AVT16 v Minister for Immigration and Border Protection [2017] FCA 1432

FEDERAL COURT OF AUSTRALIA

AVT16 v Minister for Immigration and Border Protection [2017] FCA 1432 Appeal from: Application for leave to appeal: AVT16 v Minister for Immigration [2017] FCCA 1984

File number: NSD 1339 of 2017

Judge: BROMWICH J

Date of judgment: 1 December 2017

Legislation: Migration Act 1958 (Cth) ss 424A, 424AA

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: 13

Counsel for the Applicant: The Applicant appeared in person with the assistance of an interpreter

Solicitor for the First Respondent: Ms N Johnson of Mills Oakley Lawyers

Counsel for the Second Respondent: The Second Respondent filed a submitting notice save as to costs

ORDERS NSD 1339 of 2017

BETWEEN: AVT16 Applicant

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 application for leave to appeal be dismissed. 2. The applicant 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 application for leave to appeal from orders made by a judge of the Federal Circuit Court of Australia. His Honour summarily 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 applicant. 2 The applicant was born in Bangladesh. In 2008, when he was a young man, he went to Malaysia for five years, worked there and saved money. In January 2013, he returned to Bangladesh. In February 2013, he travelled back to Malaysia, then to Indonesia, and then by boat to Australia. He arrived in Darwin on 6 May 2013. On 5 September 2013, he applied for a protection visa. 3 The applicant's case for being granted a protection visa relied upon claims that he was threatened by members and supporters of the Awami League (AL) due to his association with the Bangladesh Nationalist Party (BNP). He claimed to have been involved with the BNP since he was in high school, when he was vice president of the student BNP group. Those threats were said to have been his motivation for going to Malaysia for five years. He said that when he returned to Bangladesh in January 2013, he opened a shop. A large group of men demanded a large sum of money from him at the shop and said that if he did not pay by 10 February 2013, he would be killed. He said that a group of men attended on his shop again on 11 February 2013 and beat him with a stick. He managed to escape and subsequently made arrangements to come to Australia. 4 On 12 November 2014, a delegate of the Minister refused the grant of a protection visa. The applicant applied for a review of that decision by the Administrative Appeals Tribunal. He appeared at a hearing of the Tribunal on 4 March 2016. On 22 March 2016, the Tribunal affirmed the delegate's decision. 5 The Tribunal's reasons are lengthy and detailed, dealing with the statutory framework for protection visas, both as to Refugees Convention claims and complementary protection claims. They detail evidence provided to the Minister's Department, the delegate's interview (which was listened to and compared with the delegate's reasons for factual accuracy) and the submissions and other material placed before the Tribunal, including a statement prepared by the applicant with the assistance of a registered migration agent. 6 Despite claiming to have occupied significant roles with the BNP and to have attended processions and rallies, the applicant had only basic knowledge about that political party, and could not identify the correct colours of the party flag. His claims were found to be implausible in key respects, as well as being vague and unconvincing. The Tribunal did not accept that the applicant was a credible witness and found him not to have been truthful. The Tribunal did not accept that the applicant had ever been actively involved in the BNP or was ever at risk of harm by the AL. While he was able to show a physical injury to his leg, the Tribunal was unable to accept that this could be attributed to being assaulted by members of the AL in 2007. His claims concerning his shop and large groups of men visiting were also not accepted. The applicant was essentially left with no factual substratum for his claims that could engage any basis for him to be given a protection visa. 7 On 14 April 2016, the applicant applied for judicial review of the Tribunal's decision. That application was summarily dismissed on 2 August 2017. The primary judge considered all four grounds of review, and found that none of them raised an arguable case. That was because the assertions made in each ground were found by his Honour to be manifestly unsustainable. A key part of this conclusion was that there was no basis for the applicant's assertions that his claims had not been addressed, given that those claims had manifestly been dealt with or were claims that were shown not to have been made to the Tribunal in the first place. The primary judge correctly described the Tribunal reasons as comprehensive and cogent. 8 A late claim of denial of procedural fairness was not allowed to be advanced by the primary judge, largely because it did not appear to have any substance. Similarly, his Honour was unable to see any basis for a claim that s 424A of the Migration Act 1958 (Cth) had not been complied with, but observed, in any event, that adverse material had been put to the applicant pursuant to s 424AA. 9 On 8 August 2017, the applicant applied for leave to appeal from the summary dismissal of his judicial review application by the primary judge. The grounds in that application were as follows: 1. Hon Judge Nicholas [sic] of the Federal Circuit Court failed to hold that the Tribunal committed a jurisdictional error when it failed to apply the correct test in relation to the Complementary Protection Visa Provision contained in section 36(2) (aa) of the Migration Act 1958. 2. Hon. Judge failed to hold that the Tribunal misconstrued the facts and asked several irrelevant questions to discredit the oral evidence . 3. The appellant was denied procedural fairness when the Hearing was not conducted freely and fairly.. 10 The application for leave to appeal was accompanied by an affidavit to which was annexed a draft notice of appeal in the following terms (verbatim): 1. Hon. Judge Nicholas [sic] of the Federal Circuit Court failed to hold that Administrative Appeal Tribunal committed a jurisdictional error when it failed to apply the correct test in relation to the Complementary Protection Provision contained in section 36(2)(aa) of the Migration Act. 2. Hon . Judge failed to hold that the AAT failed to separate the Claim to be Refugee and the fear of harm test for the provision of Complementary Protection. The Tribunal failed to understand that the complementary Protection criteria is intended to introduce greater efficiency , transparency and accountability into Australia's arrangements for adhering to its non-refoulment obligation under the International Covenant on Civil and political rights (ICCPR) The Hon. Judge ignore to hold that the RRT totally overlooked the intention behind introduction of Complementary Protection .. . 3. The Hon . Judge failed to hold that the Tribunal. Exceeded its jurisdiction or constructively failed to exercise its jurisdiction .. The Tribunal misconstuid the facts . 4. The Hon. Judge failed to hold that the Tribunal made inconsistent assertions on the credibility testimony . He was denied procedural fairness. 11 The applicant did not provide any written or oral submissions to support any of the above grounds. The Minister filed concise but comprehensive written submissions demonstrating that each and every ground in both documents was entirely without substance. The first ground in the application for leave to appeal provides no particulars of the Tribunal's failure to apply the correct test in relation to complementary protection; however, it is difficult in any event to see what error could be identified, given that the Tribunal's findings as to the claims made left no room for the complementary protection regime to apply. The second ground of the application for leave to appeal asserts that facts were misconstrued and irrelevant questions asked, without identifying what is being referred to. Given the detailed and comprehensive nature of the Tribunal's reasons, there is no support to be found for this ground. The third ground in the application for leave to appeal asserts that the Tribunal hearing was not conducted "freely and fairly" so as to deny the applicant procedural fairness, but there is no evidence and no particulars, and this assertion is contrary to the description of the process in the Tribunal's reasons. 12 As to the proposed grounds of appeal, the first ground is the same as the first ground in the application for leave to appeal and suffers from the same vices. The second proposed ground of appeal asserts a failure to separate the Refugees Convention claim from the complementary protection claim, but provides no basis for doubting the correctness of the approach by the Tribunal. The third and fourth proposed grounds of appeal provide no particulars to enable the otherwise apparently baseless allegations to be assessed. It must be accepted that, as submitted by the Minister, the Tribunal's reasons reveal that the applicant's claims were considered in detail, with comprehensive reasons given for rejecting them. 13 This application for leave to appeal is entirely devoid of merit. The proposed appeal has no prospect of success. The application must therefore be dismissed with costs. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromwich.