Aeq17 v Minister for Immigration
[2020] FCCA 3114
•19 November 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AEQ17 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 3114 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – Protection visa – whether the Tribunal failed to put its concerns under s 424 of the Migration Act 1958 (Cth) for certain information it relied on, to affirm the delegates decision – whether the Tribunal failed to assess the applicant’s claim of his political activities including financial contribution under complementary protection visa – whether the Tribunal failed to check the authenticity of the documents that the applicant submitted to the DIBP and to the Tribunal and question the credibility of the applicant – whether jurisdictional error is made out – no jurisdictional error is made out – the application is dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 424 |
| Cases cited: ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 Minister for Immigration and Citizenship v SZNVW (2010) 183 FCR 575 Re Minister for Immigration and Multicultural Affairs: Ex parte Durairajasingham (2000) 168 ALR 407 SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 SZNJQ v Minister for Immigration and Citizenship [2010] FCA 138 WZAVW v Minister for Immigration [2016] FCA 760 |
| Applicant: | AEQ17 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 109 of 2017 |
| Judgment of: | Judge Humphreys |
| Hearing date: | 11 November 2020 |
| Date of Last Submission: | 11 November 2020 |
| Delivered at: | Parramatta |
| Delivered on: | 19 November 2020 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Respondents: | Ms Pieri - HWL Ebsworth Lawyers |
ORDERS
The name of the first respondent be changed to the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
The application is dismissed.
The applicant to pay the first respondent’s costs fixed in the amount of $5600.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 109 of 2017
| AEQ17 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of Bangladesh. The applicant arrived in Australia on 24 December 2014 as the holder of a Subclass 240 Entertainment visa. The applicant applied for a protection visa under
s 65 of the Migration Act 1959 (“the Act”) on 6 January 2015. On 17 August 2015, a delegate of the Minister for Immigration (“the delegate”) refused to grant the applicant a protection visa.
The applicant sought merits review at the Administrative Appeals Tribunal (“the Tribunal”). In a decision dated 15 December 2016, the Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa.
The applicant now seeks judicial review of the Tribunal’s decision.
The Administrative Appeals Tribunal Decision
After setting out the relevant legal requirements for a protection claim to be successful, at paragraph 11 of its decision, the Tribunal set out the applicant’s claims from a Statutory Declaration dated 21 July 2015. These included the applicant’s involvement in political activity in Bangladesh and his claimed active involvement in meetings and processions. This includes leaving Bangladesh in 1997, moving to Singapore and then to Malaysia, due to fear from the applicant’s political enemies.
The applicant claims that he returned to Bangladesh in 2004 and again became involved in political activities. The applicant claims that police lodged a false case against him in 2011, accusing him of sabotaging a political party. The case was later dismissed in 2013. Two further cases were filed against the applicant for hindering police and in relation to a weapon. The applicant says that a warrant was issued for his arrest and that is why he fled to Australia. The applicant also claims that he donated a sum of money to a political party in Bangladesh while in Australia and has been involved with political activities in Australia.
At paragraphs 21 through to 23 of its decision, the Tribunal put concerns to the applicant regarding a claim that he had lost his passport in circumstances where there is information that his new passport had been issued prior to him reporting that the other passport was lost.
At paragraph 27 of its decision, concerns were put to the applicant that if arrest warrants had been issued against him, he would not have been able to depart the International airport at Dhaka as claimed. At paragraph 38 of its decision, the Tribunal put to the applicant that he stated that he was elected as president of a political party in July 2014, but that the letter from the organisation confirming this, is dated July 2013. At paragraph 43 of its decision, the Tribunal put to the applicant concerns regarding some of the documents from Bangladesh that he provided, could be bogus and that if it did so find, it might lead the Tribunal to conclude that he had fabricated his claims in their entirety.
At paragraph 64 of its decision, the Tribunal found that the arrest warrants issued to the applicant on 8 April 2014 and 3 October 2014 were bogus documents. This finding was based on information from the Department of Foreign Affairs and Trade (“DFAT”) which indicates that lists of people wanted by the security forces are maintained by the Department of Immigration and Passports and that these lists, may be used to prevent people from leaving the country. The Tribunal considered that if the applicant was subject of two arrest warrants, he would not have been able to depart from the international airport at Dhaka.
At paragraph 69 of its decision, the Tribunal did not accept the applicant’s claims that he was a supporter or member of various political organisations. The Tribunal found it implausible that a 37-year-old man will continue to be involved in the youth wing of the political party he claimed. The Tribunal also found that the applicant provided a number of bogus documents relating to his claimed political involvement. The applicant’s statutory declaration contained inconsistencies with these documents. Accordingly, the Tribunal found that the applicant’s evidence in relation to his political activities in Bangladesh were entirely unreliable.
