ALJ16 v Minister for Immigration
[2017] FCCA 2190
•31 August 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ALJ16 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 2190 |
| Catchwords: MIGRATION – Application to review decision of Administrative Appeals Tribunal – whether Tribunal failed to take relevant considerations into account – whether Tribunal applied the correct test – 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 Minister for Immigration and Border Protection v CZBP [2014] FCAFC 105 SZVAPv Minister for Immigration and Border Protection (2015) 233 FCR 451; [2015] FCA 1089 | ||
| Applicant: | ALJ16 | |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 444 of 2016 |
| Judgment of: | Judge Barnes |
| Hearing date: | 31 August 2017 |
| Delivered at: | Sydney |
| Delivered on: | 31 August 2017 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the First Respondent: | Ms Doyle |
| Solicitors for the First Respondent: | Sparke Helmore |
ORDERS
The application is dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $5,800.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 444 of 2016
| ALJ16 |
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 5 February 2016. The Tribunal affirmed a decision of a delegate of the First Respondent not to grant the Applicant a protection visa.
The Applicant, a citizen of Bangladesh, arrived in Australia in 2013 and applied for protection in September 2013. In support of his protection visa application, he claimed to fear harm on the basis that he supported the Bangladesh National Party (the BNP), encouraged people to vote in elections and participated in a demonstration before an election. He claimed he was targeted for money by criminals he believed were Awami League supporters and that he feared he would be seriously harmed or killed by these criminals because he did not pay them.
The application was refused and the Applicant sought review by the Tribunal. He was invited to and attended a Tribunal hearing. The only evidence before the Court of what occurred in the Tribunal hearing is the material in the Courtbook, in particular the Tribunal’s account in its reason for decision.
The Applicant had the assistance of a solicitor/migration agent who provided written submissions to the Tribunal, attended the Tribunal hearing and provided some supporting documentation, to which I will return.
In its reasons for decision the Tribunal summarised the Applicant’s claims that he supported the BNP and that for doing so, members of the opposing ruling party (the Awami League) demanded money from him, but that he refused their demand and feared they would harm him for that reason if he returned to Bangladesh.
The Tribunal found, for detailed reasons, that the Applicant was not a witness of truth and that the account of events on which he based his claim for protection was false.
It referred, over a number of paragraphs, to its concerns about “demeanour”, although this encompassed concerns about the inadequate nature of the Applicant’s evidence and responses to Tribunal questions. In finding the Applicant to be a most unimpressive witness, the Tribunal had regard to the fact that his responses to questions at the hearing could only be characterised as “demonstrably vague, indirect and evasive”.
It gave several examples, including the fact that the Applicant had failed to state, with at least some precision, the period of time over which he had been supporting the BNP. It described his evidence in this respect, his claimed lack of recollection and his general responses. The Tribunal found that despite the opportunities that the Applicant was given to state how long he had been supporting the BNP, his evidence was unsatisfactory and unconvincing and that he had failed to give a proper account of a fundamental aspect of his protection claims, being the period of time he supported the BNP.
The Tribunal found that this “vagueness and evasiveness” extended to the Applicant’s evidence about elections in Bangladesh and which party was in power when he lived there. It had regard to the lack of a direct response to its questions about whether the Applicant’s claims were that he was involved in only one election or more and to the contrast between his evidence and country information as to when the Awami League and the BNP were in power. It referred in that context to the fact that the Applicant initially claimed that the Awami League came into power in January 2014, but subsequently agreed that it had been before then, but indicated that he did not know when. The Tribunal also found that the Applicant’s evidence about when his party, the BNP, was last in power was “vague and indirect”. It recorded that, after referring to some other matters, he said that the BNP was last elected into government in 1977 or 1978. When it was put to him that according to country information the BNP was in power from 2001 to 2006 and that there was then a caretaker government until 2008 when the Awami League came into power, the Applicant said the dates put to him by the Tribunal were correct, but that he just could not tell the Tribunal those things when questioned. He claimed he just could not remember them.
