ABJ19 as Representative of ABI19 v Minister for Home Affairs
[2019] FCCA 2137
•5 August 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ABJ19 AS REPRESENTATIVE OF ABI19 v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 2137 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – application for a Protection (subclass 866) visa – whether the Tribunal considered all of the evidence and took into account relevant considerations – whether the Tribunal complied with the requirements of ss 424A and 424AA of the Migration Act 1958 (Cth) – no jurisdictional error made out – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.4AAA, 5H, 5J, 36, 91R, 424A, 424AA, 476 |
| Cases cited: CJU17 v Minister for Immigration and Border Protection [2019] FCA 875 NBKS v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 174 SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71 |
| Applicant: | ABJ19 AS REPRESENTATIVE OF ABI19 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 22 of 2019 |
| Judgment of: | Judge Street |
| Hearing date: | 5 August 2019 |
| Date of Last Submission: | 5 August 2019 |
| Delivered at: | Sydney |
| Delivered on: | 5 August 2019 |
REPRESENTATION
The Applicant appeared in person.
| Solicitors for the Respondents: | Ms K Morris Clayton Utz |
ORDERS
The application is dismissed.
The litigation guardian ABJ19 pay the first respondent’s costs fixed in the amount of $7,467.00.
DATE OF ORDER: 5 August 2019
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 22 of 2019
| ABJ19 AS REPRESENTATIVE OF ABI19 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 12 December 2018 affirming the decision of a delegate not to grant the child applicant a Protection (subclass 866) visa.
The father of the child applicant was appointed as the child applicant’s litigation guardian by orders made by a Registrar of the Court on 4 February 2019.
On 8 January 2019, these proceedings were commenced on behalf of the child applicant. The matter was fixed for a final hearing today as a result of the Registrar’s orders made on 4 February 2019. The child applicant was given an opportunity, through her litigation guardian, to put on an amended application, affidavit, evidence and submissions. An outline of submissions dated 20 June 2019 was filed on behalf of the child applicant.
The child applicant was born in 2015. The child applicant was found to be a citizen of Bangladesh and her claims were assessed against that country. The claims for protection made on behalf of the child applicant may be summarised as follows.
First, the claim is made that the litigation guardian is a member and supporter of the Bangladesh National Party (“BNP”) and, due to his political opinion, activities and profile as a political activist, the child applicant will be targeted by his political opponents for revenge. Secondly, the claim is made that, as the litigation guardian has been in Australia for a long time, the child applicant’s family will be perceived as wealthy and criminal gangs will abduct her to extort money from her father. Thirdly, the claim is made that the child applicant may be abducted, tortured or subject to death or serious harm if returned to Bangladesh. Fourthly, the claim is made that the police cannot provide appropriate help to the child applicant as they are under the influence of the Awami League.
On 8 February 2010, the litigation guardian and the child applicant’s mother and older brother arrived in Australia as the holders of Visitor (subclass 676) visas which were valid until 8 March 2010. On 1 March 2010, they lodged an application for Protection visas (“the first application”). On 25 October 2010, the first application was refused by the Department. On 18 February 2011, the Refugee Review Tribunal affirmed that decision by the Department. Those persons unsuccessfully sought judicial review of that decision by the Department in the Federal Magistrates Court, the Federal Court of Australia and the High Court of Australia.
The same persons, being the litigation guardian and the child applicant’s mother and older brother, subsequently lodged a second application for Protection visas on the grounds of SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71 (“the second application”). On 15 December 2014, the second application was refused by the Department. On 3 July 2016, a differently constituted Tribunal affirmed that decision by the Department. Those persons sought judicial review in the Federal Circuit Court of Australia. On 23 October 2018, the Federal Circuit Court of Australia dismissed the application. On 7 November 2018, an appeal was lodged in the Federal Court of Australia. That appeal is currently pending.
On 1 October 2015, the child applicant applied to the Department for a Protection (subclass 866) visa. On 22 April 2016, the delegate found that the child applicant failed to meet the criteria for the grant of a Protection (subclass 866) visa. Specifically, the delegate did not accept that the child applicant’s father and litigation guardian was harmed for his support of the BNP previously in Bangladesh. The delegate also did not accept that the litigation guardian held any position in BNP organisations in Australia. The delegate also did not accept that the child applicant’s family would be considered wealthy, or would be identified as such, if they returned to Bangladesh. The delegate also did not accept that the child applicant would be at risk of kidnapping for any reason if returned to Bangladesh.
