FEDERAL COURT OF AUSTRALIA

AKD17 v Minister for Immigration and Border Protection [2018] FCA 694

ORDERS

THE COURT ORDERS THAT:

1.    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

COLLIER J:

The appeal

1    This is an appeal from a decision of the Federal Circuit Court dated 30 October 2017 to dismiss an application for judicial review. The appellant sought to review the decision of the Administrative Appeals Tribunal (Tribunal), which set aside a decision of a delegate of the first respondent, the Minister for Immigration and Border Protection, to refuse to grant the appellant a Protection (Class XA) visa and substituted the Tribunal’s decision to refuse to grant the appellant a Temporary Protection (Class XD) visa.

Application for an adjournment

2    On 14 May 2018, the Queensland District Registry received correspondence from the appellant indicating that he would not be able to attend the hearing of this appeal on 16 May 2018 because he had a car accident, resulting in his car being a write-off and the appellant suffering a head injury and mental health issues. The appellant stated that his brother has been killed and that because of his physical and psychological illnesses he was not ready for the hearing. At the hearing, the appellant also stated that his doctor has recommended that he have an MRI test and that he wanted to argue his case in Court when he had recovered fully from from his illness.

3    The Minister opposed the adjournment and sought to proceed with the hearing. The Minister relied on the authority of NAKX v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1559 at [6] where Lindgren J explained that the test for granting an adjournment on medical grounds was whether the medical records addressed:

… the critical question whether, and if so why, the medical condition would prevent the appellant from … participating effectively in a court hearing.

4    Attached to the appellant’s letter to the Court was a copy of medical records from the Princess Alexandra Hospital. Those records indicated that:

    The appellant attended the Emergency Department on 18 February 2018 following a “car-vs-tree” motor vehicle accident.

    The appellant was discharged prior to a full review because he did not have Medicare, and would be required to pay $2,000 for a short stay admission.

    At that time the appellant stated that he “just wanted to go home because he felt very well”.

    The Registrar at the Princess Alexandra Hospital was comfortable with this approach and advised the appellant to return if his condition changed.

5    Further notations in the hospital medical records included that:

    the appellant “looks well”;

    he had “no obvious injuries”; and

    there were “no lacerations/bruises or over signs of head injury”.

6    There is no evidence before the Court of any illness affecting the appellant after 18 February 2018, either physical or psychological.

7    The appellant was given the opportunity to appear via telephone rather than attending the hearing in person. The appellant was assisted by an interpreter. At the hearing, it was apparent that the appellant was able to effectively articulate his arguments.

8    I do not consider that the appellant was unable to participate meaningfully in the hearing. I also accept the submissions made by the Minister that the state of the medical records provided by the appellant were unsatisfactory to justify his request for an adjournment.

9    In those circumstances, I refused to grant the request for an adjournment.

Background

10    The appellant is a 27-year-old citizen of Bangladesh who arrived in Australia as an unauthorised maritime arrival on 16 March 2013. The appellant applied for a Protection (Class XA) visa on 13 August 2013.

11    In 2014, the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) (the Amendment Act) was passed. One of the measured implemented by the Amendment Act by the enactment of reg 2.08F of the Migration Regulations 1994 (Cth) was that any Protection Class (XD) visa was automatically converted into an application for a Temporary Protection (Class XD) visa. Regulation 2.08F commenced on 16 December 2014 and applied to the appellant’s application.

12    On 2 February 2015, a delegate of the Minister refused to grant the appellant a Protection (Class XA) visa, apparently overlooking the operation of reg 2.08F. The decision of the delegate was affirmed by the Tribunal on 1 March 2016.

13    The appellant commenced judicial review proceedings in the Federal Circuit Court and on 10 June 2016, the Federal Circuit quashed the Tribunal’s decision to affirm the refusal of the Protection (Class XA) visa and remitted the matter for reconsideration. The Minister conceded that there had been jurisdictional error on the part of the Tribunal, which had erred in affirming the delegate’s decision to refuse to grant a Protection (Class XA) visa rather than a Temporary Protection (Class XD) visa.