The Tribunal made allowance for the fact that the Applicant said he had completed only three years of school education and that the BNP came into power when he was very young. However it also had regard to his claims to have supported the BNP for a number of years. It found that his low level of education was not a reason for failing to give even a rudimentary timeline as to which party was in power while he lived in Bangladesh. It was of the view that the Applicant was demonstrably vague and his responses indirect and evasive to conceal his ignorance of these fundamental matters and his overall untruthfulness.
The Tribunal considered the representative’s submission at the hearing that the Applicant had given her a correct account of a timeline as to when parties were in power, but found that whether this was or was not so, it was inconceivable that the Applicant would be so vague to the Tribunal about these events.
The Tribunal also had regard to the unsatisfactory nature of the Applicant’s evidence about difficulties he experienced for supporting the BNP. In particular, it found there was vagueness and a lack of clarity as to whether the Applicant claimed that he had been approached by people with weapons on one occasion or a number of times and when this occurred (as it described). The Tribunal found that the Applicant had been evasive when asked if there were other occasions on which he had been harmed by the Awami League, apart from the claimed approach which he thought may have happened in 2013 when he was asked for money. It recorded that the Applicant said there were many occasions, but when asked to tell the Tribunal about them, said they were harming others, not just him. When asked if the Awami League attacked meetings or processions held by the party at which he was present, he said it happened all the time, but then said that such attacks did not occur at any meetings or processions at which he was present. The Tribunal found the Applicant’s explanation most unsatisfactory. It observed that on the one hand he had tried to claim his party’s meetings and processions were attacked all of the time everywhere but on the other hand tried to claim that meetings and processions at which he was present were never attacked.
The Tribunal also found it highly improbable that the one claimed confrontation (where there was said to be a demand for money by people who took out sticks to attack the Applicant) did not take place until close to the time the Applicant left Bangladesh in 2013, given that he also claimed to have been supporting the BNP for a number of years by that time and that there had been ongoing conflict between the parties involving fighting in his native village. The Tribunal found the Applicant’s evidence in this respect to be highly improbable and also mobile and unconvincing.
The Tribunal had regard to a letter produced by the Applicant from the Convenor of the BNP in Australia. It stated that the Applicant would be subject to a false case (which had been filed during the rule of the Awami League from 1996 to 2001) if he returned to Bangladesh. However the Applicant’s oral evidence was that no false case was ever filed against him when he lived in Bangladesh. When asked about this inconsistency, the Applicant suggested that the Convenor of the BNP had made a mistake. This claim was supported by his representative, who suggested that possibly the Convenor did not check the facts correctly.
However the Tribunal was of the view that the claimed false case was a very serious claim and if no such case had been taken out, the fact that it was put forward in the Convenor’s letter detracted from the overall weight that could be given to that letter.
As requested, the representative was granted two weeks to make further submissions on this issue. The Tribunal had regard to a further letter from the Convenor, who stated that the reference to a false case against the Applicant was a mistake and that he knew another activist with the same name as the Applicant who did have a false case taken out against him between 1996 and 2001.
The Tribunal was of the view that even if that was so, the fact that a false case was mistakenly mentioned with respect to the Applicant detracted from the weight that could be given to the claims in the Convenor’s letters.
The Tribunal also had regard to a letter from an office holder of the BNP in the Applicant’s local area in Bangladesh. It stated that the Applicant had actively supported the party and for that reason “often had confrontation[s] with opposition party and their leaders”. The Tribunal recorded that it had put to the Applicant at the hearing that this claim was inconsistent with his oral evidence that the only time he encountered harm from the Awami League was the one occasion when they confronted him in the street and demanded money just before he left Bangladesh. The Tribunal considered the Applicant’s explanation, but found that he had not accounted for the discrepancy between his evidence that there was one confrontation and the claim in the letter that there were often confrontations.
