AWH16 v Minister For Home Affairs [2019] FCA 1005

FEDERAL COURT OF AUSTRALIA

AWH16 v Minister For Home Affairs [2019] FCA 1005 Appeal from: AWH16 v Minister for Immigration & Anor [2018] FCCA 3246

File number: NSD 2125 of 2018

Judge: O'CALLAGHAN J

Date of judgment: 29 May 2019

Date of publication of reasons: 27 June 2019

Legislation cited: Migration Act 1958 (Cth) s 36(2)

Date of hearing: 29 May 2019

Registry: New South Wales

Division: General Division

National Practice Area: Administrative and Constitutional Law and Human Rights

Category: No catchwords

Number of paragraphs: 27

Counsel for the Appellant: The appellant appeared in person (with the aid of an interpreter)

Solicitor for the Respondents: Ms Perotti of Sparke Helmore

ORDERS NSD 2125 of 2018

BETWEEN: AWH16 Appellant

AND: MINISTER FOR HOME AFFAIRS First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

JUDGE: O'CALLAGHAN J DATE OF ORDER: 29 May 2019

THE COURT ORDERS THAT:

1. The appeal be dismissed. 2. The appellant pay the first respondent's costs to be agreed or assessed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(Revised from transcript)

O'CALLAGHAN J: 1 This is an appeal from a judgment and orders of a judge of the Federal Circuit Court of Australia (Federal Circuit Court) made on 29 October 2018 dismissing an application for judicial review of a decision of the second respondent (the Tribunal). 2 The appellant is a citizen of Bangladesh. He arrived in Australia on 3 January 2013 as a so-called "irregular maritime arrival." 3 In May 2013, the appellant applied for a Protection (Class XA) Visa. That application was refused by a delegate of the Minister on 28 October 2014. The appellant then applied to the Administrative Appeals Tribunal (the Tribunal) for review of the delegate's decision. 4 The appellant appeared at a hearing before the Tribunal in February 2016, and on 28 March 2016 the Tribunal affirmed the delegate's decision to refuse the grant of the visa. 5 Before the delegate and the Tribunal, the appellant relevantly made a number of claims. He said that he claimed to fear harm from the Awami League (AL), a political party in Bangladesh. He said that he had returned to Bangladesh in August 2012, having lived and worked in Malaysia for the previous 13 years. The appellant claimed that on 26 August 2012 he was home alone when four masked men entered his house at 2:30am with guns, and that a gun was held to his head, and that he was told to do everything they said. 6 The appellant claimed that those masked men demanded keys to the "valuables cupboard", which he gave them, and that the men then took everything out of the cupboard. The appellant said that the men took USD65,000 in cash, together with gold, valuable wallets and jewellery. He claimed that it was the AL who robbed him. He also claimed that the day after that incident he received a threatening letter from the men who had robbed him, telling him that they would be returning the next day and demanding payment of a sum of 2,000,000 Bangladeshi Taka, or they would kill him. 7 The next day, the appellant took the letter to police who, he claimed, said that he should expect such threats, because he had returned from overseas and would be perceived as wealthy. The appellant claimed that it was not safe for him to remain at his home in Bangladesh, so he went and stayed with a friend. He also claimed that he had been told on 28 August 2012, the day after the claimed threat letter, that some men had burned down his house and all his belongings. 8 The appellant claimed to fear harm from the AL if he returned to Bangladesh because he did not give them the money they demanded – something that he said would make them assume that he supported the opposition political party. 9 In its reasons for affirming the delegate's decision to refuse the grant of a protection visa, the Tribunal records that it put a number of its concerns to the appellant at the hearing. Those concerns included that the Tribunal found it difficult to accept that the appellant would have thought it safe to carry back USD65,000 in cash to Bangladesh, and that on the evidence before the Tribunal it did not appear that "one of the five reasons set out in the Refugees Convention had been an essential and significant reason why he had been robbed", or that he was not protected by the police for one of those reasons. 10 In its conclusions on the question of the appellant's credibility, the Tribunal found it very difficult to accept that there was any truth in the claims he had made in support of his application. The Tribunal said that the appellant had said that he believed that the robbers were associated with the AL, but had not suggested that they had robbed him for reasons of his real or imputed political opinion. 11 As to the appellant's claim that the AL would think that he had joined the opposition party because he did not pay them the money they demanded, the Tribunal found that "there is nothing in [the appellant's] evidence to suggest that this is true, and even [the appellant] himself said that this was just a guess." 12 The Tribunal also found that there did not appear to be any basis in the evidence for any of the claims that the appellant had made, and considered that they were baseless speculation. In particular, the Tribunal did not accept that the appellant had brought back USD65,000 in cash, or that he had been subsequently robbed of everything, as he had claimed. Further, the Tribunal did not accept that a threat letter had been left in the appellant's mailbox, or that the police in Bangladesh had demanded money from him. The Tribunal therefore found that the appellant did not meet either criteria for the grant of the protection visa and affirmed the delegate's decision. 13 Having rejected the totality of the appellant's claims, and having separately concluded that the country information did not support the appellant's claimed fear of harm as a result of not holding a passport, the Tribunal found that he was not a person to whom Australia had protection obligations under ss 36(2)(a) or 36(2)(aa) of the Migration Act 1958 (Cth), and accordingly affirmed the decision under review. 14 The Tribunal's reasoning in respect of the complementary protection claim is set out at [32] and [33] of its reasons. 15 By an application to show cause, the appellant then sought judicial review of the Tribunal's decision in the Federal Circuit Court. The application initially advanced two grounds. Subsequently, the appellant sought to rely on two additional written submissions, which it later transpired had been prepared by a solicitor. It is unnecessary here to record the sorry circumstances in which the primary judge later ordered that the costs of the hearing be paid by the solicitor who had prepared those documents, because the contentions contained in those submissions are no longer pursued. 