14    The Tribunal heard the remitted matter and on 19 January 2017 decided to set aside the delegate’s decision and substitute its decision to refuse to grant a Temporary Protection (Class XD) visa.

The Tribunal’s decision

15    The Minister summarises the appellant’s claims before the Tribunal as follows:

    In February 2011, the appellant joined the Islamic Chhatra Shibir (ICS), which is the student wing of the Jamaat-e-Islami (JI). He became a popular member and organised meeting and protests and recruited ICS members.

    In May 2011, an ICS meeting he attended was the subject of an attack from Awami League (AL) members. The appellant suffered a fractured skull, lost consciousness and sustained other head injuries. After that experience, the appellant because disillusioned with the ICS and began distancing himself from them.

    From around the time of the May 2011 incidence, the appellant received low-level threats from AL members (notwithstanding his gradual disassociation from the ICS). These threats became more serous over time – culminating in serious death threats from around May 2012. Also, from around this time, the police (on behalf of the AL) were also looking for the appellant due to his ICS involvement. The appellant commenced living on the run to avoid the AL and/or the police – deciding, ultimately, to flee Bangladesh in 2013.

    There is still adverse interest in the appellant, evidenced by the fact that, in 2016, people (whom the appellant believed were either associated with the AL or police) came to his parents’ house every 2-3 weeks looking for him.

16    The Tribunal was prepared to accept that the appellant was involved that the appellant was associated with the ICS in February 2011, but only to the extent that the appellant was associated naively through the local mosque or local friends. The Tribunal considered that the extent of the appellant’s involvement was that he attended some meetings and helped out in a low-key way. However, the Tribunal considered that the appellant’s evidence was problematic in nature and was not prepared to accept that the appellant was ever actually a member of the ICS or that he had been involved in the ways he asserted.

17    The Tribunal had significant doubts about the truthfulness of the appellant’s claims in relation to the May 2011 incident because his evidence was vague and confused. The Tribunal also did not accept the appellant’s claims that the AL or the police had a continuing interest in him. This was because:

    his evidence was problematic; and

    it was implausible that the AL or police were interested in him given his limited involvement with the ICS and that he had been unharmed prior to leaving Bangladesh.

18    For these reasons, the Tribunal was not satisfied that the appellant faced any real risk of harm in Bangladesh on account of any ICS of JI involvement. The Tribunal, however, noted that the Minister had made his decision in relation to a Protection (Class XA) visa, and therefore substituted its decision to refuse the grant of a Temporary Protection (Class XD) visa.

The Federal Circuit Court proceedings

19    The appellant applied for a review of the Tribunal’s decision, and relied on the following grounds of review:

1.    The Applicant is a citizen of Bangladesh.

2.    The Applicant claimed that Australia owed protection obligations in respect of him.

3.    That the decision of the Second Respondent … was affected by legal error.

4.    Relevant information not considered.

20    The primary Judge found that there was no jurisdictional error on the part of the Tribunal and dismissed the application for judicial review. His Honour observed that the submissions of the appellant did not address the findings of the Tribunal, and that the real complaint of the appellant was that the Tribunal did not believe him.

21    His Honour continued:

37.    He approached this hearing as if it were a review of the decision itself, rather than a judicial review trying to determine a jurisdictional error. This mistake by the Applicant is understandable, given that these sorts of differences really are lawyers’ differences and laypersons, especially those for whom English is not their first language, would have great difficulty understanding the difference.

38.    The problem here for the Applicant is that he is really seeking a merits review. He has no grounds upon which to find an error by the Tribunal.

39.    The Applicant has fixated on conclusions that have been made by the Tribunal, has put together other evidence and now says that the Tribunal should have believed him. He has consistently asked this Court to simply just review his matter, to give him another turn and that he thinks that this time a Tribunal would definitely believe him, if I were to give him “another go”.

40.    That is not what I am here to do. My job is to decide whether or not there has been a jurisdictional error established. In this case, there has simply been no jurisdictional error.

41.    When I asked the Applicant for any submissions in reply, he spoke in English about the problem that he had with interpretation, and that a lot of the things that he was trying to say were not interpreted properly.