The Tribunal also had regard to the Applicant’s evidence about participating in demonstrations or processions for the BNP, including his oral claim that he participated in processions that could have occurred as often as once a month and that he undertook activities for the BNP over a period of four, five or maybe more years. The Tribunal understood this to be evidence that the Applicant had participated in a number of demonstrations or processions. It put to the Applicant that this was inconsistent with his written statement in which he claimed that he participated in a demonstration on one occasion before an election and did not mention any participation in other demonstrations or processions. The Tribunal considered the Applicant’s explanation that he was in the BNP everywhere and did everything with the party and the fact that when it repeated its question, the Applicant did not respond, in any meaningful sense. The Tribunal found the Applicant’s evidence on this matter was inconsistent and that he had not provided a satisfactory explanation.
The Tribunal considered the representative’s submission that the reference in the written statement to just one demonstration was “odd” and that the person who had prepared the statement had told her that this reference was incorrect. The Tribunal found that this submission did not overcome its concern about the inconsistency.
The Tribunal concluded that, considered cumulatively, the concerns it held about the Applicant’s credibility led it to find that he was not a witness of truth and that the account of events on which his protection claims were based was false. It disbelieved his claims that he or any member of his family supported, undertook activities or voted for the BNP. It therefore disbelieved his claims about the Awami League approaching him on the road, threatening him and demanding a sum of money and his written claims about conflict in his village between the parties and Hindu and Muslim residents.
The Tribunal stated that in making these findings it had taken into account material provided by the representative in submissions of 17 January 2016, but that this did not overcome its concerns. It also took into account the contents of the letters from the BNP in Bangladesh and Australia, including the letter submitted after the hearing, but found that the contents of these documents did not overcome its concerns and, as it had discussed, that at least one of these letters was actually inconsistent with the Applicant’s evidence. The Tribunal found that the assertions in these documents about the Applicant’s life in Bangladesh were false and did not give weight to them. This included not giving weight to the assertions made by the Convenor of the party in Australia about the Applicant participating in party activities here. The Tribunal concluded that it had no credible evidence about the Applicant’s involvement with the BNP in Australia. It disbelieved his claims in that respect.
The Tribunal found that an article submitted about the BNP commemorating the anniversary of the death of a party leader did not demonstrate that the Applicant had been involved with the BNP as claimed. It found that the very basic and rudimentary knowledge of the BNP displayed by the Applicant at the hearing did not persuade it that he was involved with the BNP in Bangladesh or amount to credible evidence of his involvement with the party in Australia.
The Tribunal concluded that there was no credible evidence that the Applicant had suffered harm in Bangladesh, that anyone there sought to harm him, as to why he left, or why he did not want to return. It acknowledged that, at the hearing, when asked what he feared in Bangladesh, the Applicant said the Awami League would know he had been in Australia and would harm him thinking he would have money, but had regard to the fact that he also said they would do this, in essence, because of what he claimed they did to him in Bangladesh. The Tribunal reiterated that those claims were disbelieved and that it did not accept that the Awami League held or had ever held any interest in the Applicant, including because he had been in Australia.
The Tribunal considered the representative’s submissions about the risk of the Applicant suffering harm because of political violence in Bangladesh for which the authorities do not provide adequate protection and country information in that respect. Insofar as the representative purported to claim that civilians were the victims of such violence, the Tribunal found it clear from the country information she had provided that the victims were those who were involved with political parties. It put this understanding to the Applicant at the hearing and recorded that in response he more or less agreed, saying that he had been harmed by the Awami League because he had been with the BNP.
The Tribunal also considered claims about the Awami League being involved in extortion for which the police took no action. It found there was no credible evidence that this ever happened to the Applicant in Bangladesh. As his claims about involvement with the BNP were disbelieved, it rejected the argument that the Awami League would extort money from the Applicant.
