COY16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

1. The applicant's application for an extension of time to file a notice of appeal be refused.
2. The applicant pay the first respondent's costs of the application. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

O'BRYAN J: 1 By application lodged on 17 June 2022, the applicant seeks an extension of time under r 36.05 of the Federal Court Rules 2011 (Cth) in which to appeal a decision of the Federal Circuit and Family Court of Australia (Div 2) made on 28 April 2022 in COY16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 294 (PJ). 2 Rule 36.03 of the Federal Court Rules 2011 (Cth) requires an appeal to be filed within 28 days which, in the present case, was by 26 May 2022. The application is accordingly about three weeks out of time. By affidavit affirmed 14 June 2022, the applicant deposed that his partner gave birth to their baby on 20 May 2022 in an emergency caesarean at Sunshine Hospital. The applicant further deposed as follows: We both had no family and friends support here and I had to be there with girlfriend as she had pregnancy complications and a difficult labour. I was so involved emotionally and physically in being a father for the first time that I could not find the time to prepare for the lodgement of the appeal to the court. She also needed me for 24hrs since the discharge of the hospital and still is in a critical health state. 3 The Minister did not contest that the applicant's evidence provided a reasonable explanation for the delay in filing the application, and the Minister acknowledged that no prejudice was suffered by reason of the short delay. The principal issue on the application is, therefore, whether the appeal has sufficient prospects of success to warrant the extension of time: see Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-9 (Wilcox J); MZABP v Minister for Immigration & Border Protection [2016] FCAFC 110 at [21]-[23] and [38] (Tracey, Perry and Charlesworth JJ); Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; 403 ALR 604 at [13]-[19] (Kiefel CJ, Gageler, Keane and Gleeson JJ) and [61]-[63] (Gordon, Edelman and Steward JJ). 4 For the reasons that follow, I consider that the grounds of appeal stated in the draft notice of appeal have no prospect of success. 5 The applicant is a citizen of Bangladesh. He arrived in Australia on 6 May 2013 as an unauthorised maritime arrival. On 30 August 2013, the applicant applied for a protection visa under the Migration Act 1958 (Cth) (Act). In a statutory declaration submitted in support of his application, the applicant stated that he and his father are members and supporters of the Bangladesh Nationalist Party (BNP). The applicant also made claims to the following effect: (a) After the Awami League (League) defeated the BNP at the 2008 elections, the applicant's family's business was extorted by the League. (b) In early 2009, around 12 League members came to the business of the applicant's family, threatened the applicant and his father with hockey sticks and demanded money. The applicant's father was given three months within which to pay. Every few weeks thereafter, League members would come to the family business and threaten the family, destroy goods and steal produce. (c) In early 2011, League members returned to the business of the applicant's family and demanded more money. The applicant did not have the money, but out of fear told the League members that he would pay them in a month's time. The applicant went to the police station to complain about the demand, but the police told him to either pay the sum or close his family's business. When League members returned for the money and he did not have it, they beat him with a hockey stick. They set fire to his family's business when he was in hospital. (d) After this, the applicant fled his home village to Dhaka, the capital of Bangladesh. In 2013, League members attended his workplace on several occasions whilst in Dhaka, looking for the applicant. 6 On 19 November 2014, a delegate of the first respondent (Minister) refused to grant the protection visa pursuant to s 65 of the Act. 7 On 17 December 2014, the applicant applied to the second respondent, the Administrative Appeals Tribunal (Tribunal), for review of the delegate's decision. The applicant appeared at the hearing on 11 July 2016 to give evidence and make submissions, with the assistance of a Bengali interpreter. The applicant provided further written submissions following the hearing. On 15 August 2016, the Tribunal dismissed the application and affirmed the delegate's decision not to grant the visa. 8 The Tribunal found that the applicant was not a reliable witness by reason of inconsistencies between his oral evidence before the Tribunal and his written claims and/or the evidence he gave to the delegate (Tribunal reasons at [40]-[54]). The Tribunal made a number of findings that it considered reflected "poorly" on the applicant's credibility (Tribunal reasons at [41]), including that: (a) the applicant had embellished his written claims to be a "member" of the BNP, given that he later told the delegate, and the Tribunal, that he was "just a regular supporter" (at [42]); (b) in respect of the applicant's claim