42.    This seemed to me to be a matter that had not been raised before and it certainly has not been particularised at all. The explanations or clarifications that the Applicant has given in his written submission again don’t detract from the conclusions made by the Tribunal.

43.    There was still vagueness on the part of the Applicant but that was probably attributable to his not really understanding the purpose of the hearing.

44.    Notwithstanding that there has to be certain liberties given by the Tribunal because of the fact that we are dealing with a person who does not have English as their first language, and who is making an application for protection, the overall evidence given to the Tribunal was such that the Tribunal was of the view that they could not accept the evidence of the Applicant.

45.    Whether I would do so or not, is not the question. The fact is that the Tribunal has said what it is that it has concluded and such a view was indeed open on the evidence before it.

46.    For those reasons, I cannot find that there is any jurisdictional error.

47.    I will now address the Applicant formally. I have gone through the decision of the Tribunal. I have looked at all of the things that you have said today and especially what you have said in your written submissions. Whilst you may be able to be upset that the Tribunal did not believe you, that conclusion was a conclusion that was open to the Tribunal. If the conclusion was open to the Tribunal, then there is no jurisdictional error.

48.    Therefore, if there is no jurisdictional error, then I must dismiss this application.

The grounds of appeal

22    The appellant seeks to rely on the following grounds of appeal:

1.    The Administrative Appeal Tribunal’s decision affected by jurisdictional error.

Particulars:

The Administrative appeal tribunal failed to consider a claims or integer of claims and failed to consider whether the applicant had a well-founded fear of persecution in the reasonable foreseeable future upon return to his own country of origin. The Tribunal had no jurisdiction to make such a decision because its reasonable satisfaction was not arrived in accordance with the provisions of the Migration Act 1958. The Tribunal denied the applicant procedural fairness by reaching conclusions that the applicant is not a credible witness and his claims were implausible. The Tribunal member in his decision records did not ask conventions relation questions whether the applicant had a fear of persecution in his own country of residence.

2.    The Administrative Appeals Tribunal made findings without evidence. The Administrative Appeals Tribunal rejected the applicant’s evidence before the Tribunal and failed to believe the applicant as a credible witness, such failure constituted a breach of s 425 of the Migration Act 1958 (Cth).

Particulars:

The tribunal in the decision records and interview failed to consider any evidence put by the applicant as credible, believable without any evidence. The honourable member has discredited the evidence by reason of the applicant’s inability to remember or recall various issues at the time of hearing. This is disputed, this information was available and dismissed without fair hearing.

23    The appellant seeks the following orders:

1.    The order of Federal Circuit Court of Australia dated on 30 October 2017 is set aside.

2.    An order that the First Respondent pay the applicant’s costs of these proceedings.

3.    Such further or other orders as the Court seem fit.

Consideration

24    The appellant has not filed written submissions in support of his grounds of appeal but made oral submissions at the hearing on 16 May 2018. The appellant made the following statements:

    There were errors in the Tribunal’s decisions.

    The Tribunal should not have thought that the appellant would be safe if he relocated to another district in Bangladesh and the appellant did not understand how the Tribunal could make this wrong decision.

    The appellant did not have documentation with him when he came to Australia because he arrived by boat. The appellant asked his brother in Bangladesh to get some documentation for him, but his brother was killed as a result of doing this.

    The appellant would not have come to Australia if he was safe in Bangladesh.

    The fact that appellant’s brother had had problems in Bangladesh meant that the appellant would also have problems if he returned.

25    At the hearing the Minister responded to the two points of substance made by the appellant, being the Tribunal’s consideration of whether the appellant would be safe if he relocated and the relevance of the request for documentation from his brother. The Minister submitted:

    As to the issue of relocation, the Tribunal did not have to go so far as to consider whether the appellant would be safe if he relocated because the Tribunal had simply found that there was no risk of harm to the appellant.

    As to the issue of information to be provided by the appellant’s brother, any such documentation would not be admissible in this appeal as it was not before the Tribunal.