As the Tribunal found that the applicant was not involved in politics in Bangladesh, the Tribunal found that his joining of a political party in Australia was not a genuine expression of his political opinion or an indication that he would be politically active upon his return to Bangladesh. Accordingly, the Tribunal found the risk that the applicant would be involved in politics if he were to be returned to Bangladesh, was remote.
At paragraph 78 of its decision, the Tribunal was prepared to accept that the applicant was assaulted on 9 February 2015 in Australia. The Tribunal accepted that the assault was perpetrated by people associated with the agent who had arranged his passage to Australia and was motivated by the failure of the applicant to return to Bangladesh. As the assault was motivated by the applicant’s continued presence in Australia, the Tribunal was not satisfied that he would be at risk if he returned to Bangladesh.
Accordingly, the Tribunal concluded that the applicant did not meet the criteria under either s 36(2)(a) or (aa) of the Migration Act 1958 (Cth) (“the Act”), and affirmed the decision of the delegate not to grant the applicant a protection visa.
Grounds of Judicial Review
The grounds of judicial review are set out in an Initiating Application filed with the Court on 13 January 2017. They are as follows verbatim:
Ground One
The Tribunal failed to put its concerns under s424 for certain information it relied on to affirm the decision.
Ground Two
The Tribunal failed to assess the applicant claim of his political activities including financial contribution under complimentary protection visa.
Ground Three
The Tribunal failed to check the authenticity of the documents the applicant submitted to the DIPB and to the AAT and question the credibility of the applicant.
The Applicant’s Submissions
The applicant appeared before the Court unrepresented. The applicant was assisted by an interpreter. Notwithstanding Court orders, no written submissions or other material were supplied by the applicant in support of his case.
At the commencement of the hearing, the Court ensured that the applicant was in possession of a copy of the relevant Court books and that the first respondent’s written submissions had been interpreted to him.
The Court carefully explained the difference between merits review and judicial review. The Court also explained how the hearing would be conducted.
The applicant told the Court that he was not aware of what was in the papers that were used for him to come to Australia. The applicant gave the migration agent money, and the agent took care of all the documentation. The applicant reiterated that he had sent money home to support the Bangladesh Nationalist Party (“BNP”), but had thrown the receipts away. The applicant said that he was always a supporter of the BNP and he continued to support the BNP in Australia. The applicant said that he was illiterate and relied upon the Court to make the correct decision. Even though the Tribunal did not believe what the applicant said, it was better here than in his home country.
Following the first respondent’s oral submissions, the applicant was asked if there was anything further that he wished to put to the Court. The applicant replied that the Tribunal accepted that he was attacked in Australia, and that if he was attacked here, in Australia, that he would be killed if he went back to Bangladesh.
The First Respondent’s Submissions
In written submissions, the legal representative for the first respondent noted that ground one alleges that the Tribunal failed to put concerns to the applicant pursuant to s 424 of the Act that were relied upon, to affirm the delegate’s decision. It was submitted that s 424 of the Act does not place any obligation on the Tribunal to put information to the applicant.
If the applicant is alleging that the Tribunal failed to put its concerns to the applicant pursuant to either s 424A or s 424AA of the Act, these concerns have not been particularised. It was submitted that information for the purposes of s 424A(1)(a) of the Act, is information that is “related to the existence of evidentiary material or documentation, not the existence of doubts inconsistencies or the absence of evidence”. This section is not engaged by any material that contains or tends to reveal inconsistencies in the visa applicants evidence: (see SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 (“SZBYR”) at [18]-[19]).
Further, and in any event, based on the Tribunal decision, it is evident that the Tribunal put its concerns about the applicant’s evidence to the applicant at the hearing: for example, see paragraphs 20 to 22, 29, 35 and 42 of its decision.
Ground two alleges that the Tribunal failed to assess the applicant’s claim of political activities, including financial contribution under the complimentary protection criterion. Contrary to the ground pleaded, the Tribunal did consider and assess the applicant’s claim to his involvement in political activities at paragraphs 36 to 42, 50 to 52, 66 to 67, 69 to 70 and 74 to 77 of its decision. The Tribunal also considered and assessed the applicant’s claims that he made financial contributions to the BNP at a number of places in its decision.
At paragraph 77 of its decision, the Tribunal found that the applicant would not be involved in politics if he were to return to Bangladesh and therefore the risk or chance of the applicant being harmed in the reasonably foreseeable future, for reason of his political opinion, was remote. It can therefore be inferred that the Tribunal considered whether the applicant’s political activities and his financial contribution would cause harm in the future. Both the refugee and complimentary protection criteria were considered.
Further, noting that the real chance or real risk tests are the same in both s 36(2)(a) and (aa) of the Act, it can be inferred that the Tribunal had regard to the applicant’s political involvement and financial contributions when assessing complimentary protection.
