ACA15 v Minister for Immigration

[2015] FCCA 2727

FEDERAL CIRCUIT COURT OF AUSTRALIA

ACA15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2727

Catchwords:
MIGRATION – Protection visa application – review of decision of Refugee Review Tribunal – whether the Tribunal failed to consider all of the applicant’s claims – whether the Tribunal understood the difference between serious harm and significant harm – whether the Tribunal was biased – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2), 91R

Minister for Immigration & Multicultural Affairs v Jia Le Geng (2001) 205 CLR 507
Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982

Applicant: ACA15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 501 of 2015

Judgment of: Judge Smith

Hearing date: 27 August 2015

Date of Last Submission: 27 August 2015

Delivered at: Sydney

Delivered on: 27 August 2015

REPRESENTATION

The Applicant appeared in person

Solicitor for the Respondents: Mr L. Dennis, Sparke Helmore

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $5,800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 501 of 2015

ACA15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Ex Tempore & Revised)

Background

1. The applicant came from Bangladesh to Australia in 2012.  He says that he fears to return to Bangladesh essentially because he will be persecuted there for reason of his support of the Bangladesh National Party, the BNP. He made a protection visa application on that basis in December 2012. When a delegate of the Minister decided to refuse to grant him a visa, he applied to the Refugee Review Tribunal for a review of that decision. On 9 February 2015, the Tribunal affirmed the decision of the delegate. And the applicant now applies to this Court for judicial view of the Tribunal’s decision. 

2. The power of this Court is limited and is quite different to that of the Tribunal. Whereas the Tribunal had to decide whether or not the applicant, on the material before it, was a refugee, or whether he satisfied other criteria for the grant of a protection visa, the Court does not do that. It does not make findings of fact about what the applicant claims he fears in Bangladesh. 

3. The Court is limited to determining whether the Tribunal’s decision is affected by a serious legal error. Such an error can include a procedural error such as a denial of procedural fairness or, in this particular statutory context, a breach of the provisions of div.4 of pt.7 of the Migration Act 1958 (Cth). With those limitations on the Court’s power in mind, it is necessary to return briefly to the applicant’s claims and then to consider the Tribunal’s reasons for its decision.

4. When the applicant first arrived in Australia, he engaged in an interview in which he described in very broad outline that he had been supporting the BNP opposition party and threatened with death because of that support. In support of this protection visa application, the applicant made a statutory declaration which contained more detail of his claims.

   …

   [7]In our village the BNP had a branch. I was involved in this Branch, whenever there were elections I used to support and help the BNP candidate in our area.

   [8]If any person had any problem in our village we will tell the BNP and ask for the BNP’s assistance.

   [9]The majority in our village supported the Awami League. The Member of Parliament for our area is from the Awami League.

   [10]The Awami League members were putting pressure to people in our village to join them. They used to tell us that if we did not vote for the Awami League they will harm our families. We could not complain to anybody about this because the Awami League in the majority in our area. The Police will not act on complaints against the Awami League because the Awami League is in power in Bangladesh.

   [11]In our village the supporters of the Awami League were very angry with my brothers and me because we supported the BNP. They started to make threats telling us to stop supporting the BNP. After the Awami League came into power the Awami League members became more aggressive in our village. They came to our house several times and they told us to leave the village or we will be beaten.

   [12]Some members of the Awami League threatened to take out land if we continued to support the BNP.

   [13] At the end of 2008 I was kidnapped by some members of the Awanmi (sic) League. They took me to a forest. I was held for two hours. I was tortured during this time. They put a gun to my head and told me to stop supporting the BNP and that I had to support the Awami League. I told them that I will start supporting the Awami League because I thought they were going to kill me.

   [14]After this incident happened I left my village and lived in Dhaka. I lived in Dhaka with some of my cousins. I also sometimes stayed in my brother’s house in Chittagong and my maternal uncle’s house in Bhanga. I stopped my involvement in the BNP. I did not tell people of the problems I had in my village or that I supported the BNP because I was fearful that if people from the Awami League in the areas where I was staying found out that I had problems with the Awami League in my village they will start targeting me.

   [15]My brothers also moved from our village to avoid being harmed by the Awami League members.

   [16]In November 2011 members of the Awami League came to my mother’s house in our village. They started asking my mother about me and where I lived. My mother told she did not know where I was. After my mother told me this I decided to leave Bangladesh. I do not know why they were asking for me, but I was fearful that they will start looking for me.

   [17]I left Bangladesh in November 2011 and went to Malaysia.

   [18] I Malaysia I was living unlawfully. Some people took advantage of me because I was unlawful. They would demand money and threatened to tell authorities if I did not pay the money they demanded. Sometimes I will not be paid my wages or be paid less money but I could not complain. The Police also used to detain illegal people and asked us for bribes to be released or not to be detained.

   [19]When I was in Malaysia my mother told me that ine of my brothers was killed by members of the Awami League. I decided to leave Malaysia and travel to Australia. I was fearful that in Malaysia I might be detained and returned to Bangladesh. After my brother was killed I decided to travel to Australia to seek protection.

   ...

