ACZ17 v Minister for Immigration
[2018] FCCA 2084
•6 July 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ACZ17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2084 |
| Catchwords: MIGRATION – Protection visa application – review of decision of Administrative Appeals Tribunal – whether the Tribunal erred by failing to take into account relevant considerations – whether the Tribunal acted without jurisdiction – whether the Tribunal erred by failing to assess the applicant’s claims – denial of procedural fairness – whether the Tribunal erred by failing to verify the genuineness of documents – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), s.414, 424A, 425, pt.7 |
| Cases cited: BSO16 v Minister for Immigration & Border Protection [2017] FCA 294 CHW16 v Minister for Immigration & Border Protection [2017] FCA 762 |
| Applicant: | ACZ17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 65 of 2017 |
| Judgment of: | Judge Smith |
| Hearing date: | 9 May 2018 & 6 July 2018 |
| Date of Last Submission: | 6 July 2018 |
| Delivered at: | Sydney |
| Delivered on: | 6 July 2018 |
REPRESENTATION
| The applicant appeared in person. |
| Solicitors for the Respondents: | Mr T Galvin, Minter Ellison |
ORDERS
The application be dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $5,600.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 65 of 2017
| ACZ17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Delivered Extempore and Revised)
This is an application for judicial review of a decision of the Administrative Appeals Tribunal given on 14 December 2016. The Tribunal affirmed the decision of a delegate of the Minister to refuse to grant the applicant a protection visa. The applicant is a citizen of Bangladesh who arrived in Australia on 3 January 2013. He lodged an application for a protection visa on 11 June 2014. The claims he made in support of that application, and later developed through the course of the application and the later review, were summarised accurately at [7] of the Minister’s submissions, which I will adopt for the purpose of this judgment:
7.The applicant claimed to fear harm in Bangladesh on account of his relationship with a girl named Lipa whose family supported the Awami League (AL), his actual or imputed support for the Bangladesh National Party (BNP), his conversion to Christianity, because his details were released in a data breach and because he will be perceived to be wealthy as a returnee from the west. In support of those claims, the applicant recounted the following factual events:
(a)when Lipa’s brother found out about her relationship with the applicant, he beat the applicant and threatened to kill him;
(b)Lipa’s family arranged for her to marry another man but she asked the applicant to elope with her instead;
(c)they were caught by Lipa’s brother, who beat the applicant with a stick and held him captive until after Lipa’s wedding took place;
(d)a week after the wedding, Lipa killed herself;
(e)Lipa’s family blamed the applicant for her death and threatened to kill him, so the applicant fled to Dhaka and later on to Malaysia;
(f)in 2004, one of the applicant’s brothers was killed while in the company of a BNP supporter;
(g)in 2008, the applicant’s other brother was killed in an altercation when Lipa’s family and their associates tried to seize the applicant’s family’s land in order to force them to reveal the applicant’s whereabouts; and
(h)the applicant became interested in Christianity while in detention, was baptised on 3 June 2014, and his parents are very upset about his conversion.
(Emphasis in original)
On 21 April 2015, a delegate of the Minister made the decision to refuse to grant the applicant a protection visa and the applicant then applied to the Tribunal for a review of that decision. The Tribunal conducted a hearing on 18 October 2016 and made its decision on 14 December 2016 to affirm the delegate’s decision. The Tribunal’s reasons for its decision are accurately set out in the respondent’s submissions at [8] to [9] which, once again, I adopt for the purpose of this judgment.
8.The Tribunal rejected the applicant’s claims on the basis of adverse credibility findings. The Tribunal made the following key findings:
(a)it did not accept that the applicant is a BNP supporter or that he ever had any interest or involvement with the BNP because his evidence was vague and limited;
(b)it accepted that one of the applicant’s brothers had been killed in 2004 while in the company of a BNP supporter, but did not accept the applicant would face serious or significant harm for this reason;
(c)it found that the applicant’s claim to have been in a relationship with Lipa was not credible, because his evidence was vague, contradictory, implausible and inconsistent;
(d)because it did not accept the applicant had a relationship with Lipa, the Tribunal also did not accept that the applicant’s other brother was killed in a conflict with Lipa’s family, that Lipa’s family had tried to seize the applicant’s family's land, or that he or his family have been threatened or harmed by Lipa’s family;
(e)it did not accept that the applicant had genuinely converted to Christianity or had any interest in converting or practising because his evidence was vague and he lacked knowledge or practice of the religion;
(f)it did not accept that information about the applicant’s protection claims had been released in the data breach;
(g)it accepted the applicant had been baptised, had attended baptism and confirmation classes whilst in immigration detention, and had occasionally attended church in Australia, but disregarded this conduct under subsection 91R(3) because it was not satisfied that he had engaged in it otherwise than for the purpose of strengthening his claim to be a refugee; and
(h)on the basis of country information, it found there was no evidence to support the applicant’s claim that he would be perceived to be wealthy as a returnee from the west.
