AJI16 v Minister for Immigration

[2017] FCCA 2743

FEDERAL CIRCUIT COURT OF AUSTRALIA

AJI16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2743

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugee Division) – protection visa – s 438 certificate – existence of certificate not disclosed to applicant – whether this resulted in lack of procedural fairness – whether jurisdictional error if certificate invalid – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 424A, 424AA, 425, 438, 476

Cases cited:

SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235

Applicant: AJI16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 356 of 2016

Judgment of: Judge Street

Hearing date: 9 November 2017

Date of Last Submission: 9 November 2017

Delivered at: Sydney

Delivered on: 9 November 2017

REPRESENTATION

Solicitors for the Applicant: Mr M Jones
Parish Patience Bitel Pty Ltd

Counsel for the Respondents: Mr G Johnson

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The amended application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $5,800.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 356 of 2016

AJI16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. 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 22 January 2016, affirming the decision of the delegate not to grant the applicant a protection visa. The applicant was found to be a citizen of Bangladesh and his claims were assessed against that country.

2. The applicant, on 12 November 2008, was granted a subclass UC-456 Business (Short Stay) visa valid to 12 February 2009 for a single entry for three months’ duration. On 19 November 2008, the applicant arrived in Australia.

First protection application

1. It was not until 24 December 2008 that the applicant lodged an application for protection. That application for protection was refused on 13 March 2009. On 20 May 2009, a previous Tribunal affirmed the decision to refuse the visa. The applicant unsuccessfully sought judicial review which was dismissed on 2 November 2009.

2. The applicant then sought to pursue, on 2 December 2009, ministerial intervention, which resulted in an outcome of “not considered” on 27 April 2010. On 20 August 2013, the applicant lodged a further application for ministerial intervention, which resulted in an outcome identified as “request not progressed”.

Second protection application

1. On 19 February 2014, consistent with the principles in SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235, the applicant lodged a second application for protection on the grounds of complementary protection.

2. On 22 May 2014, the delegate found the applicant failed to meet the criteria for the grant of the visa on the grounds of complementary protection.

The Tribunal’s decision

1. The applicant applied for review on 24 June 2014. The applicant was invited to attend a hearing by a letter dated 2 October 2015, to be held on 26 November 2015. The hearing was then rescheduled by letter dated 27 October 2015 to be held on 19 January 2016. The applicant appeared on that date together with the applicant’s representative to give evidence and present arguments.

Hearing before the Tribunal

1. In the course of the hearing, the transcript having been tendered, it is apparent that the member made a reference to the applicant having made a request to the Minister for Immigration for ministerial intervention on 2 December 2009. The Tribunal member made express reference to what was said in that request for ministerial intervention, in the context of steps taken to comply with s 424AA of the Act. The Tribunal member made further reference to the applicant having made an application for ministerial intervention on 2 December 2009. There was then reference to what was said in that application and, also, the applicant writing to the Minister again for ministerial intervention on 20 August 2013 and what was said in that letter. Again, steps were taken in compliance with s 424AA in the course of the hearing in that regard.

Section 438 certificate

1. On 2 July 2014, a certificate under s 438 was issued, in respect of folios 108 to 129 of the Department file. That material has been tendered before the Court and is the material in respect of the ministerial intervention requests by the applicant. The delegate’s decision refers to the history in respect of the ministerial intervention applications by the applicant. The transcript of the hearing before the Tribunal takes the matter further, identifying that the Tribunal member had before her the ministerial intervention material for both the 2009 and 2013 requests.

Complementary protection assessment

1. The Tribunal identified the applicant’s background in relation to his migration history and the earlier application for protection. The Tribunal set out the relevant law in relation to complementary protection. The Tribunal identified the applicant’s claimed fears, which may be summarised as follows:

   a)The applicant is a member of the Awami League and holds an opinion against Jamaat and the Bangladesh National Party (“the BNP”).

   b)The applicant has participated in a demonstration against Jamaat in support of the Awami League in Australia in recent times and fears that if he returns to Bangladesh, he will be targeted by Jamaat and Islamic extremists for engaging in activities against them.

   c)The applicant alleges fear by reason of the Jamaat having established their influence and now viewing Awami League members and supporters overseas as the main threat because they expose the inhuman activities of the BNP and Jamaat.

   d)The applicant also fears he will not get state protection because the country is in chaos and the Jamaat members continue to target grass root level members of the Awami League.

   e)The applicant fears he is at real risk of harm, including torture, inhumane treatment, cruel and degrading treatment due to his political opinion.

   f)The applicant alleges high level Awami League members can get protection through their connections, but people like the applicant cannot.

   g)The applicant claim to fear harm at the hands of the Bangladeshi Police.