5. The delegate interviewed the applicant on 23 August 2013 and made a decision to refuse the visa on 27 August 2013. Essentially, the delegate did not believe the applicant’s claims. The applicant applied to the Tribunal for review of that decision with the assistance of a migration agent.

Tribunal’s decision

1. The applicant and his agent took part in a hearing by telephone before the Tribunal on 11 November 2014. During the hearing, the Tribunal raised with the applicant a number of matters about which it was concerned with his credibility. It allowed the applicant further time to put in written submissions in respect of those matters. 

2. The applicant’s lawyers sent the Tribunal a letter dated 26 November 2014 addressing the issues that had been raised at the hearing. The Tribunal gave its decision on 9 February 2015 affirming the decision of the delegate. Critically, the Tribunal found that the applicant’s evidence was not truthful and it rejected all of his claims, finding that the applicant therefore did not satisfy the criteria for the grant of a protection visa. 

3. It gave seven reasons for its finding of credit. Briefly, those are as follows:

   i)The Tribunal found that the evidence given by the applicant at the Tribunal hearing in respect of when he left his village was different to that given in his statutory declaration in support of the protection visa.

   ii)the evidence given by the applicant during the hearing concerning his kidnap and release was different to that given in his statutory declaration.

   iii)the Tribunal found that although he stated that he had been kidnapped once, the decision record of the delegate noted that he had told the delegate that he had been kidnapped once, escaped and then had been retaken by members of the Awami League.

   iv)the record of the applicant’s entry interview contained no mention of him being kidnapped at all.

   v)the Tribunal considered that the applicant’s delay in leaving Bangladesh was inconsistent with his claims.

   vi)the Tribunal noted that the applicant’s oral evidence concerning the reason for which he left Malaysia was different from that in his statutory declaration.

   vii)the applicant’s evidence concerning the fact that his younger brother was missing while the applicant was in Malaysia was different in his statutory declaration.

4. On the basis of the Tribunal’s credit findings, the Tribunal found that the applicant had not undertaken any activities in support of the BNP and did not accept that he was or is a supporter of that party. Further, it found that the applicant had not been kidnapped and that he had not left his village in fear of harm resulting from his involvement in the BNP. 

5. It did not accept that his brothers had left the village to avoid being harmed, that his brother was killed by members of the Awami League and that supporters of the Awami League had visited the applicant’s mother looking for the applicant and had recently injured his mother. It did not accept that the applicant was of any adverse interest to the Awami League or its supporters, or indeed anyone in Bangladesh. It found there was no real chance that the applicant would be subject to serious harm on return to Bangladesh.  For those reasons, it concluded that the applicant did not satisfy the criterion in sub-s.36(2)(a) of the Act.

6. For similar reasons, the Tribunal found that it was not satisfied that there were substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Bangladesh, there is a real risk he would suffer significant harm.  For that reason, the Tribunal was not satisfied that the applicant met the criterion in sub-s.36(2)(aa) of the Act.

Consideration

1. The grounds upon which the applicant relies appear both in the application filed by him in March of this year and in a written outline of submissions dated 3 September 2015. I will deal with those documents in turn. It is difficult to understand precisely what is alleged in these documents, and they have every appearance of being drafted by somebody with some knowledge of the law, but who paid insufficient attention to the restrictions on the jurisdiction of this Court.

2. With those thoughts in mind, doing the best to understand the grounds as they are written, I will deal with them as follows.

Grounds raised in application

1. The first ground in the application appears to be that the Tribunal did not consider the claim made by the applicant that the authorities do not protect BNP supporters in Bangladesh. The difficulty with that ground is that the Tribunal did consider the underlying factual bases for the applicant's claims, but rejected them. In particular, it rejected the claim that he had anything to do with the BNP. That rejection logically meant that the Tribunal did not have to go on to consider whether the applicant faced harm as a supporter of the BNP. For that reason, the ground is rejected.

2. The second ground is that the Tribunal failed to identify the difference between serious harm and significant harm. This is a reference to the difference between the criteria contained in sub-s.36(2)(a), which refers by means of s.91R to serious harm, and sub-s.36(2), which refers to significant harm. The Tribunal set out a correct understanding of those two concepts in [41] and [47] of its statement of reasons. However, even if it were to have erred in that respect, it would not have made any difference because the Tribunal, as I have said, rejected all of the factual bases for the applicant's claim. For both of those reasons, the second ground is rejected.

3. The third ground is that the Tribunal failed to assess the severity of persecution. For the reasons that I have explained in respect of the first and second grounds, the severity of persecution claimed to be faced by the applicant was dealt with by the Tribunal’s findings of fact, and it was not obliged to undertake any qualitative assessment of what harm the applicant claimed he might face. 

4. The fourth ground is that the Tribunal asked several irrelevant questions. This ground appears to be aimed at the fact that the applicant was not a cardholding member of the BNP. He says in his application that to become a party member or active leader of a party is not a criterion to become a victim of persecution. This picks up a submission made by the applicant's lawyers in their letter dated 26 November 2014. The Tribunal referred to that submission at [22] of its reasons, and agreed with the submission that not being a member of a political party is not evidence that a person is not passionate about that party. In any event, the Tribunal went on to find that, for other reasons, the applicant was not a member or indeed a supporter of the BNP. For that reason, the complaint in this ground is not well-founded. 

