FEDERAL COURT OF AUSTRALIA

AHC16 v Minister for Immigration and Border Protection [2017] FCA 152

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant pay the first respondent’s costs.

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

REASONS FOR JUDGMENT

Revised from transcript

KATZMANN J:

1    The applicant is an asylum seeker from Bangladesh. He arrived in Australia by boat on 28 March 2013, and on 2 July 2013 applied to the Minister for a protection visa claiming to fear persecution in his country of nationality for political reasons. The Minister’s delegate, who dealt with his application, was not satisfied that he met the relevant criteria for the grant of the visa. The applicant sought review of that decision in the Refugee Review Tribunal (now the Administrative Appeals Tribunal), but the Tribunal was not satisfied of those matters either. He then applied to the Federal Circuit Court for judicial review, but at a show cause hearing the primary judge determined that he had no arguable case for the relief claimed and dismissed his application under r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (“FCCR”).

2    The applicant wishes to appeal from that judgment but, as the judgment is interlocutory (FCCR 44.12(2)), he requires leave to do so: Federal Court of Australia Act 1976 (Cth), s 24(1A). An application for leave to appeal must be filed within 14 days of the publication of the judgment or the making of the orders: Federal Court Rules 2011 (Cth), r 35.13. The applicant did not file his application within the 14 day period and now seeks an extension of time.

3    His explanation for the delay, included in an affidavit filed in support of his application, is that he was misinformed by a friend that he had 21 days to appeal and he tried to file a notice of appeal on the 21st day after the judgment was published but the Registry declined to accept it. The application annexed a copy of the primary judge’s reasons but not the Tribunal’s decision record or any other document.

Background

4    Having regard to the paucity of material before the Court, I am reliant on the primary judge’s account. What follows is derived from his Honour’s reasons.

5    In a statutory declaration attached to his visa application the applicant claimed that he was at risk of serious harm in Bangladesh because he refused to support the ruling Awami League. He stated that members of the League had visited him at home asking for support and that when he declined to give it they threatened reprisals. At first, he said, he did not take them seriously but, after his wife was killed, he feared for his life and went into hiding. He said that he took the death of his wife as a message. While he was in hiding he was told that members of the Awami League were looking for him. He said that he considered that he needed to leave the country because the League was “everywhere” and so nowhere in Bangladesh was safe.

6    The Tribunal was not satisfied that the applicant was at risk as he had alleged because it was not satisfied that he had been truthful about critical aspects of his claim. In the result it rejected everything he said about his relationship with the Awami League, including his claim that his wife had been killed by people with connections to the League. Indeed, it did not accept that either he or any member of his family was of adverse interest to anyone in Bangladesh for any reason. As the primary judge put it, the Tribunal found that:

a)    The applicant’s oral evidence as to when he was married was inconsistent with that contained in his protection visa application and in one of the documents he provided.

b)    The applicant’s failure to mention his brothers’ political activity until prompted by the Tribunal, and his statement that no one else in his family was politically active, were inconsistent with the claims he had previously made. Nor did the Tribunal accept the applicant’s explanation for the inconsistencies in his account of how many times the AL had sought him out on the day of his wife’s disappearance.

c)    The applicant’s accounts of the events surrounding the crimes claimed to have been committed against his wife varied over time. The Tribunal noted in particular the contradictory evidence provided by the applicant as to the number of times that the AL had sought him out at his home.

d)    The applicant’s claim that he had been able to successfully hide from the AL for two or three months after his wife’s death at his brother-in-law’s house in a nearby village was not credible. Further, the Tribunal considered that various discrepancies between the documents provided by the applicant and his oral evidence, including the date of his wife’s death, whether his wife’s parents were able to report the crime to police and the whereabouts of his wife’s body, reflected poorly on his credibility and the reliability of his evidence generally.

In addition, the primary judge noted:

The Tribunal also referred to two claims advanced by the applicant for the first time at the hearing. While the Tribunal had granted the applicant two short adjournments during the hearing, it was not prepared to accept his claim that when he thought about “these things” his “brain does not work, and it feels like he cannot give a lot of information correctly as well.” Similarly, the Tribunal found it implausible that the applicant would fail to raise at any point before the hearing, his claim that when AL members came to his family home but were unable to find him, they would beat his family, and that AL members had taken land from his family.

The proceeding in the court below

7    The applicant’s show cause application listed three grounds (as written):

1.    The Tribunal failed to exercise its jurisdiction by failing to consider all aspects of my claims.

2.    The Tribunal failed to consider my claim on the basis on my political opinion against the as an independent claim.

3.    The Tribunal failed to assess the escalating political violence in Bangladesh since 2012.

8    No particulars of these alleged errors were included in the application and the applicant filed no submissions.

9    When invited by the primary judge to expand on these claims, he apparently failed to do so, merely complaining that the Tribunal was wrong to disbelieve him. According to the primary judge, he also claimed that the situation in Bangladesh was “poor and deteriorating”, his family in Bangladesh is destitute, and there is nothing for him there. He told the court that he was willing to go anywhere but Bangladesh.

10    The primary judge considered that the applicant’s complaints were confined to the merits of the Tribunal’s decision, that they raised no jurisdictional error, and that there was no discernible jurisdictional error on the face of the Tribunal’s reasons. As for the grounds themselves (omitting footnotes to the authorities cited) his Honour said:

15.    Ground One contends that the Tribunal failed to consider all aspects of the applicant's claims. The ground is wholly unparticularised and is a bare assertion. It is not apparent, either from Ground One or from the evidence before the Court which aspect of his claims the applicant alleges the Tribunal failed to consider. The Tribunal's decision record reveals that the Tribunal considered the applicant's claims in detail and, on the basis of its adverse credibility findings, rejected those claims.