9.For those reasons, the Tribunal rejected the applicant’s protection claims, and found that he would not face a real risk of serious harm in Bangladesh because of his brother’s death in 2004, as a returnee from the West, or on account of the data breach. Consequently, the Tribunal found the applicant did not satisfy the refugee criterion in paragraph 36(2)(a) of the Act. For the same reasons, the Tribunal found the applicant did not satisfy the complementary protection criterion in paragraph 36(2)(aa) of the Act. It was in the context of the Tribunal’s consideration of the complementary protection criterion that it found that, while people in Bangladesh may be curious about the applicant’s religious activities in Australia, as he was not a Christian, did not have any genuine interest in practice, and would not practice, or be interested in practising, Christianity on return, their interest would not be averse and he would not suffer significant harm on this basis or because of his brief and limited involvement in Christian activities in Australia.
(References omitted)
The applicant now seeks judicial review of the Tribunal’s decision. In order to succeed, the applicant must establish that the Tribunal’s decision was affected by jurisdictional error. Although it is not easy to describe precisely what may constitute a jurisdictional error, what it does not include is a difference of opinion about that factual basis of the applicant’s claims. Many of the grounds raised by the applicant, including everything he said in oral submissions, went to the factual basis for the applicant’s claim to be owed protection by Australia and thus do not go to the question of whether there is jurisdictional error.
In his application, the applicant sets out six grounds of review and a page of particulars containing seven paragraphs. Those grounds of particulars are familiar to the Court as they have been raised in identical form in other proceedings: see CHW16 v Minister for Immigration & Border Protection [2017] FCA 762 and BSO16 v Minister for Immigration & Border Protection [2017] FCA 294. Even though those are template grounds and the applicant has neither filed written submissions nor made oral submissions which address them, it is nevertheless incumbent upon the Court to consider whether any of them applies to the facts of this case and, if so, whether it establishes that the Tribunal’s decision was affected by jurisdictional error.
The first ground of review is that, “[i]n making decision, the Administrative Appeals Tribunal acted without jurisdiction or in excess of jurisdiction when it failed to take into account relevant considerations”. There are no particulars to this ground, and the particulars set out in the application do not address it. Reference to relevant considerations in the field of administrative law ordinarily means considerations which are mandatory requirements, although they can be understood to be a reference to other material or evidence, the failure to consider which might constitute jurisdictional error: see for example, Minister for Immigration & Citizenship v SZRKT (2013) 212 FCR 99.
Without any particulars, however, this broad assertion cannot readily be addressed. It suffices, for present purposes, to say that the material before the Tribunal was, on any reading of the Tribunal’s decision, actually considered by it. I cannot see from my reading of the evidence contained in the court book[1], any matter that the Tribunal failed to consider. It may be accepted that the Tribunal failed to accept a good deal of the evidence put forward by the applicant but that is a different matter to failing to consider that material. For those reasons I reject ground 1.
[1] Exhibit A in the proceedings.
The second ground is that “[t]he Tribunal failed to assess my harm on the basis of my claims”. Properly understood, this ground suggests simply that the Tribunal ought to have accepted the applicant’s claims. In my view, it cannot be understood in any other way because the Tribunal (as has been described in the summary of the Tribunal reasons set out above), clearly did consider the applicant’s claims. It was on the basis of the factual findings that the Tribunal assessed the harm that might be likely to come to the applicant on return to Bangladesh. Properly understood then, this ground is an attack on the merits of the Tribunal’s decision and, as I have explained briefly above, cannot support the relief sought by the applicant.
The third ground is that “[t]he Tribunal failed to assess the present situation in Bangladesh since I left”. That is not correct. The Tribunal assessed the applicant’s claims on the basis of its factual findings concerning the claims made by the applicant. Relevantly, the only claim that required further consideration as to the current circumstances in Bangladesh was the claim that the applicant might face harm as a returnee. The Tribunal did assess the current circumstances in Bangladesh in that respect: see [58] and [59]. For those reasons, ground 3 is rejected.
The fourth ground is that the Tribunal decision was affected by natural justice. I understand that to mean to be an assertion that the Tribunal failed to afford the applicant procedural fairness. Once again, however, no particulars are given. No error can be seen in this respect. Given that the Tribunal was operating under the provisions of pt.7 of the Migration Act 1958 (Cth), its obligation to observe the rules of procedural fairness were circumscribed, to a large degree, by the provisions of that Part.
