FEDERAL COURT OF AUSTRALIA

AYD16 v Minister for Immigration and Border Protection [2018] FCA 841

ORDERS

THE COURT ORDERS THAT:

1.    Leave to rely on grounds 1 and 4 of the Notice of Appeal is refused.

2.    The appeal be dismissed.

3.    The appellant to pay the costs of the first respondent, such costs to be taxed in default of agreement.

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

REASONS FOR JUDGMENT

(Revised from transcript)

DAVIES J:

1    The appellant has appealed the decision of the Federal Circuit Court of Australia (“FCC”) dismissing his application for judicial review of a decision of the Administrative Appeals Tribunal (“the Tribunal”) affirming the decision of a delegate of the Minister not to grant the appellant a protection visa.

2    The Tribunal rejected the appellant’s protection claims on the basis of adverse credibility findings.

3    The appellant’s judicial review application raised four review grounds, namely:

1.     The Tribunal failed to assess my harm on the basis of my support to the BNP [Bangladesh Nationalist Party].

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

3.     The Tribunal failed to consider my claim on the basis of my political opinion against the Awami League Party as an independent claim.

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

4    The FCC held that no jurisdictional error was established.

5    The appellant’s notice of appeal raises the following four grounds:

1.     The Judge of the Federal Circuit Court in his honourable judgement delivered on the 27 October 2017 failed error of law and relief under the judiciary Act. The Judge failed to find that the Administrative Appeals Tribunal (AAT) has not found any evidence in relation to my claims and thus its decision influenced by sufficient doubt.

2.     Honourable Judge failed to hold that the Tribunal made an error of law when it did not take up and separately deal with the factual issues. The Tribunal failed to find low profile political activities are mostly persecuted because of their role for the party like BNP [Bangladesh Nationalist Party]. The Tribunal failed to understand the persecution until political killing in Bangladesh under present dictatorial role in Bangladesh. The Tribunal member concluded that I will not suffer from any harm if I go to Bangladesh, which is not feasible.

3.     I was denied procedural fairness, when the Tribunal member made opinion based on assumption and possibilities without any proper investigation. The Tribunal failed to assess the current situation in Bangladesh where thousands of my party leaders AND works are arrested and killed by so called crossfire and harassed by the autocratic present Awami League Government & the Authority. It well established independent report like Amnesty International Country Reports. Present circumstance very danger for me, the Tribunal undermined the danger, I will face if I am compelled to return Bangladesh as returned asylum seeker. And also, I came by boat in Australia only protect my life.

4.     Besides, the Administrative Appeals Tribunal did not follow the proper procedure as required by the Act in arriving my protection visa merit review application. Thus, the procedures that were required by the act or regulations to be observed, in connection with the making of the decision were not observed.

    [Errors in original.]

Grounds 1 and 4 are new grounds which were not relied upon in the Court below and the appellant requires the leave of the Court to raise them on appeal. Leave is refused because, for the reasons below, neither ground has any merit. Although grounds 2 and 3 do not directly coincide with any of the grounds below, it is at least arguable that they bear some correlation to grounds 3 and 4, respectively.

6    I note that the grounds of appeal are virtually identical to another recent appeal determined in this Court (BGK16 v Minister for Immigration and Border Protection [2018] FCA 413 at [11]) and they appear to be template grounds of appeal without regard to the judgment below. In BGK16 v Minister for Immigration and Border Protection, the grounds raised on appeal were also said to be new grounds and, in that case, the Court refused leave to the appellant to rely on those grounds, for the reason that none of the grounds had any merit. Collier J agreed with the Minister’s submissions concerning grounds 1, 2 and 3 that the appellant appeared simply to cavil with the factual findings of the Tribunal. As to ground 4, Collier J stated that the appellant did not display how the Tribunal failed to follow the proper procedure as required by the Migration Act 1958 (Cth) (“the Act”) in arriving at its decision and no such failure was apparent from the Tribunal’s decision record.

7    The position is similar in this case. Grounds 1, 2 and 3, on their face, in substance, do no more than invite this Court to reach a different decision on the facts of the appellant’s case. As it is well established, this Court does not have jurisdiction to reconsider for itself whether a visa should have been granted to the appellant, nor does it have jurisdiction to review the factual findings of the Tribunal on the merits. The Court can only review the Tribunal’s decision for jurisdictional error.

8    If and to the extent that ground 2 correlates with ground 3 below, the primary judge was correct to dismiss that ground. Before the FCC, ground 3 asserted that the Tribunal had failed to consider the appellant’s claim on the basis of his political opinion against the Awami League party as an independent claim based on support for and involvement in his activities with the BNP. As the primary judge correctly stated, the Tribunal was not required either to address a claim that was not expressly made or did not clearly arise on the materials. Nothing in the material before the Court indicates that an independent claim was made in the terms as asserted in ground 3 of the judicial review application.

9    If and to the extent that ground 3 encapsulates ground 4 below, the primary judge was correct to hold that the Tribunal did consider the submission by the appellant’s representatives about the worsening violence and political situation in Bangladesh since the 2014 elections and the country information relevant to that issue. It was a matter for the Tribunal as to the weight to be given to the country information as part of its fact finding function: NAHI v Minister for Immigration & Multicultural and Indigenous Affairs [2004] FCAFC 10 at [13]. As the primary judge correctly stated, the Tribunal rejected the contention that the appellant was at risk because it did not believe that the appellant was a supporter or activist for the Bangladesh Nationalist Party (“BNP”). In those circumstances, as the primary judge held, the Tribunal considered the appellant’s claims as they were made and conducted its review with a “consciousness and consideration of the submissions, evidence and material” advanced by the appellant: cf. Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114 at [38].

10    Ground 4 does not identify in what way it is alleged that the Tribunal did not follow the “proper procedure as required by the Act” and there is nothing apparent on the face of the material to indicate that the Tribunal did not follow the proper procedure as required by the Act in arriving at its decision. To the contrary, the material shows that the appellant was invited to attend a hearing to present evidence and give arguments which he attended with the assistance of his representative and an interpreter of Bengalis language. The Tribunal’s decision demonstrates that the issue of the appellant’s credibility was discussed at the hearing. Further, the appellant’s lack of credibility had been the dispositive issue before the delegate and prior to the Tribunal’s hearing the written submissions of the appellant’s representative addressed this issue. The appellant was plainly afforded sufficient opportunity to give evidence and present arguments on the determinative issue on review, being his credibility: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] 228 CLR 152 at [47].

11    Accordingly, the appeal must be dismissed.

Associate:

Dated:    25 May 2018