AIL16 v Minister for Immigration
[2017] FCCA 2354
•21 September 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AIL16 & ORS v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 2354 |
| Catchwords: MIGRATION – Application to review decision of the Administrative Appeals Tribunal – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.36(2)(aa), 425 |
| Cases cited: CQG15 v Minister for Immigration and Border Protection (2016) 70 AAR 413; [2016] FCAFC 146 |
| First Applicant: | AIL16 |
| Second Applicant: | AIQ16 |
| Third Applicant: | AIR16 |
| Fourth Applicant: | AIS16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 326 of 2016 |
| Judgment of: | Judge Barnes |
| Hearing date: | 21 September 2017 |
| Delivered at: | Sydney |
| Delivered on: | 21 September 2017 |
REPRESENTATION
| Applicant: | In Person |
| Solicitors for the Respondents: | DLA Piper |
ORDERS
The application be dismissed.
The First and Second Applicants pay the costs of the First Respondent fixed in the sum of $4,850.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 326 of 2016
| AIL16 |
First Applicant
| AIQ16 |
Second Applicant
| AIR16 |
Third Applicant
| AIS16 |
Fourth Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application for review of a decision of the Administrative Appeals Tribunal (the Tribunal) dated 17 January 2016. The Tribunal affirmed a decision of a delegate of the First Respondent not to grant the Applicants protection visas.
The Applicants, citizens of Bangladesh, arrived in Australia in 2013 as the holders of visitor visas. In January 2014, they applied for protection visas.
The First Applicant’s claims were set out in a letter from the Applicants’ migration agent and also in a written statement. In essence, the First Applicant (referred to for convenience as the Applicant) claimed to fear harm on the basis that he was a leading member of the Jamaat-e-Islami political party (JI) in Bangladesh, that he held a position as a Rukon since 2001, representing at least three to four thousand people in his local area, that he had been an active member of JI since being a student and that his membership and position in JI jeopardised his future in Bangladesh. He claimed he had become a target of Awami League (AL) activists and government agencies because of his “long profile” as a JI member and leader. The other Applicants applied as members of his family.
The Applicant claimed he had received anonymous phone calls since 2011 and that a group of people his wife believed were AL activists had visited his home in February 2011, making inquiries about his whereabouts. He claimed his family then decided to relocate to a nearby location. He claimed that in September 2013 four people came to his office, spoke to him about his political career in JI, and left him with a warning that they were from the AL and were to assess his position in JI and to consider whether proceedings would be laid against him as a leading member of that organisation. He claimed that he and his family then obtained visas and travelled to Australia and that after his arrival, he found out that there had been further inquiries and threats through his office.
The application was refused by a delegate of the First Respondent. The delegate expressed concern about the Applicant’s credibility, did not accept his claims to be a member or supporter of JI in Bangladesh and found that even if he was a supporter, he was a rank-and-file supporter, of no profile. The delegate did not accept the claims about threats on account of the Applicant’s political opinion.
The Applicants sought review by the Tribunal. The First Applicant attended a Tribunal hearing. His adviser provided written submissions, addressing concerns of the delegate and reiterating the Applicant’s claims about involvement in JI and to be a target of AL having regard to his profile with JI.
In its reasons for decision, the Tribunal set out the Applicant’s claims as made in the agent’s covering letter and in his written statement. It referred to the delegate’s reasons for decision, a copy of which had been provided by the Applicants, and summarised the delegate’s findings. It referred to submissions by the Applicants’ agent, repeating factual matters, responding to some of the criticisms in the delegate’s decision and providing an explanation for the fact that the Applicant had no corroborative evidence of his membership or activities with JI (that most of the leaders and responsible office-bearers were “on the run” and in hiding and that it was difficult to organise such materials to be obtained in Bangladesh and sent to the Applicant in Australia).
The Tribunal had regard to the Applicant’s evidence at the hearing. The Tribunal stated that part of that evidence was largely consistent with the written statement, but found that there were a number of matters which were not referred to at all in the statement and a number of inconsistencies in the Applicant’s evidence that affected its consideration.
The Tribunal concluded that, except where otherwise stated, it was unable to accept many of the Applicant’s claims. It found that significant portions of his evidence were unreliable, that he was an unpersuasive witness who had demonstrated a lack of recall of certain matters in his statement with little or no explanation and that he had no persuasive explanation as to why he failed to include critical matters in that statement (such as claims he made to the Tribunal about threats his children would be kidnapped).