Overall, the Tribunal found the risk of the Applicant, as a civilian, suffering serious harm at the hands of the Awami League or any other political party in Bangladesh, including in political violence, to be remote.
The Tribunal noted that the Applicant claimed to have departed Bangladesh illegally, but did not claim he would suffer harm on that ground. In any event, because it had found he was not a witness of truth, the Tribunal found it had no credible evidence as to the manner in which the Applicant left Bangladesh.
For all the reasons given, the Tribunal found that the risk of the Applicant suffering serious harm in Bangladesh on any ground was remote. It found that he did not have a well-founded fear of persecution based on a Convention ground.
Under the heading “Complementary Protection”, the Tribunal found (at paragraph 33):
With respect to the complementary protection criterion, the Tribunal repeats its finding that the applicant is not a witness of truth and the account of the events which (sic) his protection claims are based is false. There is no credible evidence that the applicant suffered harm in Bangladesh and no credible evidence that anyone in Bangladesh seeks to harm him. There is no credible evidence as to why the applicant left Bangladesh and no credible evidence as to why he does not want to return there. The Tribunal has given reasons above as to why it finds that the risk of the applicant suffering serious harm in Bangladesh is remote. For those same reasons the Tribunal also finds that the risk of the applicant suffering significant harm in Bangladesh is remote. Accordingly, there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal from Australia to the receiving country, Bangladesh, there is a real risk that he will suffer significant harm.
The Tribunal affirmed the delegate’s decision.
The Applicant sought review by application filed in this court on 1 March 2016. Before turning to the grounds in the application, I note that the application was supported by written submissions filed in November 2016, which the Applicant explained someone had prepared for him. Insofar as these submissions suggested that there was a “mandatory” requirement that the Applicant file an amended application by a scheduled date, the Applicant was given leave to do so, but there was no mandatory requirement for an amended application. In any event, to the extent that the Applicant’s oral and written submissions can be understood to raise issues or grounds beyond those raised in the application, they were considered in the Minister’s submissions and will be considered by me.
An issue was also raised in the written submissions about whether there was an “arguable” case and whether there ought to be a final hearing. However on the first return date of 14 April 2016 a show cause hearing was dispensed with. This matter was never listed for a show cause hearing and the hearing today was, as had been noted in the orders of 2 December 2016, a final hearing.
Before turning to the grounds in the application and the written submissions, I asked the Applicant about his concerns with the Tribunal decision and procedures. He indicated that he had nothing much to add to the written submissions as a self-represented litigant. However he also took general issue with what he described as the Tribunal stating that he was “unresponsive” and with the fact that it did not believe him. He also complained that he did not meet the complementary protection criterion because his evidence was not considered credible. The Applicant claimed that things happened to him and not to the Tribunal, so how could it say that he was lying. He agreed that he took issue with the fact that the Tribunal did not find him a credible witness.
These concerns do not establish jurisdictional error. First, insofar as the Applicant seeks merits review, merits review is not available in this court.
The Tribunal’s reliance on adverse credibility findings was raised in the Applicant’s written submissions and in his grounds of review. In that respect, I have borne in mind the approach taken by the Full Court of the Federal Court in CQG15 v Minister for Immigration and Border Protection (2016) 70 AAR 413; [2016] FCAFC 146. In particular, as their Honours pointed out, and as had earlier been pointed out by Flick J in SZVAPv Minister for Immigration and Border Protection (2015) 233 FCR 451; [2015] FCA 1089, credibility findings are amenable to judicial review (see, in particular, CQG15 at [37] to [38] in relation to some of the bases on which credibility findings are amenable to judicial review). However, in this case, for reasons that follow, it has not been established that any challenge to the Tribunal’s credibility findings is made out.
In particular, it has not been established that there was any failure to afford the Applicant procedural fairness; that there was no logical or probative basis for the Tribunal’s credibility findings; or that there was otherwise illogicality and/or irrationality or unreasonableness such as to amount to jurisdictional error. The Tribunal’s credibility findings were reasonably open to it on the material before it for the reasons it gave.
