AAO15 v Minister for Immigration - [2015] FCCA 2365

FEDERAL CIRCUIT COURT OF AUSTRALIA

AAO15 v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 2365

Catchwords:
MIGRATION – Protection visa – review of decision of Refugee Review Tribunal – whether Tribunal failed to take into account relevant material – whether the Tribunal acted reasonably in not making an inquiry – application dismissed.

Legislation:

Constitution (Cth), s.75(v)

Migration Act 1958 (Cth), ss.474, 476

Minister for Immigration & Citizenship v SZIAI (2009) 259 ALR 429
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

Applicant:

AAO15

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 438 of 2015

Judgment of:

Judge Smith

Hearing date:

6 August 2015

Date of Last Submission:

6 August 2015

Delivered at:

Sydney

Delivered on:

6 August 2015

REPRESENTATION

The Applicant appeared in person

Solicitor for the Respondents:

Ms S. Lloyd, Minter Ellison

ORDERS

The application be dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $6,000.
The name of the second respondent be amended to Administrative Appeals Tribunal.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 438 of 2015

AAO15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Ex Tempore & Revised)

Background

The applicant comes from Bangladesh, where he says his father was a freedom fighter and fought in the liberation war in 1971. After the liberation of Bangladesh from Pakistan, his father became involved in politics and, in particular, in the Bangladesh Nationalist Party (“BNP”). As a result of his father’s involvement, the applicant said that he became involved in politics and as a student was involved in the student wing of the BNP. He claimed that he was involved in a number of elections working for the BNP and ultimately became an executive member of one branch of that party.
As a result of this work, however, the applicant said that he became a target of the opposition party, the Awami League, which is the other major party in Bangladesh. At one point when there was a caretaker government in 2007, he was arrested by the military and tortured by them. Later, after the elections in December 2008, his house was ransacked and looted. Subsequently, a number of false cases were lodged against the applicant, and the police raided both of his houses in his village as well as in the capital, Dhaka.
The applicant arrived in Australia on a visitor visa and roughly three weeks later applied for a protection visa on the basis that he feared that he would be persecuted in Bangladesh for reasons of his political opinion. In support of his claims, he sent to the Department a letter on the letterhead of the Bangladesh Parliament, addressed “To whom it may concern” purporting to have been written and signed by a member of parliament. It referred, amongst other things, to a number of false cases that had been filed against the applicant and that there would be danger to his life if he were to return to Bangladesh.
On 1 August 2013, a delegate of the Minister made a decision to refuse to grant the applicant a protection visa. The applicant applied to the Tribunal for review of that decision. He was invited to a hearing to give evidence before the Tribunal and eventually appeared before it on 15 January 2015. The previous date had been adjourned by the Tribunal, taking into account the need for the applicant to undertake dialysis treatment. No complaint is made about the conduct of the hearing by the Tribunal. At the hearing, the applicant gave to the Tribunal a number of documents relating to the cases brought against him. It appears that the charges related to some attempted form of bombing or creating threats. The Tribunal gave its decision on 30 January 2015 and affirmed the decision of the delegate.

Jurisdiction

Before considering the reasons for the Tribunal’s decision and the grounds raised by the applicant in this Court, it is necessary to say something briefly about the jurisdiction of this Court. It was the Tribunal’s role under the Migration Act 1958 to review the decision of the delegate. That meant, in effect, that it had to make the decision on the material before it as to whether or not the applicant satisfied the criteria for the grant of the visa. This required the Tribunal to have regard to the material before it and to make findings of fact based on that material. Once it had made those findings of fact, it was then to apply the law to those facts.
The role of this Court is different. Its power under s.476 of the Migration Act 1958 is the same as that of the High Court under s.75(v) of the Constitution. That means that orders affecting the Tribunal may only be exercised in circumstances where there is a jurisdictional error affecting the decision of the Tribunal. That is particularly so since any decision that is not affected by jurisdictional error is a privative clause and, by virtue of s.474 of the Act, is final and conclusive (see Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476).
A jurisdictional error is, in effect, one which affects the exercise of the power by the Tribunal. It either means that there is some precondition to the exercise of power that has not been met, such as procedural fairness, or that by asking itself the wrong question, the Tribunal has not, in fact, done what it was supposed to do and so may be said to have constructively failed to exercise its jurisdiction. Making a wrong finding of fact in and of itself does not constitute a jurisdictional error. That is particularly the case where a finding of fact has a rational basis in the evidence.
That being said, I return to the grounds raised by the applicant.