16 The primary judge dealt with two grounds, which are the same grounds that are contended for in this appeal. Those grounds, which the judge called grounds one and two, are set out at [14] of the judge's reasons. They are as follows: 1. The AAT made a jurisdictional error when it mistook and misconstrued the facts. The AAT discarded all of the oral and written evidence without giving any solid reasons. The AAT failed to apply the correct test in relation to Complementary Protection provision contained in section 36(2)(aa) of the Migration Act. It did not follow Rules of Real Risk Test in assessing grounds presented by the applicant for believing foreseeable consequences if the applicant removed from Australia to Bangladesh. Particulars The AAT failed to elaborate the meaning of "Significant harm" for the purpose of the Complementary protection criterion as defined in Subsection 36(2A) of the Act. Applicant claims that the AAT did not elaborate in finding of reasons what is definition of Substantial background and Marginal backgrounds. The AAT failed to give a reasonable explanation about the circumstances for Bangladesh in which Substantial Backgrounds will cover. The applicant claims that the AAT used a limited information about the Bangladesh current situations and made decision with closed mind. Every country has different circumstances and it cannot be apply for one particular country. The Applicant claims that he was robbed by the supporters of the Awami League which is in power. The applicant wanted to present his argument that the political party in power was doing the most atrocities at the moment in Bangladesh. The applicant said that Awami League could afford to do these atrocities because they were covered by the political power. The AAT did not want to believe that the robbers were connected to Awami League and they have connection with the Government. The applicant said that his incident was in front of the news but the in reality the common people on the streets or the common masses who did not have political clout were facing deaths or they consistently struggling to be alive. [2.] The applicant claims he was denied natural justice and procedural fairness when his all of the oral and written evidences were treated as false without any proper investigation by the First or Second Respondents. Particulars: The applicant said with the firm believe that reason behind robbery was political and it comes under one of the five reasons set out in the Refugee Convention. The reason behind robbery was political. The AAT made decision with preoccupied thought that the applicant's claim was not political. Because of that reason the AAT discredited all the written and oral evidences presented by the applicant. Applicant claims that he was denied procedural fairness. 17 In relation to ground one, the primary judge held that it sought impermissible merits review because it sought to do no more than disagree with the Tribunal's findings. The primary judge held that there were solid reasons for rejecting the appellant's claims, in particular because of the adverse view that the Tribunal formed about the credibility of his evidence with respect to his claims. 18 Ground two was, and remains, an assertion that the Tribunal was biased, and that the appellant had been denied natural justice because the Tribunal found his oral and written evidence to be false. In essence, the primary judge held that the findings made by the Tribunal were reasonably open to it, and that the Tribunal had given the appellant opportunity to respond to its concerns. The primary judge therefore rejected ground two, including the wholly unparticularised allegation of bias. 19 In his notice of appeal filed on 19 November 2018 in this court, the same two grounds contended for in the Federal Circuit Court are again relied upon. At the hearing this morning, I confirmed with the appellant that he sought to rely on a written submission headed "Submission of the Applicant." I also asked the appellant whether he wished to add anything by way of oral submission to his written document. He said that he did not wish to. 20 As to ground one, the written submission is as follows: I submit to the Honourable Court below failed to understand the term 'significant harm' as defied (sic) in section 36(2A) of the Migration Act… 21 The submission continued: I submit that in my application I have pointed out my circumstances in Bangladesh, and the second respondent have failed to apply the correct test as mentioned in section 36(2)(A) of the Migration Act 1958. Section 36(2A) stated chronologically what constitutes 'significant harm' and my evidence suggests that I was subject to torture by the ruling Bangladesh Awami League Party… 22 In my view, the primary judge was correct to conclude that ground one rises no higher than seeking impermissible merits review. Insofar as the ground refers to the complementary protection test in s 36(2)(aa) of the Migration Act, his Honour was also correct to say that the Tribunal did set out the test for complementary protection in its decision record and made specific findings in relation to it. In my view, those findings are unimpeachable. 23 There was no error in the primary judge's findings that there was no evidence before the court to support any argument that the Tribunal mistook or misconstrued the facts, and the Tribunal's conclusions were reasonably open to it. It follows that ground one does not establish any jurisdictional error in the reasons of the Tribunal. 24 Ground two, which is set out above, claims that the appellant was denied natural justice and procedural fairness by the Tribunal, and was regarded by the primary judge as also constituting an allegation that the Tribunal was biased. The particulars also allege that the Tribunal's decision was "preoccupied" or had "a preoccupied view" of the appellant's claims. 25 In his written submission relied on in this appeal, the appellant says this: In assessing my claims in relation to whether the robbery was politically motivated or not the tribunal asked himself a wrong question. The AAT discredited my evidence without giving a reason why my claims are not accepted. The AAT before questioning my credibility as a witness did not put me on notice. 26 As the primary judge found, there was nothing in the reasons of the Tribunal to suggest that it did not bring an open mind to the appellant's application. The primary judge was, in my view, correct to find that the mere fact that the Tribunal had made adverse findings against the appellant cannot found an inference of bias, as ground two and its particulars may be taken to suggest. As the primary judge also observed, the appellant is, in fact, seeking to take issue with the fact that the Tribunal did not accept his claims. Such a rejection of claims cannot constitute a denial of natural justice or procedural fairness. 27 In circumstances where, on the basis of its credibility findings, which were reasonably open to the Tribunal, it rejected that the appellant was ever robbed, and that nothing in the material reveals the remotest suggestion that the Tribunal had prejudged the matter or denied the appellant procedural fairness, ground two must be rejected. The appeal must therefore be dismissed, with costs. I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Callaghan.