26    I do not accept the Minister’s submission on the issue of relocation. Contrary to what was said by the Minister, at [48] of the record of decision the Tribunal found that the appellant would not be at risk of harm from JI because of his attempts to distance himself from the party. However, the Tribunal did accept at [50] that the appellant would face a real risk of persecution at the hands of the AL if he returned to his home district. At [51], the Tribunal accepted that there were substantial grounds for believing that there was a real risk that the appellant would suffer significant harm in his home district at the hands of the AL. The Tribunal then went on to consider the likelihood of harm if the appellant relocated, on the basis of the appellant’s circumstances and the country information available to the Tribunal. Ultimately, the Tribunal found that it would be reasonable for the appellant to relocate to a different area where he would not be at risk.

27    Notwithstanding this, I do not consider that the appellant has substantiated his claim that the Tribunal’s decision was wrong because of its conclusion that it was reasonable for the appellant to relocate. Further, the appellant has not demonstrated any error on the part of the primary Judge in finding that there was no jurisdictional error by the Tribunal. At the hearing of the appeal, the statements by the appellant as to the error on the part of the Tribunal appeared to be an attempt to have the Court reconsider the factual findings of the Tribunal regarding whether the appellant would be safe is he relocated to a different district. I am not permitted to engage in that manner of review in this appeal.

28    Further, in written submissions, the Minister identified three perceived problems with the appellant’s grounds of appeal:

    The grounds do not assert the existence of appellable error in the primary decision, but refer only to the Tribunal’s decision.

    The appellant did not rely on these grounds in the Federal Circuit Court and therefore requires leave to raise them in this appeal.

    The grounds are template grounds which are so broad and unparticularised in nature that they do not disclose the existence of any discernible error.

29    The Minister submitted that the appeal was liable to be dismissed for these reasons alone, but nonetheless proceeded in written submissions to respond to the substantive grounds of appeal “cast in their best light”.

30    In relation to ground 1 and the relevant “particulars”, the Minister submitted:

    Having regard to the Tribunal’s record of decision, there was no reasonable basis to believe that the Tribunal overlooked any essential component of the appellant’s claims.

    The appellant’s submission that the Tribunal had no jurisdiction to make its decision because its reasonable satisfaction was not arrived in accordance with the provisions of the Migration Act 1958 (Cth) (the Act) was misconceived and otherwise vague.

    A finding by the Tribunal that an applicant is not credible, or a finding that an applicant’s claims are implausible, does not result in there having been a denial of procedural fairness by the Tribunal.

    The Tribunal had no obligation to ask any particular questions of the applicant relating to the Convention and, in any event, the Tribunal’s record of decision demonstrated that the Tribunal explored at length whether the appellant had a genuine fear of persecution.

31    With to ground 2 and its particulars, the Minister submitted:

    The appellant provided no basis on which he asserted that the Tribunal made findings without evidence.

    Section 425 of the Act requires the Tribunal to invite an applicant to a hearing before it and that invitation must be real and meaningful. In these circumstances, the appellant was invited to and attended a hearing at the Tribunal. Section 425 of the Act is not breached because the Tribunal rejects evidence or otherwise does not accept the claims of an applicant.

    The Tribunal is not obliged to accept the evidence that it put to it. Further, the Tribunal is not required to be presented with evidence contradicting a claim by an applicant before holding that a particular assertion is not made out.

    The Tribunal’s decision did not appear, on the face of the record of decision, to turn on the appellant’s lack of recall of any particular matters. In any event, the weight the Tribunal puts on such considerations is a matter entirely for the Tribunal.

32    In my view, the grounds of appeal should fail for the reasons given by the Minister. They do not disclose any discernible error by the primary Judge, nor of the Tribunal. Further, these grounds were not agitated before the Federal Circuit Court and I do not consider that it would be appropriate to grant the appellant leave to rely on these fresh grounds of appeal, largely because they do not have any reasonable prospects of success (see VUAX v Minister for Immigration and Multicultural Affairs [2004] FCAFC 158; (2004) 238 FCR 588 at [46], [48]; BTM15 v Minister for Immigration and Border Protection [2016] FCA 888 at [21]), for the reasons identified in the substantive submissions of the Minister.

33    It is therefore appropriate to dismiss the appeal with costs.

Associate:

Dated:    17 May 2018