Ground 1 in the application is that the Tribunal acted without jurisdiction or in excess of jurisdiction when it failed to take into account relevant considerations. The particulars do not identify any relevant consideration which the Tribunal failed to take into account. However it appears from the written submissions that this may be intended to be a contention that the Tribunal failed to take into account an integer of the Applicant’s claims to fear harm in Bangladesh based on his actual or imputed political opinion in favour of the BNP and against the Awami League and having regard to his claims about his involvement with and support for the BNP.
Such a claim is not made out. On the contrary, it is apparent from the material before the Court that the Tribunal understood and considered the Applicant’s claims, although it found inconsistencies and inadequacies in his account of what happened to him in the past. As set out above, it addressed his claims in the context of considering his credibility, including not only his claims based on his claimed support for and involvement with the BNP in Bangladesh, but also his claims about past harm occasioned to him by supporters of the Awami League and threats about the future and his claims to fear harm having regard to his claimed involvement with the BNP in Australia. In addition, the Tribunal considered more general claims about the risk of the Applicant suffering harm because of political violence in Bangladesh for which the authorities do not provide adequate protection or suffering serious harm as a civilian at the hands of any political party in Bangladesh. In addition, it considered his claims to have departed Bangladesh illegally. It has not been established that the Tribunal failed to have regard to any integer of the Applicant’s claims.
Nor, for that matter, has it been established that the Tribunal failed to take into account any evidence in a manner constituting jurisdictional error (see Minister for Immigration and Border Protection v SZSRS (2014) 309 ALR 67; [2014] FCAFC 16). It had regard to the documentary evidence submitted in support of the Applicant’s case, including not only country information as discussed above, but also the two pre-hearing letters and one post-hearing letter of support provided from persons associated with the BNP and a letter about commemorating the anniversary of the death of a party leader.
In the circumstances of this case and having regard to the issues in relation to the letters from the BNP Convenor about the false case and the inconsistency between the Applicant’s oral evidence and the claims in the letter from Bangladesh, it was reasonably open to the Tribunal not to give weight to the assertions therein. The findings in relation to the independent country information and the fact that the article about BNP activities did not persuade the Tribunal that the Applicant was involved with the BNP were also reasonably open to it on the material before it for the reasons which it gave. I note that the weight to be accorded to items of evidence is a matter for the Tribunal (Minister for Immigration and Citizenship v SZNPG (2010) 115 ALD 303; [2010] FCAFC 51).
In other words, the Tribunal considered the genuineness of purported corroborative material and, if it found the material genuine, considered why it did not support the Applicant’s claim (see Minister for Immigration and Border Protection v CZBP [2014] FCAFC 105). No jurisdictional error is established in that respect.
The particulars to ground 1 assert that the Tribunal “unreasonably raised doubt over the applicant’s political activities and his the (sic) membership of the BNP”.
It is not entirely clear on the face of the particulars and the submissions whether this aspect of the Applicant’s concern is with the findings of the Tribunal or with the conduct of the Tribunal hearing. In relation to the hearing the particulars go on to complain that the Tribunal misunderstood the Applicant’s case, asked “designed questions” to disguise or confuse the Applicant’s activities within the BNP and that it repeated questions regarding the Applicant’s involvement with the BNP in a manner that was said to be a denial of procedural fairness.
The Applicant also stated in oral submissions today that he did not understand half the things the Tribunal was saying. He claimed that he never said that the last time the BNP was in power was in 1977 or 1978, but rather said it was established then and that this was misinterpreted at the Tribunal hearing.
There is no evidentiary basis for the Applicant’s claims about the conduct of the hearing. The only evidence before the Court of what occurred in the Tribunal hearing is the Tribunal’s account in its reasons for decision. Despite being given the opportunity to file a transcript of the Tribunal hearing, the Applicant did not do so. I also note that the Applicant’s lack of knowledge about when the BNP was last in power was by no means the only reason for the Tribunal’s adverse credibility finding.