5. The fifth ground is that the Tribunal failed to consider whether the applicant was a member of a particular social group, namely, a member of the BNP. As I have explained, the Tribunal rejected the applicant's claim to be a member of the BNP.  There was no factual basis in the material before the Tribunal upon which it was required to consider membership of a particular social group. The applicant then makes certain claims about the Tribunal’s dealing with sub-s.36(2)(aa) of the Act. However, those complaints are not well-formulated and do not appear to raise any real legal error. For example, the applicant states that the Tribunal ignored the relevant consideration related to the complementary protection set out in sub-s.36(2)(aa). I do not understand what that means. If it means that the Tribunal did not consider the criterion in sub-s.36(2)(aa), then it must fail because the Tribunal did so, in clear terms, at [30] to [33] of its reasons.

6. The balance of the application concerns questions of fact, such as the applicant's claimed fear of harm upon return to Bangladesh, and do not raise legal questions.

Grounds raised in submissions

1. Turning to the outline of submissions, the first point is similar to the last point in the application. That is, that the Tribunal failed to take into account relevant considerations of alternative criteria of complementary protection provisions. Again, I do not understand what that means, but it is clear that the Tribunal dealt with the alternative criteria for the grant of a protection visa found in sub-s 36(2)(aa). 

2. The next point made by the applicant in his written submissions concerns the Tribunal’s findings of credit. In particular, it focuses on the fourth reason given by the Tribunal in connection with its credibility findings. That is, the difference between what the applicant said at his entry interview and what he later claimed in respect of his protection visa application. The short point made by the applicant is that he was denied natural justice because the Tribunal did not take into account the circumstances during his arrival by boat, and the mental condition that developed when forced to live in the detention centre.  He also says that this amounted to unreasonableness. 

3. There are a number of points to be made in this connection. The first is that the applicant did not raise this issue with the Tribunal. Basically, the evidence before me is that, when the matter was raised by the Tribunal, the applicant said that the issue – namely, that of being kidnapped – may have slipped his mind in the rush. That is different than what the applicant now puts. There is no legal error. Indeed, there is no criticism that could be made of the Tribunal for failing to deal with what the applicant now says. 

4. The point is that, although one might readily accept that conditions in detention are different to those that pertain at a Tribunal hearing, there is no evidence to support the conclusion that they are sufficiently different to undermine the reliability of anything said or recorded at an interview in detention. Certainly, there is no evidence that those circumstances were sufficiently different that the Tribunal ought to have been on notice of such difference, to the extent that it had to take it into account.  For those reasons, I reject the claim that there was any denial of procedural fairness, or that it was unreasonable for the Tribunal not to take into account those matters. 

5. The next matter raised by the applicant is the question of bias. This appears to have a number of particulars. The first is that the Tribunal made its opinion with a closed mind. The second is that the Tribunal disregarded all of the applicant’s evidence, and made its decision on conflicting country information collected by the Department of Foreign Affairs. Thirdly, the applicant claims that the information collected by the delegate was biased and not impartial. 

6. This appears to be an allegation of actual bias.  When somebody is described as actually biased, they must be so committed to a conclusion already formed as to be incapable of alteration, or being persuaded differently, whatever evidence or other argument may be presented: Minister for Immigration & Multicultural Affairs v Jia Le Geng (2001) 205 CLR 507. An allegation of bias, however, is a serious one and must be clearly proven. The only evidence that appears to be relied upon by the applicant is contained in the court book and, in particular, in the statement of reasons made by the Tribunal. There is nothing that I can see in the statement of reasons that supports any of the applicant’s claims in respect of bias.

7. Contrary to the applicant’s assertion, the Tribunal’s decision turned essentially on an analysis of the applicant’s own evidence. It gave well-reasoned bases for each of its findings.  In particular, its credit findings were logically based upon significant differences between the applicant’s oral evidence and his written evidence. The differences in versions of evidence does supply a rational basis for disbelief of an applicant’s claims.  Further, the Tribunal showed that it was willing to accept the applicant’s arguments by its reference at [22] to the applicant’s written submissions. For those reasons, I find that there was no actual bias established.

8. By the same token, I cannot see any evidence that might suggest to a fair-minded informed person such that he or she might reasonably apprehend that the decision-maker might not have brought an impartial mind to bear on the decision: see Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982. The ground of bias is rejected.

9. The applicant’s submissions then set out a number of factual claims, which, for reasons that I have already given, do not amount to legal error. The applicant then asserts that the Tribunal found that the documents provided by the applicant from Bangladesh were fabricated.  However, the Tribunal made no such finding and indeed, the applicant had not submitted any documents to the Tribunal which could be the subject of that finding. The ground appears to have been developed in respect of somebody else’s case.

10. The applicant then repeats a number of the grounds that I have dealt with arising from the application and I need not rehearse my reasons in respect of those.

Conclusion

1. For those reasons, I find that the Tribunal’s decision was not affected by jurisdictional error and the application must be dismissed.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Smith

Associate: 

Date:  12 October 2015