Credibility Findings

1. The Tribunal found aspects of the applicant’s evidence to be vague and lacking in detail and other aspects of his evidence to be implausible. The Tribunal identified a number of inconsistencies and contradictions in the applicant’s evidence, including the making of new claims, which the Tribunal did not find convincing. The Tribunal identified having concerns in relation to the applicant’s credibility and the veracity of his claims. The Tribunal gave detailed reasons in support of the credit findings in respect of the applicant’s inconsistencies and omissions and concerns in respect of credit, as well as detailing the steps taken in compliance with s 424AA of the Act.

2. In that regard, the Tribunal made express reference to the applicant having made an application for ministerial intervention on 2 December 2009, and referring to the fact that, in that request, the applicant stated that the Bangladeshi government wanted to detain him for his involvement in a protest in Kuwait. The Tribunal observed that, during the hearing in relation to the first application for protection on 19 May 2009, the applicant stated that he and a small group of people were invited to the Bangladeshi embassy in Kuwait to discuss with the Bangladeshi foreign minister the problems faced by Bangladeshi workers in Kuwait.

3. The Tribunal recorded that it put that information to the applicant pursuant to s 424AA and stated that it found it unlikely that he would have been invited to a meeting with the Foreign Minister if he was of adverse interest to the Bangladeshi government and they wanted to detain him. The Tribunal also noted that that information is not consistent with the evidence that the applicant gave the Tribunal, and these issues raise concerns in relation to the applicant’s credibility of his claims, and the Tribunal noted that the applicant declined to respond.

4. The Tribunal, in its reasons, made a further reference to the applicant having made a request for ministerial intervention on 2 December 2009, and that, in that, he stated he was warned not to return to Bangladesh as he had been blacklisted as a criminal. The Tribunal noted the applicant claimed that he was too scared to return to Bangladesh. The Tribunal then made a further reference to the applicant writing to the Minister on 20 August 2013 and that, in that letter, he claimed that his name was on a list of wanted people at the Dhaka Airport.

5. The Tribunal noted that the applicant was able to renew his passport twice on 17 February 2009 and on 3 March 2014. The Tribunal observed this tends to indicate that the applicant had no problems approaching the Bangladeshi government to renew his passport, and that the Bangladeshi government had no problems renewing his passport. The Tribunal observed this tends to indicate that the applicant is not of adverse interest to the Bangladeshi government and raises concerns in relation to the credibility of the applicant’s claims. The Tribunal observed that it put this information to the applicant, pursuant to s 424AA, and that the applicant declined to respond.

6. The Tribunal also referred to the delay in the applicant lodging both applications for protection, raising concerns in respect of his credibility, and that when this issue was raised with the applicant, he declined to respond.

7. Having considered all the applicant’s claims and evidence, including the country information, the Tribunal was of the view that the applicant is not a witness of truth and that the applicant fabricated his claims for the purpose of obtaining a protection visa. The Tribunal found the applicant is not a credible witness.

Factual findings

1. The Tribunal did not accept the applicant was a supporter of or a member of the Awami League when he was living in Bangladesh. The Tribunal did not accept any of the applicant’s claims that flow from that, including that he was attacked with a knife whilst in a procession and injured, or that he was kidnapped, injured and held captive for two days, or that he was arrested by police following a false complaint from BNP leaders and detained for seven days without charges being laid against him.

2. The Tribunal did not accept that the applicant was involved in establishing the Awami Jubo League (“JL”) in Kuwait or that he held any position on the committee of the Awami JL in Kuwait. The Tribunal did not accept that the applicant became a supporter or member of the Awami JL in Kuwait. The Tribunal did not accept a letter purportedly from the Awami JL as being authentic.

3. The Tribunal did not accept the applicant participated in protests in support of Bangladeshi workers in Kuwait. The Tribunal did not accept the applicant was involved in organising or leading protests in Kuwait. The Tribunal did not accept that the Kuwaiti government blacklisted the applicant because he was a JL leader and involved in protests or that the Kuwaiti government wants to punish him. The Tribunal did not accept the applicant had to flee Kuwait to Australia to save his life. The Tribunal did not accept the applicant is of adverse interest to the Kuwaiti authorities.