16.    It is well established that the Tribunal is not required to accept uncritically any and all claims advanced by the applicant. Further, credibility findings are a matter par excellence for the Tribunal. Ground One does not raise an arguable case that the Tribunal committed a jurisdictional error.

17.    By Ground Two, the applicant contends that the Tribunal failed to consider his claim to fear harm on the basis of his political opinion as a separate and independent claim. The Tribunal's decision record makes plain that the Tribunal considered whether the applicant was of adverse interest to anyone in Bangladesh for reason of his political opinion, but concluded that he was not. Taken at its highest, Ground Two does no more than disagree with the findings and conclusions of the Tribunal. Ground Two does not disclose any arguable case.

18.    Ground Three is a contention that the Tribunal failed to consider the general escalation of political violence in Bangladesh since 2012. There is no evidence before this Court to suggest that any such claim was ever advanced by the applicant, either before the Delegate or the Tribunal.

19.    It is the function of the Tribunal to respond to the case that the applicant advances. It cannot be a jurisdictional error on the part of the Tribunal to fail to respond to a claim not advanced by the applicant or a claim that does not clearly arise on the material before it.

20.    Ground Three does not specify how the applicant would be particularly affected by the general escalation of political violence in Bangladesh. In any event, where the Tribunal found that the applicant would not suffer from harm because of his imputed political opinion, it would logically follow that he would not suffer harm from generalised political violence.

21.    Further, insofar as the applicant may be understood to complain that the Tribunal did not consider his risk of harm due to generalised violence in Bangladesh, s.36(2B)(c) of the Migration Act 1958 (Cth) (Migration Act) specifies that an applicant will not be at real risk of significant harm where the risk is one faced by the population of the country generally and not by the applicant personally.

22.    For these reasons, Ground Three does not raise an arguable case for the relief claimed.

The application in this Court

11    The application relies on three grounds which are replicated in the draft notice of appeal:

1.    The trial judge erred in considering the irreparable loss of the appellant due to political affiliation of appellant’s father and brother.

2.    The trial judge erred in considering that the Second Respondent made an error in respect to the political stand of appellant was denied by the Second Respondent without any basis.

3.    The trial judge erred in considering that the constructive failure of the Second Respondent in determining the claim of the appellant.

12    The applicant did not file any submissions in support of his application. When given the opportunity at the hearing, he said this:

Whatever I said to them [meaning the Tribunal] was the truth and I’m not a very educated person. So whatever I said to [the Tribunal], I could say I said, but [the Tribunal] did not believe me because I’m not educated.

13    When I explained to the applicant that this application was concerned with the judgment of the Federal Circuit Court, and it was for him to point to error on the part of the court, not only did he say nothing about the matters raised by the application itself and the draft notice of appeal, but he said that he was not satisfied that the court made any mistake and had nothing further to say.

14    The Court’s discretion to extend the time to apply for leave to appeal is at large. That is to say, it is unfettered by express limits. Be that as it may, the discretion must be exercised judicially and in the way that best promotes the overarching purpose of all the civil practice and procedure provisions applicable in proceedings before the Court. That purpose is “to facilitate the just resolution of all disputes (a) according to law; and (b) as quickly, inexpensively and efficiently as possible”: Federal Court of Australia Act, s 37M.

15    The delay is short (the application was filed seven days outside the requisite period) and, notwithstanding the Minister’s submission to the contrary, the explanation for the delay is acceptable. There is no evidence to indicate that the Minister is prejudiced by the delay and the Minister does not make any such claim. The real question is whether the application for leave to appeal has any merit.

16    Generally speaking, no court will grant leave to appeal unless two conditions are satisfied: first, that the decision being challenged is attended by sufficient doubt to warrant its reconsideration on appeal; and secondly, that, assuming the decision were wrong, substantial injustice would result: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-9. On an application for an extension of time to seek leave to appeal, then, the question of whether the application has any merit devolves into a question of whether there is an arguable case that the decision under challenge is affected by appealable error and whether, on the assumption that it is, there is an arguable case that substantial injustice would result.

17    Here, it is unarguable that substantial injustice would result if the decision below was wrong, but in my view it would be futile to extend the time to enable the applicant to seek leave to appeal because the application would be bound to fail.

18    The first proposed ground of appeal wrongly assumes that the primary judge was entitled, if not obliged, to decide whether the factual bases for the applicant’s claims to fear persecution were made out. Yet, the jurisdiction of the Federal Circuit Court is limited by the terms of the Migration Act to review for jurisdictional error: see Migration Act, s 474 and Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476. For this reason, the first proposed ground raises no basis for impugning the primary judge’s decision.

19    The second proposed ground is doomed to fail for the same reason. It, too, is founded on the erroneous assumption that the court had jurisdiction to consider whether the Tribunal came to the wrong conclusion about the applicant’s claimed political affiliations.

20    The third proposed ground contains a broad statement alleging a constructive failure to exercise jurisdiction. In the absence of any submission to elucidate it, and in the absence of anything on the face of the material before the Court which supports it, I am not persuaded that this proposed ground provides any justification for concluding that there is an arguable case of appealable error.

21    For these reasons the application must be dismissed. The applicant should pay the Minister’s costs.

Associate:

Dated:    24 February 2017