Save for historic matters such as his family background, schooling and education, the Tribunal found that the Applicant did not impress as a coherent or reliable witness. It stated that this became apparent early in the hearing, when the Applicant was asked when he joined JI. The Tribunal recorded that he said 2001 (although in his statement he had said 1998) and that he later changed this evidence. The Tribunal found that the Applicant was similarly vague about when he joined the Chatra Shibir (the student wing of JI).
The Tribunal addressed specific concerns about aspects of the Applicant’s evidence. It had regard to inconsistencies in his oral evidence and between his oral evidence and his written statement as to the success or otherwise of a networking business he had operated before he started a different business. The Tribunal also had regard to inconsistencies in his evidence about the claimed events of February 2011. It recorded that in his statement the Applicant claimed that his wife called him at his office to say five or six people had attended his home making an inquiry about his whereabouts; that she believed they were AL activists; that he did not return home for a week; and that the following month they relocated to another house in the same suburb. The Tribunal considered a number of differences between this account and the Applicant’s oral evidence, including as to what was said when the people visited his home; whether he moved back home before relocating; when he relocated; and when the family relocated. It also had regard to the fact that when asked about these differences in his evidence, the Applicant said that the statement was correct and what he had told the Tribunal in the hearing was a mistake. The Tribunal found that such a response was unconvincing.
The Tribunal also found the Applicant had not provided a satisfactory response to the concern it raised with him about the fact that, on his evidence, his wife and children were at home alone in this period and the children continued to attend the local school. It asked him whether he was concerned about leaving them by themselves while he was staying elsewhere. The Tribunal found that the Applicant was initially unresponsive to this question.
Because of these concerns, the Tribunal had considerable doubts about the reliability of the Applicant’s evidence in relation to the claimed 2011 incident.
The Tribunal considered the fact that at the hearing, the Applicant claimed that some AL members had attended his daughter’s school. It recorded that he had not provided a direct response when asked when this had happened, had not been able to provide any accurate evidence as to when it had happened, and had then provided confusing evidence as to whether or not his children kept attending the same school. The Tribunal also had regard to the fact that the claim that AL supporters visited the Applicant’s daughter’s school had not been mentioned in the written statement. It found that the Applicant’s explanation that it was not possible to mention everything in the statement was unpersuasive, as he had only mentioned three claimed incidents of harassment in the statement and while he claimed to the Tribunal that there were many other incidents, including threats of kidnapping the children (so that he would become fearful and cease his JI activities) this was a serious threat and (as the Tribunal recorded it put to the Applicant) it would be surprising that this not be mentioned in the statement in support of his protection visa application. The Tribunal found the Applicant’s response that there were many things he could not put in his statement, which he was only remembering when he was discussing matters with the Tribunal, was unconvincing. Because of these concerns, the Tribunal had considerable doubts about the reliability of the Applicant’s evidence in relation to this alleged incident.
The Tribunal addressed the Applicant’s claim about the visit of AL supporters to his office in September 2013. It recorded that it had asked the Applicant at the hearing to amplify what occurred, at which point he claimed that “they” had attended his office quite a number of times, whereas his statement referred to only one visit. The Tribunal recorded the Applicant’s explanation for this inconsistency (to the effect that when he was in Bangladesh, the AL had visited his office once, but that they also visited his office after his arrival in Australia).
The Tribunal found that when asked to elaborate on the incident referred to in his statement, the Applicant was unable to remember exactly when this happened, that his answer was discursive, and that his description of the circumstances in which this visit occurred was inconsistent with the explanation in his written statement. In particular, the Applicant told the Tribunal that the AL supporters barged or forced their way into his office, whereas in his statement he had said they attended his office after he received a telephone call and allowed them to meet him there. When asked about this inconsistency, the Applicant suggested that he was talking about another incident. However because of these concerns, the Tribunal had considerable doubts about the reliability of the evidence in relation to this alleged incident.
The Tribunal made findings in light of these concerns. It accepted the claims about the Applicant’s background, the businesses he had operated and that after his business became successful he had contributed a monthly amount to JI as part of his support for it. It accepted that prior to being a member of JI, the Applicant had been involved in the student wing (the Chatra Shibir) and that he had received some financial support from JI. It accepted that he was a member of JI in Bangladesh and held a position as Rukon, arranging meetings and religious conferences to care for the welfare and religious activities of members. However, it did not accept that, as he claimed, he was a “leading member” or “dedicated activist” of JI, finding these claims to be exaggerated.