The particulars to ground 1 raise issues which could be taken to assert either actual or apprehended bias, in that it is suggested that the Tribunal’s questions were designed to disguise or confuse the Applicant’s activities, that its repetition made him nervous and that it asked unreasonable and irrelevant questions and repeated the same type of question to discredit his evidence. It was suggested in written submissions that the Tribunal formed its opinion before completion of the full hearing. I take this to be a suggestion of predetermination. The submissions also suggest that the Tribunal was expecting the Applicant to say something about the period he supported the BNP, but that its questioning was more like a police interview and that the hearing was not conducted freely and fairly.
An allegation of actual bias is a serious allegation and should be supported by proper evidence. It should be distinctly made and clearly proved (see Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 per Gleeson CJ and Gummow J at [69]). The evidence before the Court in this case does not establish prejudgment in the sense that the Tribunal was so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented. It is a rare and exceptional case in which actual bias can be demonstrated solely from the published reasons for decision (see SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 per Von Doussa J at [38]). Actual bias is not made out.
Nor is apprehended bias made out in the sense discussed in Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425; [2001] HCA 28 considered from the perspective of the hypothetical fair-minded lay person properly informed as to the nature of the proceedings, the matters in issue and the conduct said to give rise to an apprehension of bias. There is no evidentiary basis for contentions of actual or apprehended bias.
Insofar as the Applicant’s complaints may be seen to take issue with the fact that the Tribunal continued to ask questions on particular issues, as indeed emerges from its reasons for decision, this concern is not such as to establish an apprehension of bias. As remarked by Buchanan J in SZJBD v Minister for Immigration and Citizenship (2009) 179 FCR 109; [2009] FCAFC 106, even highly specific and arguably onerous questioning may not sustain a conclusion of a reasonable apprehension of bias. The critical issue is what use is made of the responses. In this case the material before the Court is not such as to support or establish an apprehension of bias.
Nor, more generally, is there any evidence to establish or, indeed, to raise any concern as to a lack of procedural fairness in the conduct of the Tribunal hearing. In particular, there is no evidence before the Court to establish inadequate interpretation such as to amount to a failure to afford the hearing required by s.425 of the Migration Act 1958 (Cth) (the Act) or that is otherwise such as to demonstrate a lack of procedural fairness.
The Applicant claimed he was nervous and that the Tribunal conducted the hearing without knowing his mental condition. If this is intended to raise a claim that he was unfit to participate in the Tribunal hearing, there is no evidence to support such a claim. Not only is there no evidence of such a concern being raised with the Tribunal but, more pertinently, there is no evidence before the Court in that respect other than the assertions made in submissions which are not supported by any evidence as to the Applicant’s mental condition.
Insofar as the written submissions make a broader challenge in relation to the Tribunal’s credibility findings, as indicated, I recognise that credibility findings are not immune from challenge. However, in this case the credibility findings were reasonably open to the Tribunal on the material before it for the reasons which it gave. Insofar as the credibility assessment involved an assessment of the Applicant’s demeanour, in fact, as explained above, the Tribunal’s findings were not based simply on the Applicant’s demeanour. This is not a case in which there was no probative evidence to support the Tribunal’s findings or one in which the Tribunal’s findings lacked a logical connection with the evidence before it. Nor, more generally, can it be said that the Tribunal findings or its ultimate decision was legally unreasonable (see Minister for Immigration and Border Protectionv Singh (2014) 231 FCR 437; [2014] FCAFC 1). There was an evident and intelligible justification for the Tribunal decision. This is not a case in which it can be said that no reasonable decision-maker could have reached the decision that the Tribunal reached. No jurisdictional error is established on this basis, having regard to the Tribunal’s reasons.
