FEDERAL COURT OF AUSTRALIA

CNT16 v Minister for Immigration and Border Protection [2017] FCA 1430

Appeal from:

CNT16 v Minister for Immigration [2017] FCCA 992

File number:

NSD 815 of 2017

Judge:

BROMWICH J

Date of judgment:

1 December 2017

Legislation:

Migration Act 1958 (Cth) s 36(2)(aa)

Date of hearing:

24 November 2017

Registry:

New South Wales

Division:

General Division

National Practice Area:

Administrative and Constitutional Law and Human Rights

Category:

No Catchwords

Number of paragraphs:

15

Counsel for the Appellant:

The Appellant appeared in person with the assistance of an interpreter

Solicitor for the First Respondent:

Mr R White of Mills Oakley Lawyers

Counsel for the Second Respondent:

The Second Respondent filed a submitting notice save as to costs

ORDERS

NSD 815 of 2017

BETWEEN:

CNT16

Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:

BROMWICH J

DATE OF ORDER:

1 DECEMBER 2017

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs as taxed or agreed.

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

REASONS FOR JUDGMENT

BROMWICH J:

1    This is an appeal from orders made by a judge of the Federal Circuit Court of Australia. His Honour dismissed an application for judicial review of a decision of the Administrative Appeals Tribunal. The Tribunal had affirmed a decision of a delegate of the first respondent, the Minister for Immigration and Border Protection, to refuse the grant of a protection visa to the appellant.

2    The appellant is from Bangladesh. He arrived at Ashmore Reef, off the Coast of Western Australia, on a boat from Indonesia on 4 December 2012. He had previously flown to Malaysia from Bangladesh, and then travelled by boat to Indonesia. He was initially “screened out” from Refugees Convention processes because he did not make any claims of fearing harm in Bangladesh. On 26 March 2013, he raised new claims of fearing such harm and was “screened in”. On 7 May 2013, he was granted a bridging visa.

3    On 18 June 2013, the appellant applied for a protection visa. On 14 August 2014, he was interviewed in relation to that application. He claimed to fear that he would be killed by members of the Awami League (AL) because of his political activities with the Bangladesh Nationalist Party (BNP) or by members of the BNP because he wanted to leave that political party. He later claimed to have been seriously harmed because of his imputed and actual support for the banned Jamaat-e-Islami party (JI).

4    On 12 December 2014, the appellant was refused the grant of a protection visa by a delegate of the Minister on the basis that no Refugees Convention grounds or complementary protection grounds had been established. The delegate provided detailed and comprehensive reasons for that decision. While the delegate accepted that the appellant was a low-level member of the BNP, the substance of the claims upon which he sought a protection visa were not accepted on credibility grounds. The delegate’s reasons for the adverse credibility findings were reasonably clear and concise.

5    On 17 December 2014, the appellant applied for a review of the delegate’s decision by the then Refugee Review Tribunal, which became a part of the Administrative Appeals Tribunal on 1 July 2015. The appellant attended a Tribunal hearing on 5 May 2016. The day before, written submissions were provided to the Tribunal on his behalf by a solicitor and migration agent, who also represented him at the Tribunal hearing. Those submissions asserted a fear of serious harm from members and supporters of the AL by reason of his imputed political opinion as a supporter of JI and his imputed political opinion as a supporter of the BNP. The appellant also asserted a fear of serious harm from members and supporters of the BNP as a deserter of that party by reason of having left Bangladesh. A claim was made for a the grant of a protection visa on complementary protection grounds, because of an asserted real risk of significant harm by way of extrajudicial killing or torture and cruel and inhuman treatment by AL members.

6    On 12 August 2016, the Tribunal affirmed the delegate’s decision, specifically addressing both the Refugees Convention grounds and complementary protection grounds in the context of the available evidence and other material and country information. The Tribunal found the appellant’s evidence to be vague, implausible, contradictory and unconvincing, including by reason of significant internal inconsistencies in his oral evidence and inconsistencies with his previous evidence. The Tribunal provided a detailed explanation as to how those conclusions were arrived at.

7    The Tribunal also addressed possible claims that were not specifically raised, including consideration of the appellant being a member of a particular social group comprising those who have departed Bangladesh illegally. However, the Tribunal was not satisfied that the appellant had either left his country illegally or that he had used a false passport.

8    The Tribunal found that the appellant fabricated his claims for a protection visa, and that he came to Australia because his family was poor and he hoped to have a more prosperous life here.

9    On 9 September 2016, the appellant applied to the Federal Circuit Court for judicial review of the Tribunal’s decision. That application made particularised allegations of a kind that asserted, but did not explain, various kinds of jurisdictional error. It also made assertions about the merits of the Tribunal’s decision. On 15 May 2017, the primary judge heard the appellant’s application and dismissed it, giving ex tempore reasons for judgment. His Honour specifically addressed each of the six grounds of review and the seven separate particulars raised by the application for review, finding that no jurisdictional error was identified, let alone proven. No error is discernible in his Honour’s determination of the matters arising from the judicial review application.

10    During the course of the hearing before the primary judge, the appellant raised an issue concerning alleged interpretation problems, but did not provide any indication as to what part of the Tribunal’s reasons were affected in any way. The primary judge was not satisfied that there was any problem of the kind alleged. That concern was not renewed in this appeal.

11    On 29 May 2017, the appellant filed the present notice of appeal, advancing two grounds which are considered below.

12    The appellant’s first ground of appeal alleged error by the primary judge in failing to find jurisdictional error on the part of the Tribunal by reason of its asserted failure to apply the correct test for complementary protection under s 36(2)(aa) of the Migration Act 1958 (Cth). In particular, it was asserted that the Tribunal had failed to separate the claim to be a refugee and the fear of harm test relevant to the question of complementary protection. However, no such error is apparent on the part of the Tribunal, nor on the part of the primary judge in failing to find such error. Both of the appellant’s claims for protection were rejected by the Tribunal on the basis that his material factual claims were found to have been fabricated.

13    The appellant’s second ground of appeal alleged error by the primary judge in failing to find jurisdictional error on the part of the Tribunal in its treatment of the factual issues. Again, no such error is apparent by the Tribunal or the primary judge. The Tribunal’s adverse credibility findings in rejecting the appellant’s material claims were findings of fact that were open to it on the available material.

14    The appellant also filed written submissions a short time before the appeal hearing. The Minister provided written submissions both prior to, and in response to, the appellant’s submissions. The appellant was unable to say anything further about his grounds of appeal or submissions at the appeal hearing.

15    None of the appeal grounds pleaded, or any part of the written submissions for the appellant, establish any error on the part of the primary judge, and none is otherwise apparent. Nor is any error of any kind discernible in the reasons of the Tribunal, let alone jurisdictional error. There is simply no substance to any part of this appeal. The appeal must therefore be dismissed with costs.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromwich.

Associate:

Dated:    1 December 2017