4. The Tribunal did not accept the Bangladeshi government blacklisted the applicant because he was a JL leader and involved in the protests in Kuwait or that the Bangladesh government wants to punish him. The Tribunal did not accept the applicant was advised by Bangladeshi friends, leaders and family not to return to Bangladesh or his life would be in danger and he would be arrested at the Dhaka Airport. The Tribunal did not accept the applicant’s name was on a wanted list in Bangladesh. The Tribunal did not accept that there is a real risk that the applicant would be arrested and the Bangladeshi Police would detain or torture him because of his involvement in the protest in Kuwait. The Tribunal did not accept the applicant’s life would be in danger at the hands of Bangladeshi Police or that he would be inhumanely tortured to find out who instigated the protest in Kuwait.

5. The Tribunal did not accept that the applicant has any involvement with the Awami League in Australia, including participation and demonstration against Jamaat and in support of the Awami League. The Tribunal did not accept that if the applicant returns to Bangladesh, he would be targeted by Jamaat and Islamic extremists for engaging in activities against them. The Tribunal did not accept that the applicant would be targeted by members or supporters of the BNP or Jamaat or Islamic extremists because of his actual or implied political opinion or because he is returning from overseas. The Tribunal did not accept that there is a real risk the applicant will face significant harm including torture, inhumane, cruel or degrading treatment due to his actual or implied political opinion. The Tribunal did not accept that there is a real risk that the applicant would be unable to get adequate medical services if he returns to Bangladesh because of his actual or implied political opinion.

6. The Tribunal noted the applicant had been employed in Bangladesh for an extended period in the past and has since acquired considerable work experience in different jobs. The Tribunal is not satisfied the applicant would be unable to find employment in Bangladesh or that he would be unable to subsist or survive in Bangladesh. The Tribunal found that the risk of harm due to inadequate health care services in Bangladesh is one faced by the population of the Bangladesh generally and not faced by the applicant personally. The Tribunal was not satisfied there is a real risk the applicant would suffer significant harm for any of the reasons claimed if he returns to Bangladesh now or in the reasonably foreseeable future.

Complementary protection finding

1. Having considered the applicant’s claims individually and cumulatively, the Tribunal was not satisfied the applicant will be arbitrarily deprived of his life, the death penalty will be carried out on him, he will be subject to cruel or inhumane treatment or punishment, or that he will be subjected to degrading treatment or punishment if he returns to Bangladesh now or in the reasonably foreseeable future.

2. The Tribunal was not satisfied there are 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 as defined in s 36(2A) of the Act. The Tribunal found the applicant failed to meet the criteria under s 36(2)(aa) of the Act and affirmed the decision under review.

Proceedings before this Court

Grounds in the application

1. The grounds in the amended application are as follows:

   1. The Tribunal failed to afford the Applicant procedural fairness.

   Particulars

   The Tribunal was given a document purporting to be a certificate made under s 438 of the Migration Act 1958 in relation to certain documents.

   Regardless of the validity of the certificate, procedural fairness required the Tribunal to do the following:

   (a) disclose the existence of the certificate to the Applicant;

   (b) give the applicant an opportunity to make submissions on the validity of the certificate;

   (c) disclose at least whether the information covered by the certificate was favourable, unfavourable or neutral to the applicant, and the extent to which the Tribunal was going to take into account that information; and

   (d) give the applicant an opportunity to seek a favourable exercise of the Tribunal's discretion under s 438(3)(b).

   The Tribunal failed to do any of the above.

   2. If the certificate referred to above was invalid, then the Court is entitled to infer that the Tribunal had regard to it in some way and thus fell into jurisdictional error by failing to:

   (a) treat the documents as being subject to all of the elements of the exhaustive statement of the natural justice hearing rule;

   (b) determine whether the documents contained information that should be disclosed to the Applicant under ss 424A or 424AA;

   (c) determine whether the documents supported the Applicant's case and so should be disclosed to enable the Applicant to properly present his case as required by s 425.