Consideration

In his application for review, the applicant says that the Tribunal failed to consider the relevant facts of his circumstances in reaching its decision and refers to his affidavit. His affidavit relevantly states:
(3)The Refugee Review Tribunal failed to consider my overall credibility at the time of assessment of my protection visa application.
(4)That I fear for my life if I am returned to Bangladesh due to my past political involvement.
(5)That I became an executive member of [omitted] District Committee of the BNP.
(6)That my house was ransacked and looted as a result of my BNP affiliation.
(7)I continue to fear that I will be persecuted or even killed on my return to Bangladesh.
While it may be that a failure by the Tribunal to consider material evidence or a relevant claim might constitute jurisdictional error, that is not the same as saying that the failure by the Tribunal to accept a claim is jurisdictional error. In my view, the way in which the applicant has used the word “consider” in his application suggests that he complains only that the Tribunal did not accept his claims. As such, nothing in his application on its face gives rise to jurisdictional error.
At the hearing today, the applicant, who has appeared unrepresented, made three complaints: first, that he submitted documents but the Tribunal did not believe them, secondly that he is sick and he cannot go back to Bangladesh, and thirdly, that the documents had telephone numbers on them and the Tribunal could have checked whether they were genuine or fraudulent documents. Before dealing with each of those complaints, I will briefly outline the reasons given by the Tribunal for its decision.
The Tribunal gave a lengthy and very detailed statement of reasons. Having set out all of the evidence before it and summarised at length the independent sources of information about the country circumstances in Bangladesh, the Tribunal set out an analysis and assessment of all of that evidence. It first dealt with the court documents that were handed by the applicant to it at the hearing. It gave no weight to those documents because they were issued on a date after the court appearance which they purported to require the applicant to attend. The documents required the applicant to attend a hearing on 10 October 2012 but were dated 6 April 2013. On its face, that information gave a rational basis for the Tribunal to give no weight to the documents.
The second issue for the Tribunal was that, although the applicant had claimed to be a supporter of the BNP, he was in his evidence unable to articulate the manifesto, principles, policies and platforms of the party in various campaigns except in most simple terms. He was unaware of how many parliamentary elections had taken place.
For that reason, the Tribunal found that the applicant was not a BNP activist, supporter, or member, and had no profile with the party. Given that, and the lack of corroborating evidence of the incidents relied upon by the applicant, the Tribunal did not accept that he had faced any serious harm as a result of his BNP affiliation.
The Tribunal then turned to the outstanding charges against the applicant and found it implausible that any charges had been made against him because he had a, at best, low political profile. Further, it found in light of the fraudulent information relating to the availability of fraudulent documentation in Bangladesh that it gave the evidence relating to the charges no weight. That evidence, as submitted by the Minister, included not only the court documents but the letter from the Member of Parliament.
I note in passing that, at the hearing, the Tribunal raised the issue of the documents with the applicant, and specifically put to him for comment the information about the availability and prevalence of fraudulent documents from Bangladesh.
The Tribunal also noted that the applicant had delayed somewhat in making an application for a protection visa after arriving in Australia, as well as the fact that he exited Bangladesh on a genuine passport and faced no difficulty in doing so. For all of those reasons, the Tribunal found that there was no real chance that the applicant would face persecution in Bangladesh for a Convention reason, or that there was a real risk that he would suffer significant harm in Bangladesh. The Tribunal then concluded that the applicant did not satisfy the criteria for the grant of the visa.
The first argument raised at the hearing by the applicant concerned the rejection by the Tribunal of the documents relied upon by him. As I have noted, there were two bases upon which the Tribunal gave no weight to those documents. In respect of the court documents, on their face they had inconsistent dates. In respect of both sets of documents there was information from independent sources as to the prevalence of fraudulent documents from Bangladesh. I consider that those are both rational bases for the application of no weight to those documents, and it was open therefore for the Tribunal to give no weight to them.
The second ground or argument raised today relies upon the applicant's sickness. I accept that the applicant has renal issues which have required him to undergo dialysis treatment. This may or may not cause the applicant some difficulty if he were to return to Bangladesh. I am simply unaware of whether that is the case or not. In any event, more importantly, the applicant's illness is not something that relates to the Tribunal’s decision. As I have noted, the Tribunal took into account his illness and the necessary treatment in organising a hearing, and ensured through discussions with the applicant's treating specialist that the hearing could take place without any risk to the applicant.
The third matter raised by the applicant was that the Tribunal could have checked whether the documents relied upon were fraudulent documents. He referred to a document with a telephone number on it. I take that to be a reference to the document from the Member of Parliament. The difficulty with that proposition is that it is difficult to understand what utility a phone call by the Tribunal to that number could have served. It is unlikely that the person who answered the telephone call, who had prepared a fraudulent document, would be prepared to say one way or the other whether what he had said or she had said was false.
There is no general duty upon the Tribunal to inquire, although there is a power in the Tribunal to make such inquiries. The question really is whether the Tribunal acted reasonably in not making the inquiry. One reason, which is sufficient in this circumstance, is that there was no obvious inquiry that would be of any utility (see Minister for Immigration & Citizenship v SZIAI (2009) 259 ALR 429). However, other circumstances might arise that might make it unreasonable for the Tribunal not to inquire. It might be, for example, that the applicant had made a request for the Tribunal to do so, or had some information from the author of the document which suggested that the author was available.
In those circumstances, it might have been incumbent upon the Tribunal to at least consider the exercise of its power. What I am saying in this respect ought not to be misunderstood to be any general rule, but simply to say that in each case all of the facts and circumstances before the Tribunal must be considered.
In this case, I do not think that there are any such further circumstances. On the material, it appears that the applicant produced a document purporting to be from somebody who the applicant had told the delegate was in prison. He also produced other documents which, on their face, were at least questionable. It had information before it from respectable sources that fraudulent documents in Bangladesh were prevalent. In all of those circumstances, I do not think that it was unreasonable for the Tribunal not to have made any inquiry of the purported author of the letter. For that reason, there was no jurisdictional error in respect of it.

Conclusion

The applicant has not made out any jurisdictional error in the Tribunal’s decision and, as I have explained above, that means that this decision is a privative clause decision and that it is final and conclusive. As a consequence, this application must be dismissed.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Smith

Associate:

Date: 31 August 2015