FEDERAL COURT OF AUSTRALIA APT16 v Minister for Immigration and Border Protection [2017] FCA 318 Appeal from: APT16 v Minister for Immigration & Anor [2016] FCCA 2572 File number: NSD 1694 of 2016 Judge: JESSUP J Date of judgment: 23 March 2017 Legislation: Migration Act 1958 (Cth) s 36 Date of hearing: 21 February and 23 March 2017 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 10 Counsel for the Appellant: The appellant appeared in person with the assistance of an interpreter Counsel for the First Respondent: Mr L Leerdam Solicitor for the First Respondent: DLA Piper Counsel for the Second Respondent: The second respondent filed a submitting notice ORDERS NSD 1694 of 2016 BETWEEN: APT16 Appellant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: JESSUP J DATE OF ORDER: 23 MARCH 2017 THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the costs of the respondent Minister, not including the costs of 21 February 2017. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT JESSUP J: 1 This is an appeal from a judgment of the Federal Circuit Court of Australia given on 16 September 2016, in which an application for judicial review of a decision of the Administrative Appeals Tribunal made on 2 March 2016 to affirm an earlier decision of a delegate of the respondent Minister not to grant the appellant a protection visa under the Migration Act 1958 (Cth) ("the Act") was dismissed. 2 The appellant's claim in the Tribunal was that he had a well-founded fear of persecution in Bangladesh, the country of his citizenship, should he be required to return there, for the reason that he was a Wahabi Muslim, as it was described. He was unsuccessful in the Tribunal because his claim to be, and his evidence that he was a Wahabi were rejected. The Tribunal said: Considered cumulatively, the concerns the Tribunal holds about the applicant's credibility lead the Tribunal to find that he is not a witness of truth and the account of events on which his protection claims are based is false. Accordingly, while the Tribunal will accept that the applicant is a Sunni Moslem, the Tribunal disbelieves his claims that he and his family are Wahabis. Later, the Tribunal said: Because the applicant is not a witness of truth and because the account of events on which his protection claims are based is false, the Tribunal has no credible evidence that the applicant ever suffered harm in Bangladesh and that anyone in Bangladesh seeks to harm him. There is no credible evidence as to why the applicant left Bangladesh and why he does not want to return there. It was because the Tribunal wholly disbelieved the appellant's case for holding a fear of persecution that it rejected his claims both under paras (a) and (aa) of subs (2) of s 36 of the Act. 3 In his case in the Federal Circuit Court, the appellant relied upon four grounds: (1) In making the decision, the Refugee Review Tribunal acted without jurisdiction or in excess of jurisdiction when it failed to take into account relevant considerations of Complementary Protection Provisions. (2) The applicant claims that the AAT did not consider relevant factors of the fear of persecutions when the applicant will return to Bangladesh. The AAT failed to identify the difference between serious harm and significant harm. (3) The Tribunal failed to apply the correct test in relation to the Complementary Protection Provision contained in section 36(2)(aa) of the Migration Act 1958; And although not numbered as such – (4) The Tribunal made a jurisdictional error when it did not follow Rules of Real Risk Test of persecution and harm. 4 Of those grounds, the primary Judge said: The problem with each of these grounds is that none of them address the actual reasons of the Tribunal. Those reasons, as I have indicated above, were based upon findings of fact turning upon the Tribunal's conclusion that the applicant was not a credible witness and that he had fabricated all of his claims. 5 In his notice of appeal in this Court, the appellant advances the following three grounds: (1) Hon Judge Smith of the Federal Circuit Court failed to hold that the Tribunal committed a jurisdictional error when it failed to apply the correct test of persecution in relation to the Complementary Protection Visa Provision contained in section 36(2)(aa) of the Migration Act 1958. The AAT failed to separate the claim to be refugee and fear of harm test for the provision of the Complementary Protection. (2) Hon 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 difference between a Reasonable Relocation and Unreasonable Relocation. The Tribunal failed to understand the geographical situation of Bangladesh and concluded that the appellant will not suffer from any harm if he goes to other areas which is not feasible. (3) I was denied procedural fairness when the Tribunal made opinion based on assumption and possibilities. The Tribunal failed to assess the current situation in Bangladesh where thousands of wahabism workers are arrested recently and harassed by the Awami League Government Authority. In assessing danger to me the Tribunal undermined the danger I will face if I compelled to return to Bangladesh as a returned Asylum seeker. 6 As counsel for the Minister pointed out, only the first of these grounds corresponds even approximately with anything put to the Federal Circuit Court by the appellant. As was the case below, likewise in this Court, the appellant's grounds and the reasons of the Tribunal pass each other like ships in the night. The Tribunal never got to the stage of matching the established facts against the complementary protection visa provisions, and was never required to consider the details of the test arising under section 36(2)(aa). This was so because the entirety of the appellant's factual case was rejected. Whether that case might have crossed the bar either under para (a) or (aa) of s 36(2) of the Act was not an issue which ever confronted the Tribunal. The facts which might have come close to a case under either provision simply had not been established. 7 Likewise, with respect to the second and third grounds upon which the appellant now seeks to rely, jurisdictional matters of the kind referred to in them were irrelevant to the way the Tribunal disposed of the appellant's case. It is clear from a reading of the Tribunal's reasons that the matter of relocation never arose. Further, what the appellant refers to in his third ground as the current situation in Bangladesh never troubled the Tribunal because the Tribunal rejected the underlying proposition that the appellant himself practised Wahabi Islam in Bangladesh. 8 In submissions made on appeal, nothing which the appellant put came to terms with these fundamental weaknesses from which his case suffered in the Federal Circuit Court, and which continue to afflict the grounds upon which he relied in this Court. His submissions here focused entirely on the factual assertion that he would be severely harmed, even killed, as I understand his point, were he to return to Bangladesh. Those matters are not within the competence of this Court to address. This Court's role is to consider whether the Federal Circuit Court erred in its disposition of the appellant's case, and the Federal Circuit Court's role, in turn, was to consider whether the Tribunal failed to exercise, or exceeded, its jurisdiction or otherwise fell into jurisdictional error. At neither level was it open to the appellant to seek findings of fact different from those made by the Tribunal. 9 Nothing which the appellant expressed in his grounds of appeal, and nothing which he put in his submissions in Court, casts even the slightest doubt upon the correctness of the conclusion reached, and the orders made, by the Federal Circuit Court. 10 In the circumstances, the appeal must be dismissed. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup. Associate: Dated: 29 March 2017