Request for reservation

1. Mr Jones drew the Court’s attention to the fact that there had been decisions recently argued in the Full Court of the Federal Court of Australia concerning s 438 and invited the Court to reserve its decision. The Court sought to clarify whether Mr Jones was seeking an adjournment, and Mr Jones indicated he was not. The existence of other proceedings involving s 438 certificates does not give rise to a reason why this Court should not determine the matter presently before it. In light of the fact no adjournment application was made, the Court is of the view that there is no reason why the matter should not be dealt with in the ordinary way. It is entirely a matter for the Court whether it seeks to reserve a decision. This is not a matter in which the Court considers there is any need to reserve the Court’s decision.

Certificate material

1. Mr Jones objected to the tender of the material the subject of the certificate. The Court allowed the tender of the material the subject of the certificate on the basis of being relevant to the issue of whether or not there was any practical injustice to the applicant during the review. This Court receives material regularly in relation to both applicants and respondents in determining whether or not there has been any practical injustice in particular circumstances. The material the subject of the certificate was clearly relevant and admissible, and it was for these reasons the Court admitted the same.

2. The material the subject of the certificates was the ministerial intervention communications by the applicant to the Department and the evaluation and response thereto. Nothing in that material meets the criteria of being credible, relevant, and significant. Moreover, in the circumstances of the present case, it is apparent that there was sufficient disclosure of the existence of the ministerial intervention material in the possession of the Tribunal member by reason of which the applicant was not denied procedural fairness in the conduct of the review.

3. No practical injustice was occasioned by reason of the non-disclosure of the certificate or the material the subject of the certificate in the present case. Further, there was sufficient disclosure in the course of the hearing that the Tribunal had the ministerial intervention material by reason of which the applicant had a reasonable and fair opportunity to deal with the same. The Court is satisfied that the applicant had a real and meaningful hearing and that the Tribunal complied with its obligations under s 425 of the Act.

4. Mr Jones sought to argue that the mere fact that there was a certificate issued that was not disclosed meant that there was a denial of procedural fairness by reason of which relief should be granted. Mr Jones also sought to argue that the material in the ministerial intervention requests could be said to be relevant because it refers to the applicant’s claims. Mr Jones contended that the relevant issue in relation to whether there is a denial of procedural fairness as a consequence of the non-disclosure of the certificate turned on the issue of relevance and not whether or not the material could be said to be credible, relevant, and significant.

1. The credible, relevant, and significant test has been identified by the High Court on more than one occasion in respect of material that is not disclosed in determining whether or not there has been a denial of procedural fairness in the process of the review. In the present case, the Court is not satisfied that the ministerial intervention material can be said to be credible, relevant and significant in relation to the review of the applicant’s claims.

2. The applicant also submitted that there had been a failure to comply with s 424A. When invited by the Court to identify information enlivening any such obligation, Mr Jones, solicitor for the applicant, indicated that was a matter for the Tribunal. No information was identified by the applicant enlivening any obligation under s 424A.

3. The Court does not accept that there is any information in the material the subject of the certificate that could be said to negate, undermine or reject the applicant’s claims. No information was identified enlivening any such obligation under s 424A. To the extent that the Tribunal identified information from the ministerial intervention material that was written by the applicant, no submission was put that there was any failure to comply with the requirements of s 424AA so far as that information enlivened such an obligation. I do not accept that the information did enliven any such obligation but for the reasons already given, the Tribunal complied with the requirements of s 424AA in that regard.

4. Mr Jones argued that there was material in relation to the evaluation of the application for ministerial intervention. That evaluation does not give rise to any undermining, rejecting or denial of the applicant’s claims so as to enliven an obligation under s 424A. No breach of s 424A of the Act is made out. Further, for the reasons given above, this is a case where there was sufficient disclosure of the material the subject of the certificate, by reason of which the applicant had a real and meaningful hearing. No jurisdictional error as alleged in the amended application is made out.

5. Further, this is a case where the Court is satisfied that the material the subject of the certificate could not possibly have affected the outcome or conduct of the review. The Court finds that there is no practical injustice by reason of the failure to disclose the certificate or the documents the subject of the certificate. If any relevant error was made by the failure to disclose the certificate and the documents that are subject of the certificate, this is a case where the Court is satisfied that the non-disclosure could not possibly have impacted on the outcome of the review and that relief should be refused on discretionary grounds.

Conclusion

1. For the above reasons, the amended application is dismissed.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:

Date:  15 November 2017