The Tribunal also found that it did not accept certain matters on the basis of the Applicant’s “uncorroborated say-so” and in light of its findings as to his credibility, in particular his claims that he received anonymous phone calls on many occasions since 2011; that he had been listed as a target because of his profile and position in JI for a long time; his claims about inquiries at his home in February 2011 and as to what he did thereafter; that AL activists attended his children’s school at some time in 2011 to send him a warning about his activities; that at other, unidentified times, he received threats that his children would be kidnapped; or that he and his family decided to relocate to avoid any mishap and moved to another location in the same suburb.
Nor did the Tribunal accept that in September 2013 AL activists attended the Applicant’s office to warn him that he needed to assess his current position in JI and that they were considering whether proceedings could be brought against him as a leading member of the local organisation or that following that visit, he immediately relocated with his family to his parents’ home. While the Tribunal referred to “JI activists” in this part of its reasons, as discussed below it is clear this was a typographical error.
The Tribunal had regard to the fact that the Applicant’s claims to fear persecution were said to be on the basis of his political opinion of being a member, if not a leading member, of JI. It referred to country information, in particular a 2014 DFAT Report, indicating that supporters or members of political parties in Bangladesh were not at risk of being arrested or living in fear of violence on a day-to-day basis due to their political affiliations, although opposition leaders or members with high profiles faced a low risk of being individually targeted and members with a high profile may face a higher risk when engaged in protests.
In light of this information while the Tribunal accepted that the Applicant was a member of JI and previously of the Chatra Shibir, as it did not accept that he was a leading member or dedicated activist as claimed, it did not accept that there was anything about his profile which suggested that he faced a real chance of serious harm if he returned to Bangladesh.
The Tribunal did not accept that one or more of the Refugees Convention reasons would be the essential and significant reason for the Applicant being harmed if he returned to Bangladesh. It stated that it had considered whether the Applicant’s claimed fears of serious harm amounted to persecution both individually and cumulatively. It was not satisfied he faced a real chance of serious harm for any of the reasons claimed, or arising on the evidence, individually or cumulatively. It was not satisfied that he met the Refugees Convention criterion.
The Tribunal considered the complementary protection criterion in light of its findings. It found that having considered the Applicant’s circumstances and having regard to the 2014 DFAT report, it was not satisfied that the Applicant met the complementary protection criterion.
Hence the Tribunal was not satisfied that the Applicant’s family members met the criteria for protection visas. It affirmed the delegate’s decision.
The Applicants sought review by application filed in this court on 15 February 2016. There are two grounds in the application.
Before considering these grounds and the matters raised by the Applicant, I note that this matter was initially listed for hearing on 4 August 2017. The hearing commenced on that day. The Applicant was given, and took, the opportunity to address the grounds in his application and also any other concerns he had with the Tribunal decision or procedures. However after raising such concerns, the Applicant sought an adjournment so that he could get a lawyer. He claimed he had talked to someone who said that they would represent him, but that the time was too short. He then explained that he had an appointment to see a named lawyer. He had a business card for such a lawyer.
In these circumstances, notwithstanding my concern about the time that had passed since the application had been filed, I adjourned the hearing until today and made orders that allowed the Applicant to file an amended application, further evidence and written submissions.
The Applicant appeared for himself today as he had not obtained legal representation. When given a further opportunity to address his concerns about the Tribunal decision or procedures, he said that he had problems in his country and that if he went back he would be persecuted and on that basis wanted his case reconsidered.
Insofar as the Applicant raised these concerns, he misunderstands the nature of these proceedings and seeks impermissible merits review.
I have considered the other matters that the Applicant has raised (which were also addressed in submissions for the Minister) as well as the grounds in the application.
It is convenient to consider first the matters raised in the Applicant’s oral submissions.
As the solicitor for the First Respondent submitted, in essence there were two main aspects to the Applicant’s complaints. First, he complained that the Department and the Tribunal did not listen to him and that they had a preconceived notion that he was lying. He referred in particular to the circumstances in which he had travelled to Australia (apparently concerned about the delegate’s reliance on his provision of false or misleading information to obtain a visa). Secondly, he suggested that “they” had not taken certain evidence into account.