Relevantly, s.424A of the Act requires the Tribunal to provide the applicant with clear particulars of what might be summarised as adverse material. I can see no adverse material that might have given rise to such an obligation that was before the Tribunal. Secondly, there was an obligation under s.425 of the Act to invite the applicant to attend a hearing to give evidence and to present arguments relating to the issues arising in respect of the decision under review. The Tribunal did that. There was no particular complaint made by the applicant about the way in which the Tribunal conducted the hearing. The summary of the Tribunal hearing, contained at [26] and [27] of the Tribunal’s statement of reasons, suggest that the Tribunal complied with its obligations under s.425. For those reasons, I can see no failure to observe the requirements of procedural fairness, and the ground must be rejected.
The fifth ground is that the Tribunal made a decision without any verification of “my genuine documentary evidence and statement”. There are two ways in which this ground can be seen. First, that the Tribunal erred by failing to accept as genuine the applicant’s evidence; and secondly, that the Tribunal ought to, but did not make, inquiries as to the genuineness of the applicant’s claims and the documents put forward by him. If the first of these is what is intended by the applicant, then it fails as a mere attack on the merits. If it is the second, then it must also fail.
The Tribunal is under no general duty to make any inquiries to authenticate any documents or any submissions made by the applicant. It may be, however, that its failure to do so might have a sufficient link to the conduct of its review so that it might constructively have failed to exercise that duty to review. I can see no such necessary link in this case. The Tribunal did not, in fact, reject the authenticity of the corroborating document relied upon by the applicant, but rather, rejected the underlying genuineness of the applicant’s claims including relevantly, the genuineness of his claim to conversion to Christianity.
Otherwise, there were no inquiries that the applicant has put forward which suggested that they might have been obvious and the information easily or readily obtained such that the failure by the Tribunal to undertake them might have constituted jurisdictional error. For those reasons, ground 5 is rejected.
Ground 6 is that the Tribunal decision is identical or similar to the Department’s decision. That ground can be rejected without any detailed analysis.
First, if what is meant by “decision” is the ultimate outcome, which would be the technical understanding, then the decisions were different. The Department’s decision, or the decision of the delegate, was to refuse to grant the applicant a protection visa. The Tribunal’s decision, as was within the scope of its power under the Act, was to affirm the delegate’s decision. Even as a matter of substance rather than form, there is a difference between the two. Even if there were no difference, it would not give rise to a jurisdictional error.
It may be accepted that the Tribunal would not conduct a review within the meaning of s.414 of the Act if it merely copied without thought the reasons and decisions of the delegate. That is not what occurred here. The Tribunal’s statement of reasons reveal that it assessed the material both before the delegate and before it, before arriving at its decision on the basis of its own reasoning process. For those reasons, I am satisfied that it did conduct a review rather than simply copying the delegate’s decision and ground 6 is rejected.
The first paragraph in the particulars is that the Tribunal unreasonably raised doubts over his claims. My understanding of that particular, particularly given the oral submissions by the applicant, is that the applicant disagreed with the conclusions arrived at by the Tribunal. Such a disagreement, even strong disagreement, is not sufficient to constitute legal unreasonableness such as to establish jurisdictional error in the Tribunal’s decision.
The second paragraph is that the applicant was forced to leave Bangladesh by boat. This is a claim that goes, once again, to the merits of the Tribunal’s decision rather than establishing jurisdictional error. The third paragraph is that the Department and the Tribunal asked many irrelevant questions to test the credibility of the applicant’s evidence. There is no evidence before the Court of precisely what questions were asked by the Tribunal and so far as the conduct of the Tribunal is reflected in the Tribunal’s statement of reasons, it is apparent that the Tribunal conducted that hearing in order to assess the veracity of the applicant’s claims and the probabilities of the applicant coming to harm in Bangladesh if he were to return there. Those matters were not irrelevant to the task before the Tribunal.
Paragraph 4 of the particulars is that the Department and the Tribunal found inconsistency because the questions were asked in such a manner for which the applicant was not prepared. The applicant said that sometimes he was nervous and confused at the time of the interview with the Department and the Tribunal and did not understand the interpreter properly. There is no evidence to establish that.
The fifth paragraph in the particulars is that the applicant became a serious target by police, an Awami League gang and their activists, Muslim fundamentalists and the present Awami League government. That again goes to the merits of the Tribunal’s decision.
Paragraph 6 is that the Department accepted that the applicant was confused. He says that he was not understanding what answer he was giving for what question, and said that he would provide more details in his amended application. There has been no amended application filed in this proceeding and the applicant has not established on the evidence the assertions in this paragraph.
Finally, in paragraph 7 of the particulars, the applicant says that he believes he was denied procedural fairness when “the hearing was conducted not freely and fairly”. There is no evidence to establish that, and as I have already said in respect of paragraph 4, on the basis of the material before me, I am satisfied that the Tribunal conducted the hearing in accordance with the requirements of s.425 of the Act.
Conclusion
In summary, nothing in the particulars satisfies me that there was any jurisdictional error in the Tribunal’s decision. The applicant has not established that the Tribunal’s decision is affected by jurisdictional error.
The 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
Date: 1 August 2018
0
4
2