On 6 May 2016, the child applicant applied to the Tribunal for review of the delegate’s decision. On 15 August 2018, an invitation was sent to the litigation guardian to attend a hearing on 3 October 2018 on behalf of the child applicant to give evidence and present arguments. The litigation guardian appeared on that date to give evidence and present arguments on behalf of the child applicant.
The Tribunal, in its reasons, identified the background to the application for review and the relevant law. The Tribunal also provided an attachment to its reasons setting out the relevant law. The Tribunal summarised the applicant’s claims and referred to the history of the child applicant and her family. The Tribunal referred to the hearing that took place with the litigation guardian.
The Tribunal referred to discussing with the litigation guardian his involvement with the BNP in Bangladesh and Australia, why he left Bangladesh, why he fears returning to Bangladesh and why the child applicant would be at serious risk of harm if she goes to Bangladesh. The Tribunal found that aspects of the litigation guardian’s evidence were vague, evasive, implausible, contradictory and unconvincing. The Tribunal also found that there were many inconsistencies in the litigation guardian’s evidence and that he made new claims during the hearing. The Tribunal found that the litigation guardian was unable to provide a consistent and coherent account of events.
The Tribunal summarised the issues raised and explored with the litigation guardian in the course of the hearing. The Tribunal found that the evidence given by the litigation guardian in relation to his involvement with the BNP in Bangladesh and the problems he had as a result was not consistent with his previous evidence. The Tribunal also found that the litigation guardian’s evidence was not consistent with the documentary evidence provided to the Department. The Tribunal identified this as raising credibility concerns in respect of the claims made on behalf of the child applicant.
The Tribunal then provided eleven separate reasons in support of those credibility concerns. The Tribunal identified that it had serious doubts about the veracity of the litigation guardian’s evidence and the claims made on behalf of the child applicant in relation to the litigation guardian’s involvement with the BNP in Bangladesh and the consequences of that involvement.
The Tribunal referred to country information. The Tribunal noted that it raised the country information with the litigation guardian in the course of the hearing. An affidavit has been read in respect of an extract from an oral recording of the hearing. The affidavit says that the extract of the oral recording is consistent with the discussion between the Tribunal and the litigation guardian in relation to the country information which the Tribunal referenced in its reasons.
The affidavit records the litigation guardian’s response to the Tribunal in that discussion being that his name and everything that he has been involved in in the past can be found and located because the authorities in Bangladesh can search online and in newspapers, that those details are everywhere and that the litigation guardian is going to be found out easily. The Tribunal noted in its reasons the litigation guardian’s assertion in relation to his involvement in BNP activities, that he stated that his name can be found in newspapers everywhere and that he can be located easily. The Tribunal also referred to the litigation guardian’s claims that Awami League followers in Australia supplied lists of people involved in the BNP to the Bangladeshi government.
The Tribunal referred to having done an internet search of the litigation guardian’s name. The Tribunal noted that its search indicated that there are 625 professionals with the litigation guardian’s exact name on LinkedIn and nine on Facebook, none of whom are him. The Tribunal noted that it was unable to find any reference to the litigation guardian on the internet. The Tribunal found that the litigation guardian has not provided the Department or the Tribunal any evidence to support these claims.
The Tribunal found that the litigation guardian was not a witness of truth. The Tribunal had found that the litigation guardian fabricated his evidence in relation to his involvement with the BNP in Bangladesh and the problems he had as a result and embellished his evidence in relation to the extent of his involvement in BNP Australia for the purposes of obtaining a Protection visa for the child applicant.
The Tribunal did not accept that the litigation guardian was a supporter or member of the BNP in Bangladesh. The Tribunal did not accept the litigation guardian’s evidence in relation to the problems he had in Bangladesh because of his involvement with the BNP. The Tribunal accepted that the litigation guardian had become involved with the BNP in Australia but did not accept that he was the holder of an office in BNP Australia. The Tribunal did not accept that the litigation guardian was a high profile activist for the BNP. The Tribunal accepted that the litigation guardian had attended at least two protests in Australia and anniversary functions at BNP Australia. The Tribunal was not satisfied that this has brought the litigation guardian to the adverse attention of Awami League supporters, members or leaders in Bangladesh or any Bangladeshi authorities.