that 12 League members came to his family's business to extort money, the Tribunal found it difficult to accept that the applicant could not more accurately account for the date of this event given the seriousness of the claims, with the applicant stating in his original claim that it occurred in early 2009 but in evidence before the Tribunal stating that it occurred in late 2009 (at [43]); (c) in respect of the applicant's claim concerning the second demand for money in 2011, the Tribunal found that the applicant's evidence to the Tribunal differed significantly from what was stated in his written claims (at [45]); and (d) in respect of the applicant's claims concerning events after he went to Dhaka and League members going to his workplace in Dhaka, again the Tribunal found that the applicant's evidence to the Tribunal differed significantly from what was stated in his written claims and also found that the applicant was changing his evidence in response to the concerns expressed during the hearing (at [46]-[48]). 9 The Tribunal concluded (at [54]): For all these reasons the Tribunal does not accept the applicant's claims of past harm. It does not accept his family business came under threat of extortion from the Awami League after they gained power in 2008; that his store was attacked and damaged in either 2009 or 2011; that extortion demands were made or that any money was paid by the applicant or his family to the Awami League. Nor does the Tribunal accept the applicant was beaten by members of the Awami League and hospitalised; that his business was burnt down; that a failed attempt was made to report the Awami League members to the police; that the applicant fled to Dhaka; that members of the Awami League ever came to his place of work in Dhaka searching for him. 10 Despite rejecting the applicant's specific claims, the Tribunal also considered whether the applicant faced a real chance or risk of suffering serious or significant harm on return to Bangladesh on account of his claimed political affiliation with BNP (at [55]-[65]). The Tribunal concluded that the applicant does not have a high political profile as, on his oral evidence, he is not a member of the BNP, does not participate in political meetings and does not attend processions and protests, or take part in other political activity (at [58]). The Tribunal referred to the latest country information concerning Bangladesh and concluded (at [60]-[63]): The Tribunal accepts the political environment in Bangladesh is volatile and that there are reported incidences of politically motivated arrests, deaths and injuries, including in the applicant's local area, but does not, on the available information, accept the applicant has a profile such that there is a real chance or risk he would suffer serious or significant harm if he returns to Bangladesh for reason of his political opinion. As to whether the applicant will be harmed as a consequence of being a shopkeeper and BNP supporter the Tribunal acknowledges DFAT's advice that there are reports of Awami League members and activists extorting BNP business owners in rural areas, threatening them with violence if they fail to comply with demands for money. The Tribunal does not accept the applicant has suffered such harm in the past and given he has little or no visibility as a BNP supporter the Tribunal considers the chances of him being targeted for serious harm by the Awami League on this basis in future to be remote. Similarly, the Tribunal does not accept there are substantial grounds for believing there is a real risk the applicant will suffer significant harm for this reason. … In view of DFAT's advice and given the above finding about the applicant's political profile, the Tribunal is satisfied the applicant will not face serious or significant harm on return to Bangladesh due to him being a failed asylum seeker. 11 On 13 September 2016, the applicant filed an application for judicial review of the Tribunal's decision in the Federal Circuit Court of Australia pursuant to s 476 of the Act, which grants the Federal Circuit Court the same original jurisdiction in relation to migration decisions as the High Court has under s 75(v) of the Constitution. As such, review by the Federal Circuit Court was confined to assessing jurisdictional error: Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476. The applicant was unrepresented before the Federal Circuit Court and appeared with the assistance of an interpreter. The Federal Circuit Court dismissed the application for review. 