its statutory obligations in the conduct of the review. On the face of material before the Court, the applicant had a real and meaningful hearing before the Tribunal. On the face of material before the Court, the Tribunal complied with its obligation to procedural fairness in the conduct of the review.

31. It was not relevant in relation to Ground 2 whether the decision of the Department may be the subject of alleged error or denial of procedural fairness, as it is the decision of the Tribunal that enlivens this Court’s jurisdiction. This Court does not have power or jurisdiction to review the decision of the delegate. For the reasons already given, the Tribunal’s adverse findings in relation to the applicant’s claims, and in respect of the applicant’s credit, were open. No jurisdictional error is made out by Ground 2.

9    The fact identified by the primary judge that the critical question was the procedural fairness before the Tribunal, this being a full review, is a correct observation. It was not the delegate’s decision that was under review, but the Tribunal’s decision.

10    Ground 3 was dealt with by the primary judge at [32] as follows:

32. Ground 3 reflects again a disagreement with the adverse findings by the Tribunal, which for the reasons already given were open and does not identify any jurisdictional error.

11    Again, though dealt with briefly, the complaint as to the decision of the Tribunal to the extent that this can be distinguished from the decision of the delegate is once again a complaint as to the factual findings by the Tribunal.

12    Grounds 4 and 5 were dealt with by [33] and [34] as follows:

33. Ground 4 also reflects a disagreement with the adverse findings by the Tribunal that were open on the material before the Tribunal and does not identify any jurisdictional error

34. Ground 5 also reflects disagreement with the adverse findings by the Tribunal. Those adverse findings were open. No jurisdictional error is made out by Ground 5.

13    They, like ground 3, are complaints as to the factual findings. It goes without saying that merely because the complaint is about factual findings, the jurisdiction of the Court to set aside a decision for jurisdictional error may still exist. The best and most recent illustration of that is the decision of Robertson J in Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; 212 FCR 99. However, there needs to be identified, explored and evaluated a relevant error in approach, whether by process or by conclusionary reasoning.

14    The primary judge was unable to identify any consideration from the terms of the Tribunal decision as to why it may be either factually incorrect or suffering from some important defect in the way the factual conclusions were reached. As the primary judge explained in his reasons, subject to a proper approach, including a proper fair approach, the factual decisions as to the claims made are fundamentally for the Tribunal to make. It is not the role of the primary judge nor myself to revisit the factual issues, save and except to make a decision as to whether they were legally unreasonable in either the way they were approached or the outcome. I have examined with some care the reasons of the Administrative Appeals Tribunal and am not able to identify any matter which would indicate legal error amounting to jurisdictional error in the approach it took. The appellant has filed no submissions on the appeal. He attended today late and in the circumstances I earlier identified. His submissions today were, effectively, that the Tribunal did not make sufficient inquiries and if he was suffering no risk of harm in Bangladesh, why would he risk his life to come to Australia.

15    If I may respectfully say, neither of those matters identify any legal error on the part of the Tribunal. It is for the applicant to make his case to the Tribunal for protection and it is the Tribunal’s responsibility to weigh those matters that are put to it. There may be circumstances where not to make inquiries and to draw a conclusion might be legally unreasonable. I see no reason to draw this conclusion, however, with respect to the comprehensive reasons of the Tribunal.

16    Having heard the applicant, recognising the matters that I have referred to above and taking into account the submissions of the Minister, I set aside the orders made in the absence of the appellant earlier in the morning. However, having heard the appellant and considering the matter, I would dismiss the appeal with costs.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Allsop.

Associate:

Dated:    12 March 2018