The Tribunal did not accept that the litigation guardian is referred to in newspapers everywhere and that he can be easily found. The Tribunal accepted that there are numerous other people with the litigation guardian’s name, such as a prominent academic, who are mentioned in newspapers and on the internet.
The Tribunal was not satisfied that the litigation guardian is a genuine BNP supporter, member or activist and, therefore, was not satisfied that he will have any desire to support the BNP or be involved with the BNP on his return to Bangladesh. The Tribunal also did not accept that the mother of the child applicant is a supporter, member or office holder in BNP Australia. The Tribunal was not satisfied that either of the child applicant’s parents is of adverse interest to Awami League supporters, members or leaders in Bangladesh or any Bangladeshi authorities.
The Tribunal did not accept that the child applicant would be unable to get help from the police because the police are under the influence of the Awami League government.
The Tribunal accepted that the litigation guardian may have kidney stones. The Tribunal did not accept that the litigation guardian did not have enough money to pay for his medical treatment in Bangladesh. The Tribunal found that there was no evidence before the Tribunal to support that the litigation guardian will be denied access to medical treatment in Bangladesh for any reason identified in s 5J(1)(a) of the Act.
The Tribunal was not satisfied that the child applicant is at risk of serious harm or significant harm for any of the reasons claimed if she goes to Bangladesh now or in the reasonably foreseeable future. The Tribunal found that there was not a real chance that the child applicant will suffer serious harm for reason of her or the litigation guardian’s actual or imputed political opinion, membership of a particular social group or any other reason set out in s 5J(1)(a) of the Act if she goes to Bangladesh now or in the reasonably foreseeable future.
The Tribunal found that the child applicant does not have well-founded fear of persecution and is not a “refugee” within the definition of s 5H of the Act. The Tribunal found that the child applicant does not satisfy the criteria in s 36(2)(a) of the Act.
The Tribunal turned to the issue of complementary protection. The Tribunal referred to the litigation guardian’s activities in Australia which it disregarded under s 91R(3) of the Act in its assessment of whether the child applicant has a well-founded fear of persecution. The Tribunal was mindful that s 91R(3) of the Act does not apply to conduct in the context of complementary protection. In s 5J(6) of the Act, the effect of the provisions is the same and the Tribunal’s reference to s 91R of the Act was not an error which gives rise to any jurisdictional error by the Tribunal.
The Tribunal referred to having considered the child applicant’s claims individually and cumulatively and was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the child applicant being removed from Australia to Bangladesh, there is a real risk she will suffer significant harm as defined in s 36(2A) of the Act. The Tribunal found that the child applicant does not satisfy the criteria in s 36(2)(aa) of the Act and affirmed the decision under review.
Before the Court
At the commencement of the hearing, the Court explained to the litigation guardian the nature of the hearing and the litigation guardian confirmed that he understood the nature of the hearing as explained to him by the Court.
From the bar table, the litigation guardian referred to his wife, son and the child applicant and their fears of returning to Bangladesh. The litigation guardian referred to the period of time over which they have stayed in Australia and that he believed it would be unsafe for them to return to Bangladesh. The Tribunal has made findings to the contrary. Those findings were open to the Tribunal for the reasons which the Tribunal gave.
The litigation guardian also made reference to his own health and a kidney problem. Those were matters which were referred to and taken into account by the Tribunal in its adverse findings.
The litigation guardian’s submissions from the bar table were, in substance, an invitation to this Court to engage in merits review. This Court does not have power to review the merits. Nothing said by the litigation guardian from the bar table identified any jurisdictional error.
The grounds
The grounds in application are as follows:
The Tribunal failed to comply with s424(A) or s 424 (AA) of the Act in respect of information that it considered would be there reason or part of the reason for affirming the decision under review.
Particulars
A. The Tribunal relied on information in applicant’s father’s visitor visa to raise credibility concerns regarding applicant’s work. The Tribunal asked the applicant’s father whether he provided false or misleading information in relation to his visitor visa. The Tribunal failed to put this information under Section 424 A or 424 (AA) of the Migration Act.