12 There were four grounds of review before the Federal Circuit Court. Each ground had lengthy particulars. The draft notice of appeal filed by the application on this application replicated the grounds of review save for some relatively minor changes. The grounds of review before the Federal Circuit Court were stated as follows (errors in original): 1. In making decision, the Tribunal acted without jurisdiction or in excess of jurisdiction when it failed to take into account relevant considerations. Particulars • The applicant never told in the interview he was not an active member of BNP party. He could not provide the membership card because it is not a standard procedure to give away membership cards in Dhaka as there are millions of members of BNP and are more regarded for their active participation in group activities. This can be verified if inquiries are made in the local offices of BNP. • The applicant has requested for documents that will verify his association and membership with BNP, as it is not a standard procedure or never often asked for so will take some time but the applicant will surely will arrange before the hearing. • The tribunal unreasonably raised doubt over the applicant's involvement with the BNP Group as also his relatives and other family members are also dominant and active leader. The Department and the Tribunal misunderstood or misconstrued the facts. Migration advisor for the Applicant in his submission very clearly clarified the applicant's involvement with the group as a member, Applicant's activities and role in the Party. Also applicant's brother was an active and long-time member of the BNP Party. • Applicant claims that the ruling party Awami League is a Violent- Criminal and corrupt Groups in Bangladesh which are active. As the applicant stated earlier that Applicant's shop was attacked with several other shops and demolished as well. • And the for the safety of his and his family's life from this Awami league Group of Criminals The applicant together with his brother had to flee. When it became more worst, the applicant decided to leave Bangladesh. • The applicant argues that the Department and the Tribunal asked many irrelevant questions to test the credibility of his evidence. • The Department and the Tribunal found inconsistency because the questions were asked in such a manner for which the applicant was not prepared. He was nervous, stressed and confused at the time of making Statutory Declaration and also at the time of interview with the Department and Lawyers who helped him to prepare the application. • The Tribunal raised the question about telling some things now, and raised the question why he did not mention earlier in the Original Application. The applicant did not remember each and every detail as it happened few years back and was in a very severely stressed out mental state. • The Department has accepted that he was very confused. He was himself not understanding what answer he is giving for which questions. The Department told the applicant first understand the question then give answer. The applicant was totally nervous. • The applicant believes he was denied procedural fairness when the hearing was conducted not freely and fairly. 2. The tribunal made a jurisdictional error when it made decision in which the finding of reasons is confused. The Tribunal did not apply Real Risk Chance Test used in the Refugee Convention under Australian law. Particulars • The applicant claims that the Tribunal and the Department formed the opinion based on the limited information about the possible harm to the applicant. The Tribunal ignored all other independent information about all other the shop attacks together with the applicants on the Applicant's village. The tribunal made unreasonable doubt about applicant's claims and said in reasoning that he was never attacked nor his shop was demolished or if he paid any ransom to Awami league without any substantial evidence provided yet they accept the fact that similar incidents has happened in the local area and the current govt is not helping the oppressed as it is ruled by Awami League. • The applicant confusion about the attack dates has been given more importance rather than the credibility to the fact that the applicant did cited that it did happened in 2011 and in the beginning he was not asked much details so he did not elaborated about his dad selling the land and also borrowing the remaining amount for the extortion money. • The Department and the Tribunal made opinion with the closed mind. The applicant claims that he left Bangladesh because of continuous attacks and torture by the members of the Awami Group. He had no protection from the local authorities because his attempts to get help from the local police failed because as Awami league is ruling as Government since 2009. And they are corrupt and exercise wrong use of powers in all authorities in Bangladesh. They have not given an election which was supposed to be in 2013 and since then everyone is scared of their group members and supporters. This information was never checked by the tribunal even as the tribunal has accepted that the political situation in Bangladesh is unrest for a long period of time. • The tribunal did not account any evidence of real chance of risk despite the facts his father had to sell the land and he had to flee in Dhaka. It is unfair and that the tribunal is suggesting that he could have escaped in any other area which is common for other people involved in similar situation. The tribunal is saying that it is possible and giving possible solutions rather than addressing the fact that it is a life threating matter and decisions are taken impulsively in a delicate state of mind. Also Dhaka is the capital city and the mostly populated state of Bangladesh so what are the chances that the applicant will be safe in other local if he can be easily traced in Dhaka. • The tribunal came to conclusion that it is easier to secure a job because the applicant stated he found the job in a week which is simply illogical. The applicant was not asked how he found the job which actually is through his father's connections with the manger there who given his life threatening situation offered to help the family. Also the Youth unemployment rate in Dhaka as per the World Bank and International Labour Organisation was 10.13% given the stats carried out in 2013.Thus the tribunal findings and resources are wrong and questionable. 