Insofar as the Applicant’s concerns are with the delegate’s decision, it is not the subject of these proceedings.
As the solicitor for First Respondent submitted, the first of these concerns could be seen as a contention that the Tribunal did not conduct the review with an open mind. However neither actual nor apprehended bias on the part of the Tribunal is made out on the evidence before the Court.
Allegations of bias must be distinctly made and clearly proved (see Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17). The only evidence of what occurred at the Tribunal hearing is the Tribunal’s account in its reasons for decision. It is not supportive of the Applicant’s claims in this respect. It is a rare and exceptional case in which actual bias will be demonstrated solely from the published reasons for decision (see SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668). This is not such a case.
It is well-established that the Tribunal is entitled to assess the evidence and attach such weight to particular items of evidence, as it regards appropriate (see SBBA v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 90). The mere fact of disbelief of an applicant’s claims is not sufficient to establish bias (see SBBA at [15]). I also note that in this case the Tribunal did not disbelieve all of the Applicant’s claims. Contrary to the approach taken by the delegate, it accepted that he was a member of JI and supported it and that he was a Rukon. However it did not accept his claims about his prominence and leadership role. Further, the Tribunal reached those conclusions notwithstanding the absence of any supporting corroborative documentation in relation to his claims about membership of and involvement in the JI (an issue the Applicant mentioned in his oral submissions). This is not a case in which the Tribunal’s fact-finding was conducted in a manner which would give rise to a concern as to either actual or, indeed, apprehended bias (see NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264; [2004] FCAFC 328).
There is nothing in the material before the Court to suggest bias in the form of prejudgment such as to indicate that the Tribunal was committed to a conclusion already formed and that the Tribunal member’s mind was incapable of alteration, whatever evidence or arguments may be presented, as considered in Jia Legeng.
Apprehended bias in the sense considered in Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425; [2001] HCA 28, whether in the manner in which the Tribunal assessed the credibility of the Applicant or disbelieved aspects of his claims or otherwise, has not been established.
While credibility findings are not immune to challenge (as the Federal Court has pointed out in CQG15 v Minister for Immigration and Border Protection (2016) 70 AAR 413; [2016] FCAFC 146), this is not a case in which any basis to challenge the Tribunal’s credibility findings has been established, insofar as that may have been intended by the Applicant. The Tribunal’s findings were reasonably open to it on the material before it for the reasons it gave (and see CQG15 at [37]-[38]).
As to the contention that the Tribunal failed to have regard to evidence, the Applicant initially seemed to suggest that he had “deposited”, as he put it, some papers indicating that he was an active and prominent member of JI and had been targeted on that basis.
I asked the Applicant to describe the documents he claimed that the Tribunal had not taken into account, in circumstances where there were no documents in the Courtbook that appeared to corroborate his claimed prominence in JI (other than his assertions and those of his agent).
The Applicant referred to a document in the Courtbook (p.148) from Wikipedia. It is a description of the Bangladeshi JI. It is the case that this document was not referred to in the Tribunal reasons for decision. However, while a failure to have regard to corroborative or other evidence that is cogent and critical to an Applicant’s case can amount to jurisdictional error (see Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317), this is not such a case. The Wikipedia article contains a general description of JI. Insofar as there is a discussion in the article about mistreatment of leaders of JI, as indicated, the Tribunal found, for reasons which it gave and which were reasonably open to it on the material before it, that it did not accept the Applicant’s claims about his prominence and leadership role in the JI party.
In these circumstances, the Tribunal’s failure to refer to a general article about JI, or to aspects of that article in relation to mistreatment of JI leaders, is not such as to amount to a failure to refer to cogent evidence that is critical to or corroborative of the Applicant’s claims. The Tribunal is not obliged to refer to every item of independent country information (SZEHN v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1389 per Lindgren J at [58]). The Applicant’s concerns in this respect do not establish jurisdictional error.
The first ground in the application is that the Tribunal failed to provide reasons for its decision pursuant to s.36(2)(aa) of the Act. The particulars are that it “explicitly failed to provide separate reasons to its consideration under section 36(2)(a) of the Act”.