2. The Tribunal took into account information in the 438 Certificate, namely, the Department provided its opinion on the authenticity of the photos. The Tribunal failed to advise the applicant about the existence of Section 438 Certificate and failed to invite the applicant to provide submission on the validity of the Certificate.
3. The Tribunal failed to consider applicant’s mother’s political activities under the Complementary Protection ground which it disregarded under Section 91 (R ) (3) of the Migration for the purpose of Refugee Criterion assessment.
Ground 1
In relation to ground 1, the Court has been provided with a useful summary of the principles which were applied by the learned Middleton J at paragraphs 14 and 15 of CJU17 v Minister for Immigration and Border Protection [2019] FCA 875.
The particulars to ground 1 refer to the litigation guardian’s visitor visa information raising credibility concerns regarding the litigation guardian’s work. It is apparent in the adverse credibility findings made by the Tribunal that the Tribunal took into account information provided by the litigation guardian in the first application. The Tribunal referred to having put that information to the litigation guardian pursuant to s 424AA of the Act. No transcript has been tendered in support of ground 1.
Insofar as the litigation guardian complains of that information and the litigation guardian’s visitor visa being taken into account by the Tribunal, on the face of the Tribunal’s reasons, the Tribunal complied with the requirements of s 424AA of the Act insofar as that was information enlivening the obligation under s 424AA of the Act.
Further, insofar as the information identified is from the litigation guardian’s visitor visa, it is not of a kind which required compliance with s 424A of the Act. That information is not, if it were believed and looked at in isolation and apart from any inconsistencies or comparison to other material, information which would harm the child applicant’s case.
The child applicant’s written submissions expand upon the particulars to ground 1 and complain of a failure to raise the credibility issues with the litigation guardian in accordance with the requirements of s 424A of the Act. It is apparent on the face of the Tribunal’s reasons that the Tribunal, consistent with its obligations, explored with the litigation guardian the issues of concern. There is no issue which has been identified by the child applicant that was not raised with the litigation guardian in the context of the adverse credibility findings. It was not, however, necessary for the Tribunal to put to the litigation guardian its adverse findings in respect of those issues. The Tribunal identified in detail the information and inconsistencies in the eleven dot points referred to above and expanded upon those in its reasons. It is apparent from the Tribunal’s reasons that these were matters raised with the litigation guardian in the course of the hearing.
The child applicant’s submissions refer to the Tribunal having undertaken an internet search in response to evidence that the litigation guardian gave to the Tribunal which the Court has referred to above. The litigation guardian alleged that his name is everywhere and can be found searching online. That is a matter referred to in paragraph 70 of the Tribunal’s reasons. The Tribunal referred to the fact that it was unable to find any reference to the litigation guardian on the internet. The Tribunal then referred to the litigation guardian’s failure to provide to the Department or the Tribunal any evidence to support these claims. That was the applicant’s obligation pursuant to s 4AAA of the Act.
The adverse finding in paragraph 78 of the Tribunal’s reasons is consistent with the Tribunal not accepting that the litigation guardian has established his claim that his name is everywhere. Whilst there is a reference to a prominent academic in newspapers and the internet, the Court does not accept that was a material finding or that the Tribunal relied, in any material way, on the internet search in its adverse finding rejecting the child applicant’s claim.
The Minister submitted that the internet search was not information of a kind enlivening any obligation under s 424A of the Act because it fell within subsections (3)(a) and (b). There is a difficulty with the proposition that it falls within s 424A(3)(a) of the Act in that it was the litigation guardian’s name that was being searched. If it was information falling within s 424A of the Act, the Court does not accept that it is excluded by reason of s 424A(3)(a) of the Act.
In relation to s 424A(3)(b) of the Act, there is also a difficulty with a proposition that the search was information which the litigation guardian gave for the purposes of the application. Rather, the litigation guardian raised an issue asserting that a search would give rise to a certain consequence. The Court does not regard the raising of the issue as one that means, if there had been an obligation enlivened under s 424A of the Act, it could be said to fall within subsection (b). The information was information as to a negative, being the absence of information, and is not of a kind to enliven any obligation under s 424A of the Act. Nor, when looked at through the lens of the principles identified by the learned Middleton J, can it be said to be information when looked at in isolation which would harm the child applicant’s case. The Court does not accept that the search was information of a kind enlivening any obligation under s 424AA of the Act.
