FEDERAL COURT OF AUSTRALIA

AMQ16 v Minister for Immigration and Border Protection [2017] FCA 129

ORDERS

THE COURT ORDERS THAT:

1.    The application for leave to appeal dated 25 August 2016 is dismissed.

2.    The applicant pay the costs of the first respondent, as agreed or assessed.

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

REASONS FOR JUDGMENT

GRIFFITHS J:

Introduction

1    The applicant seeks leave to appeal from a decision of the Federal Circuit Court of Australia (FCCA). The decision is reported as AMQ16 v Minister for Immigration Border Protection [2016] FCCA 2084. The FCCA summarily dismissed the applicant’s judicial review application under r 44.12 of the Federal Circuit Court Rules 2001 (Cth) on the basis that the primary judge was satisfied that the application had failed to identify any arguable jurisdictional error.

Summary of background facts

2    The applicant is a citizen of Bangladesh and claimed to fear persecution in Bangladesh from supporters of the Awami League and members of the Chatra League (the student arm of the Awami League) due to an imputed political opinion supportive of the Bangladesh National Party (BNP).

3    The applicant arrived in Australia in March 2013 as an unauthorised maritime arrival. The Minister’s delegate refused to grant him a protection visa. The applicant appealed to the Administrative Appeals Tribunal (AAT). The AAT questioned the applicant on matters such as any problems encountered by his family with the Awami League, his knowledge of the BNP and his involvement with the student arm of the BNP. As will shortly emerge, the AAT was critical of many of the applicant’s responses to its questions.

4    On 17 February 2016, the AAT affirmed the delegate’s decision and published its detailed reasons. The AAT:

(a)    did not accept the applicant’s claim that he was a member or active supporter of the BNP and found that he had falsely claimed to be a member;

(b)    stated that these adverse findings were based on the applicant’s answers to the AAT’s questions about the BNP;

(c)    found that there were inconsistencies between the applicant’s written claims and his oral evidence to the AAT concerning his claims of past harm and the number of occasions he was publicly attacked by Awami League supporters;

(d)    was not satisfied that the applicant held a profile that would attract adverse attention from that League’s supporters or members;

(e)    was not satisfied that the applicant had anything to fear if he returned to Bangladesh by reason of his association with BNP activists; and

(f)    placed reliance on the fact that the applicant had travelled to Malaysia prior to coming to Australia and that he could have sought protection there.

5    The AAT concluded that the applicant did not meet the refugee criterion in s 36(2)(a) of the Migration Act 1958 (Cth) (the Act), nor was it satisfied that he is a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.

The FCCA proceedings

6    The applicant’s judicial review application raised two grounds:

(a)    an alleged failure by the AAT to use the “real test of persecution and harm according to the Migration Act” and the failure to “assess all aspects of real chance the applicant will suffer serious harm on return to Bangladesh for a convention reason”; and

(b)    the AAT failed to apply the correct test concerning complementary protection because “it did not follow Rules of Real Risk Test of persecution and harm”.

7    Both these grounds were rejected by the primary judge, whose reasoning is reflected in the following three paragraphs of his reasons for judgment:

18.    In relation to ground 1, it is apparent the Tribunal correctly identified the relevant test and made findings that were open to it on the evidence. The adverse credibility findings cannot be said to lack an evident and intelligible justification. The particulars in support of ground 1 do not identify any proper basis upon which it can be said that the Tribunal failed to apply the correct test in relation to s 36(2)(a). Ground 1 fails to identify any arguable jurisdictional error.

19    In relation to ground 2, this seeks to raise that the Tribunal failed to apply the correct test in relation to complementary protection. The Tribunal identified the correct test, and the adverse findings by the Tribunal were open. The particulars to ground 2 fail to identify any proper basis upon which it can be said that the Tribunal failed to correctly apply the test in relation to complementary protection. Ground 2 fails to identify any arguable jurisdictional error.

20    As indicated, what was said by the applicant from the bar table was an invitation to this Court to review the merits of the matter. Nothing said by the applicant from the bar table identified any arguable jurisdictional error. I take into account the principles and caution in Spencer v Commonwealth of Australia (2010) 241 CLR 118 at [24]-[25] and [59]-[60].

The proceedings in this Court

8    When the matter was called for hearing, the applicant appeared for himself with the assistance of an interpreter. He failed to file and serve an outline of written submissions notwithstanding that he had been directed to do so on 8 September 2016. When he was invited to make oral submissions which addressed his proposed seven grounds of appeal, he responded by saying that he had risked his life to come to Australia and that he would be harmed if he returned to Bangladesh. He said that he was a political worker there and a supporter of the BNP and would have “no security in life” if he went back and the BNP was not in power. He did not address any of the individual seven grounds in his draft notice of appeal, saying that he was not a lawyer.

9    It is well settled that, to grant leave to appeal from an interlocutory decision such as that of the FCCA made under r 44.12 of the Federal Circuit Court Rules 2001, the Court must be satisfied that the decision below is attended with sufficient doubt to warrant its reconsideration on appeal and that substantial injustice would result if leave were refused, assuming the decision at first instance to be wrong (Décor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 844; 33 FCR 397 at 398-399).