It is the case that the Tribunal’s findings in relation to the complementary protection criterion in s.36(2)(aa) of the Act were relatively brief. However the Tribunal indicated that in determining whether the Applicant met the complementary protection criterion it had considered whether, in light of the findings it had set out, there were substantial grounds for believing that as a necessary and foreseeable consequence of the Applicant being removed from Australia to Bangladesh there was a real chance he would suffer significant harm. In this part of its decision it referred to the applicable test in relation to complementary protection, which had also been referred to earlier in its reasons for decision, as had the need to take account of policy guidelines.
The Tribunal then went to state at [51]:
Having considered the first applicant’s circumstances and having regard to the October 2014 DFAT country information, the Tribunal is not satisfied there are substantial grounds to believe that, as a necessary and foreseeable consequence of the first applicant being removed from Australia to Bangladesh, there is a real risk he would suffer significant harm in terms of s 36(2(aa) of the Act, specifically that there is a real risk he would be arbitrarily deprived of his life, that the death penalty will be carried out on him, that he will be subjected to torture, or that he will be subjected to cruel or inhuman treatment or punishment or to degrading treatment or punishment.
The reference to “[h]aving considered the first applicant’s circumstances” is clearly a reference to the Tribunal’s consideration of the Applicant’s claims, its credibility concerns, the particular findings about his circumstances, as well as its discussion at [46] to [48] of the country information, and the ultimate findings in relation to the Refugees Convention claim. Such prior factual findings, made by reference to the Refugees Convention criterion, were germane to the assessment of the Applicant’s claims under the complementary protection criterion. In these circumstances, it was not necessary for the Tribunal to engage in a separate consideration of the same factual matters in relation to the complementary protection criterion (see SZSYI v Minister for Immigration and Border Protection [2015] FCA 1276 at [46]-[47] and SZSHF v Minister for Immigration and Border Protection [2014] FCA 237 at [25]-[26]). The Tribunal had already considered the Applicant’s claims. In particular it had made a factual finding as to his political profile and addressed his risk on that basis. It was not necessary for it to make separate factual findings in relation to the same claim for the purposes of the complementary protection assessment. This is not a case in which there is any indication that the Applicant made separate complementary protection claims not first considered under the Refugees Convention criterion. This ground is not made out.
The second ground is that the Tribunal failed to apply the correct test according to s.36(2)(aa) of the Act. The particulars are that in dealing with the Applicant’s claims under s.36(2)(aa) the Tribunal “explicitly failed to disaggregate the statutory formulae under ss.36(2)(a) and 36(2)(aa) of the Act”.
Contrary to this contention, the Tribunal correctly identified the test for complementary protection in s.36(2)(aa) of the Act. There is nothing in the reasons for decision to indicate that the Tribunal applied any other test or that it failed to disaggregate, or to distinguish between, the complementary protection criterion and the Refugees Convention criterion. This ground is not made out.
The First Respondent also raised for completeness the fact that there is nothing in the material before the Court to indicate that the Tribunal failed to comply with s.425 of the Act, including its obligation to raise dispositive issues, consistent with SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63. It appears from the Tribunal reasons for decision that at the hearing it raised concerns with the Applicant in relation to aspects of his claims.
I also note that, as indicated earlier, the Tribunal incorrectly referred to the Applicant’s claim about the events of September 2013 as a claim that “JI activists” attended his office. This was clearly intended to be a reference to “AL activists” as is clear from the Tribunal’s earlier detailed discussion of the claimed visit to the Applicant’s office in September 2013 by AL supporters. Such a typographical error is not indicative of a failure by the Tribunal to consider the Applicant’s claims or to otherwise conduct its review and does not establish jurisdictional error.
As no jurisdictional error has been established on any of the bases contended for by the Applicants, the application must be dismissed.
The Applicants have been unsuccessful. The Minister seeks the costs thrown away on the last occasion and also the costs of the proceedings generally. The total amount sought is $4,850, which is considerably less than the scale amount provided for in the Federal Circuit Court Rules. It is appropriate that the unsuccessful Applicants meet the costs of the First Respondent. The Applicant indicated that this amount was too much for him. Insofar as this was an indication of an inability to meet such costs, that is not a reason for departing from the normal principle that an unsuccessful applicant should meet the costs of the First Respondent, although it may be a matter to be taken into account by the First Respondent in determining when and how to seek to recover such costs. The costs order should only be made against the adult applicants.
I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Judge Barnes
Associate:
Date: 26 September 2017
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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