The Court does, however, accept that it was the litigation guardian who raised the issue concerning what might be found in an online search. The Court does not accept that the Tribunal engaged in any jurisdictional error by reason of its reference to the search which was expressly raised as an issue by the litigation guardian. The Court accepts the force of the proposition raised by the Minister that the circumstances distinguish the adverse findings in NBKS v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 174 and SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2.
Further, the Court accepts the Minister’s submission that there was a clear and independent basis for the adverse findings in respect of which any possible error in the failure to follow s 424A of the Act, in relation to the internet search, had no possible effect.
The integer in respect of the litigation guardian being able to be found online was part of the broader claim that the litigation guardian was a high profile BNP supporter. The Tribunal provided detailed reasons for its logical and rational findings that the litigation guardian had fabricated his evidence as to his BNP involvement and had embellished his evidence as to his BNP involvement in Australia. Those adverse findings were open to the Tribunal on the evidence before it. Those adverse findings were dispositive of the litigation guardian’s claim and a clear and independent basis for the Tribunal’s adverse findings by reason of which any failure by the Tribunal to comply with s 424A of the Act in respect of the internet search could not possibly have had an effect on the outcome.
The Court accepts, as referred to above, that any such error would not meet the materiality test and that it did not deprive the child applicant of the possibility of a successful outcome. The Court also accepts that the error could not have changed the result of the exercise of the power by the Tribunal and that compliance with s 424A of the Act could not realistically have resulted in a different decision.
It is for these reasons that the Court accepts the Minister’s submission that any non-compliance with ss 424A or 424AA of the Act in this respect does not amount to a jurisdictional error. No jurisdictional error is made out by ground 1.
Ground 2
The applicant’s written submissions did not address ground 2. That is no doubt because of the fact that, as the Minister’s submissions point out, there was no s 438 certificate. In the absence of any s 438 certificate, ground 2 cannot possibly succeed. No jurisdictional error is made out by ground 2.
Ground 3
In relation to ground 3, as the Court has already identified, the Tribunal took into account the requirements of s 5J(6) of the Act and referred to s 91R(3) of the Act in the context of assessing complementary protection. In these circumstances, even if there was an error in excluding the conduct of the litigation guardian in Australia under s 5J(6) of the Act, it did not give rise to any jurisdictional error. That is because the Tribunal took that conduct into account in determining whether the child applicant met the requirements under the complementary protection criteria. In circumstances where the Tribunal found, taking into account that conduct, that the child applicant did not met the complementary protection criteria, the child applicant could not have met the 1951 Refugee Convention criteria and the error is of no materiality.
The Tribunal’s adverse findings were dispositive of the claims advanced on behalf of the child applicant in relation to her mother. On a fair reading, the Tribunal was entitled to take into account, and did take into account, those adverse findings in determining whether the child applicant met the requirements for complementary protection. In the circumstances of the adverse findings concerning the child applicant’s mother, there was no need for the Tribunal to repeat those adverse findings in the context of considering complementary protection.
There is no force in the proposition that the Tribunal failed to have a real and genuine engagement with the child applicant’s claims and submissions. The Tribunal’s reasons reflect an active intellectual process in considering the child applicant’s claims and submissions. For the reasons already given, the erroneous reference to s 91R(3) of the Act and/or the erroneous application of the same does not give rise to any relevant error, see paragraphs 27 to 35 of S14/2002 v Refugee Review Tribunal [2004] FCAFC 171.
The Court also notes in that regard that the Tribunal in its reasons, in determining whether the child applicant met the criteria of complementary protection, expressly referred to having considered all of the child applicant’s claims, individually and cumulatively, and all of the evidence and submissions. No jurisdictional error is made out by ground 3.
As the application fails to identify any jurisdictional error, and no jurisdictional error is made out by reason of the litigation guardian’s written submissions or anything said by the litigation guardian from the bar table, the application is dismissed.
I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Judge Street
Associate:
Date: 20 September 2019
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