The third ground alleges that the Tribunal failed to check the authenticity of the documents that the applicant submitted to the Department of Immigration and Border Protection (“the Department”) and the Tribunal “questioned the credibility of the applicant”.
It was submitted that the Tribunal was under no obligation to enquire into the authenticity of the applicant’s documentary material. Further, the applicant has failed to provide any particulars regarding which documents the Tribunal should have enquired about. It is not suggested that there was an obvious enquiry that the Tribunal could have made about a critical fact that the existence of which could have been easily ascertained: (see Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 at [20]-[25]).
The Tribunal is not obliged to investigate or conduct an enquiry to discover whether the applicant’s case might be better put or supported by other evidence: (see Minister for Immigration and Citizenship v SZNVW (2010) 183 FCR 575 at [36]). The duty of the Tribunal is to review, not to inquire.
Further, findings of adverse credibility where such findings are reasonably open on the evidence before it, are properly a function for the decision-maker and are generally not susceptible to judicial review by the Court : (see Re Minister for Immigration and Multicultural Affairs: Ex parte Durairajasingham (2000) 168 ALR 407 at [67]).
In oral submissions, the legal representative for the first respondent noted that the matters raised by the applicant orally only went to the merits of the case and did not point to any jurisdictional error.
Consideration
In relation to ground one, no particulars are provided as to what information was not put to the applicant. If grounds of judicial review are not supported by particulars, for that reason alone, they are liable to be dismissed: (see WZAVW v Minister for Immigration [2016] FCA 760 at [35]). The Court is not satisfied that there was ‘information’ before the Tribunal, and to which it had regard, that enlivened any obligation under s 424A of the Act. Nor does information include the Tribunal’s subjective appraisals and thought processes and determinations, defects, gaps, or lack of detail, in an applicant’s evidence: (see SZBYR at [18]). Further, there is nothing to indicate that the Tribunal did not fully comply with the requirements of s 424AA of the Act. The applicant has not sought to prove non-compliance by tendering a transcript of the Tribunal hearing. In the absence of such evidence, the Court should infer that the Tribunal did comply with its obligations: (see SZNJQ v Minister for Immigration and Citizenship [2010] FCA 138 at [38]). Ground one reveals no jurisdictional error.
Ground two must fail at a factual level. As pointed out by the legal representative for the first respondent, the Tribunal clearly put to the applicant, material that related to his membership of a political organisation in Bangladesh. The Tribunal clearly put to the applicant, for example, inconsistencies in the evidence he had provided at paragraph 39 of its decision, and that he had provided bogus documents, at paragraph 43 of its decision. The Court notes that at paragraph 49 of its decision, the Tribunal gave the applicant time after the hearing to provide documentary evidence of his donations to a political party. At paragraph 72, of its decision, the Tribunal considered a Western Union document provided after the hearing. On its face, it did not relate to the political party that the applicant said he supported. Accordingly, the Tribunal placed no weight on it as being evidence of the donation to that political party.
In its conclusions, the Tribunal found that there were not substantial grounds for believing that, in a necessary and foreseeable consequence of the applicant being removed from Australia to Bangladesh, that there was a real risk he would suffer significant harm. At paragraphs 82 to 83 of its decision, the Tribunal considered the complimentary protection criterion. The Tribunal was also not satisfied that Australia had protection obligations under s 36(2)(aa) of the Act. The applicant’s claim that the Tribunal failed to consider the complimentary protection criterion accordingly, must fail.
The third ground alleges that the Tribunal failed to check the authenticity of documents that the applicant submitted to the Department and the Tribunal and “questioned the credibility of the applicant”.
As submitted by the legal representative for the first respondent, the Tribunal is under no general obligation to investigate an applicant’s claims: (see Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43]). The Tribunal is not obliged to make the applicant’s case for him. Further, the applicant has also failed to provide any particulars as to what documents the Tribunal should have checked. This of itself is sufficient for the ground to be dismissed: (see WZAVW cited above).
The Court is satisfied that the Tribunal’s findings were open to it on the evidence and material before it and for the reasons it gave, including adverse credibility findings. The Court is not satisfied that those findings were tainted by any failure to afford procedural fairness or that it reached a finding without a logical or probative basis or any finding was subject to legal unreasonableness: (see ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109 at [83]).
In coming to the conclusions it did, the Tribunal set out the inconsistencies it found in the applicant’s evidence and put those inconsistencies to him. The Tribunal even went to the further extent of allowing the applicant the opportunity of providing further documentary evidence as to his political donations to a political organisation in Bangladesh. The documentation that was subsequently provided did not satisfy the Tribunal’s concerns. Ground three reveals no jurisdictional error.
As the applicant was unrepresented, the Court carefully perused the Tribunal decision. No jurisdictional error was apparent that was not articulated by the applicant.
Conclusion
The application is dismissed
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Humphreys
Associate:
Date: 19 November 2020
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