3. The Tribunal made a jurisdictional error when it did not consider his claims under the Complementary Protection Clauses. Particulars • The applicant claims he would satisfy the criterion for protection under the Complementary protection arrangements as there are substantial grounds to believe there is a real risk that would suffer significant harm on return to Bangladesh. The applicant claims that the Tribunal blindly follow the decision of the Delegate. • The Tribunal did not consider that how the applicant came to Australia by Boat taking high risk of life. The tribunal ignored intentionally the relevant consideration related with complementary protection set out in s.36(2)(a). He is subjected to a significant harm as severe as being attacked and killed by Awami league members. • The Tribunal ignored real test of persecution and made decision with closed mind. 4. Jurisdictional error has been made. The tribunal doubts the applicant's claim without substantive evidence and reach mistaken conclusion. Particulars • The Tribunal failed to put to the applicant for comment the independent country information on which it relied in making its decision. • The Tribunal erred by making findings without supporting evidence and findings which were illogical and inconsistent. • The Tribunal failed to consider that if the applicant is deported from Australia he will be at risk of suffering persecution within the meaning of the 1951 Convention relating to the status of Refugees. 13 The primary judge considered each of the above grounds, including each particular, in considerable detail, ultimately concluding that none of the grounds were made out (at [98]). It is unnecessary to reproduce the reasons of the primary judge at length. It is sufficient to note that the primary judge reached the following principal conclusions: (a) First, there was no jurisdictional error associated with the Tribunal's findings that the applicant was not a reliable witness and rejecting the applicant's primary claims (PJ at [23], [29]-[34]). The determinative issue in the Tribunal's decision was the applicant's credibility (at [55]). (b) Second, the applicant's complaint that the Tribunal could make inquiries "in the local offices [in Bangladesh] of the BNP" about the applicant's membership status and support activities misconceived the role of the Tribunal (at [25]). (c) Third, the applicant's proposal to obtain further documents, presumably to put before the Federal Circuit Court, misconceived the role of the Federal Circuit Court on judicial review (at [27]). (d) Fourth, the Tribunal expressly accepted that the Tribunal hearing process could be stressful for applicants and omissions and inconsistencies in the evidence could naturally arise in the recounting of claims due to the passage of time (at [40]). The applicant's contentions concerning his physical and mental state, particularly as it related to the Tribunal, was not made out on the evidence, and did not demonstrate any failure on the part of the Tribunal to afford the applicant a real and meaningful opportunity to participate in the Tribunal hearing or any breach of s 425 of the Act (at [42]). (e) Fifth, there was no basis for any finding that the reasoning and findings in the Tribunal's reasons were confused (at [51]), or that the Tribunal failed to consider relevant material (at [58]), or that the Tribunal had a "closed mind" (at [60], [64]) or that the Tribunal "blindly followed" the delegate's decision (at [75]), or that the reasons of the Tribunal were illogical (at [67]), or that the Tribunal failed to consider the applicant's claims under the complementary protection criteria (at [71]). (f) Sixth, there was no error arising from a failure by the Tribunal to put country information concerning Bangladesh to the applicant, as this was not required having regard to s 424A(3)(a) of the Act (at [89]). 14 The applicant did not file written submissions on this application for an extension of time. At the hearing, the principal submission advanced by the applicant was that the Tribunal was wrong not to accept his claims. 15 The Minister submitted that the reasons of the primary judge comprehensively addressed the grounds of review and there is no apparent error in the reasons. 16 In circumstances where the applicant is not legally represented, I have read the reasons of the Tribunal and the primary judge carefully. I cannot find any error in the primary judge's conclusions. I consider that the applicant's proposed grounds of appeal have no prospect of success. 17 Accordingly, I have determined that the application for an extension of time to file an appeal should be refused with costs. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice O'Bryan.