10    The applicant’s draft notice of appeal raises the following seven proposed grounds of appeal (without alteration):

(i)The Federal Circuit Court Judge erred in law to come to a decision dismissing my application not finding that the tribunal did not consider that l was a victim of persecution for my political belief as an activist of Bangladesh Nationalist Party (BNP) prior to my departure from Bangladesh

(ii) The Honorable Federal Circuit Court of Australia Judge did not find that there was lack of procedural fairness in the decision of the Refugee Review Tribunal as the Tribunal failed 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.

(iii) The Honourbale Federal Circuit Court of Australian Judge made errors of jurisdiction not considering the Tribunal's failure to give me a reasonable opportunity to respond to independent evidence in possession of the Tribunal which suggests that I shall not be a victim of harassment of my political belief if I returned to Bangladesh.

(iv)The Federal Circuit Court of Australia Judge made error to find that the Tribunal 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.

(v) The Federal Circuit Court of Australia Judge erred in not finding that the tribunal 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.

(vi) The Federal Circuit Court of Australia Judge erred in not finding that the tribunal refused my application on the ground that I would face punishment would be completely politically motivated.

(vii) The Federal Circuit Court of Australia Judged erred in law not finding that the Tribunal failed to consider that I was discriminated for my political belief. The tribunal failed to consider that I shall be victim of significant harassment for my political belief if I returned to Bangladesh now or in the foreseeable future and my persecution is Convention related.

First ground

11    By the first ground, the applicant asserts that the primary judge erred in failing to find that the Tribunal did not consider that he was a victim of persecution for his political beliefs related to his membership of the BNP. Such a ground was not raised in the Court below, and could, for that reason alone, be rejected unless the applicant obtained leave to now run the point (Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1). In any event, there is no arguable substance to this complaint as the AAT clearly considered whether the applicant was a victim of persecution because of his political beliefs and alleged association with the BNP. The AAT gave clear and detailed reasons for why it was not satisfied as to these claims: see in particular [54]-[68] of its reasons for decision.

Second ground

12    By the second ground, the applicant claims that the primary judge erred in failing to find a lack of procedural fairness by the AAT because it failed to consider that he was physically abused for his political beliefs, and it did not accept him as a credible witness. Again, no such ground was put before the Court below. Moreover, the ground is without arguable substance because the AAT clearly turned its mind to the applicant’s claims that he feared physical harm arising from his success in escaping harm from Awami League supporters on two previous occasions as well as his initial claims that he had twice been attacked in public places by the League’s supporters: see the detailed reasoning on those claims in [56]-[58].

Third ground

13    By the third ground, the applicant asserts that the primary judge erred in not upholding his claim that the AAT failed to give him a reasonable opportunity to respond to independent evidence before the AAT which suggested that he would not be a victim of harassment for his political beliefs if he returned to Bangladesh. No such argument was run below and, in any event, it is without arguable substance. The applicant failed to identify what independent evidence he says the AAT failed to give him an opportunity to respond to. Nor did he identify the legal basis upon which the AAT was obliged to provide such an opportunity. Contrary to the applicant’s submission, the AAT did, on several occasions, bring to his attention independent country information, including information which supported the delegate’s opinion that merely being a supporter of the BNP would not lead to harm and those who were most at risk were not people like the applicant but rather political leaders and higher level activists: [68]. The AAT also raised with the applicant other issues sourced from country information reports: see for instance [49] and [50].

Fourth ground

14    By the fourth ground, the applicant asserts that the primary judge erred, in effect, in not finding that the AAT was wrong to not accept the persecutions he experienced, and he challenges the AAT’s adverse credit finding. But no arguable appealable error is identified in the primary judge’s rejection of these claims.

Fifth ground

15    By the fifth ground, the applicant appears to assert that the primary judge made an error for failing to find that the AAT had made some kind of legal error in applying s.36(2) of the Act. An argument of this kind was presented in the Court below, without success (see at [18]). The applicant has not identified any arguable appealable error in this part of the primary judge’s analysis and findings.

Sixth ground

16    In respect of the sixth ground, the applicant asserts that the primary judge erred in not finding that the AAT had refused his application on the ground that he would face punishment. Again this takes issue squarely with the AAT’s factual findings and fails to identify an arguable appealable error on the part of the primary judge.

Seventh ground

17    In respect of the seventh ground, the applicant asserts that the primary judge erred in failing to find that the AAT had not considered that he was discriminated against for his political beliefs, and that he shall be a victim of significant harassment for his political beliefs. But the AAT did consider at great length the applicant’s claims that he had a well-founded fear of persecution for reasons relating to an actual or imputed political opinion. It considered whether the claims made by the applicant met the requirements either of s 36(2)(a) or s 36(2)(aa) of the Act and it rejected those claims for the detailed reasons it gave. There is no arguable substance in this ground of appeal.

Conclusion

18    For these reasons I am not satisfied that the applicant has established a proper basis for the grant of leave to appeal. He has been unable to persuade me that there is sufficient doubt in the judgment below to warrant such leave.

19    The application for leave to appeal should be dismissed and the applicant ordered to pay the Minister’s costs.

Associate:

Dated:    21 February 2017