More generally, the Applicant claimed that the Tribunal made a jurisdictional error when it failed to understand the difficulties and circumstances of a non-legal person appearing before a court or a Tribunal. This appears to overlap with the Applicant’s claims about his nervous condition. It is not indicative of jurisdictional error on the material before the Court. The Applicant was invited to a Tribunal hearing to give evidence and present arguments. He attended the hearing with the assistance of his solicitor, who was his migration agent. There is nothing in the material before the Court to suggest that he was not afforded a real and meaningful opportunity to participate in the hearing (see Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553; [2003] FCAFC 126, Minister for Immigration and Citizenship v SZNVW (2010) 183 FCR 575; [2010] FCAFC 41, Minister for Immigration and Citizenship v SZNCR [2011] FCA 369, Minister for Immigration and Citizenship v SZOVP (No 2) [2011] FMCA 442, SZLLY v Minister for Immigration and Citizenship (2009) 107 ALD 352; [2009] FCA 185 and Minister for Immigration and Multicultural Affairs v SZFDE (2006) 154 FCR 365; [2006] FCAFC 142).
Ground 1, both as pleaded and taken at its broadest and having regard to the elaboration and extension in the Applicant’s submissions is not made out.
Ground 2 is that the Tribunal failed to apply the correct test in relation to the complementary protection criterion contained in s.36(2)(aa) of the Act. It is also claimed that the Tribunal made a jurisdictional error when it “did not follow Rules of Real Risk Test of persecution and harm”.
However, the particulars to this ground assert that the Applicant had a legitimate expectation that the Tribunal would assess his claim according to procedural fairness; reiterate his claim to fear harm in Bangladesh; claim that the Tribunal ignored a relevant consideration related to complementary protection; and claim that the harm or mistreatment feared was for one or more of the Refugees Convention grounds. This would appear to involve a misunderstanding of the complementary protection ground, which is not limited to harm feared for a Convention reason.
In any event, no jurisdictional error is apparent in the Tribunal’s consideration of the complementary protection criterion. The Tribunal correctly set out the test for complementary protection in its reasons. Its finding in that respect is set out above. It was brief, but it was open to the Tribunal in the circumstances of this case and having regard to the findings it had made (that the Applicant was not a witness of truth and that his account of events on which his claims were based was false) to proceed in the manner that it did. In particular, the Tribunal was entitled to rely on its anterior findings in determining the risk of significant harm (see SZSGA v Minister for Immigration and Citizenship [2013] FCA 774 and SZSHK v Minister for Immigration and Border Protection (2013) 138 ALD 26; [2013] FCAFC 125).
As indicated, the suggestion of error in applying both the Refugees Convention and complementary protection criteria is not entirely clear. Insofar as it appears to be contended in submissions that the test of “fear of persecution” applies whether the Applicant has had a low profile or high profile, the Tribunal did not find that the Applicant had a low profile or a high profile as a political activist. Rather, it found that his claims about involvement with the BNP were false in their entirety. As indicated, it also went on to consider the risk of the Applicant suffering harm from the Awami League or, indeed, any other political party, as a civilian in Bangladesh.
Ground 2 as pleaded and as elaborated on in submissions does not reveal jurisdictional error on the part of the Tribunal.
As no ground relied on by the Applicant has been established, the application must be dismissed.
The Applicant has been unsuccessful. The Minister seeks costs in the sum of $5,800 which is less than the amount provided for in the Schedule to the Federal Circuit Court Rules 2001. The Applicant stated that he could not pay costs; he had no money. However, the Applicant’s lack of funds is not a reason for departing from the normal principle that an unsuccessful applicant should meet the costs of the successful respondent, although it may be a matter to be taken into account by the Minister in determining when and how to seek to recover such costs. The amount sought is reasonable and appropriate in light of the nature of this and other similar matters.
I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of Judge Barnes
Associate:
Date: 11 September 2017
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