ALS16 v Minister for Immigration
[2018] FCCA 345
•19 February 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ALS16 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 345 |
| Catchwords: MIGRATION – Application for review of Administrative Appeals Tribunal decision – whether the Tribunal complied with s.424A of the Act – whether the Tribunal complied with s.425 of the Act – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.424A, 425, 476 |
| Cases cited: SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 81 ALJR 1190 SZMFZ v Minister for Immigration and Citizenship [2008] FCA 1890 |
| Applicant: | ALS16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 472 of 2016 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 5 February 2018 |
| Date of Last Submission: | 5 February 2018 |
| Delivered at: | Sydney |
| Delivered on: | 19 February 2018 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Respondents: | Mr K Eskerie of Sparke Helmore Lawyers |
ORDERS
The application made on 3 March 2016 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $4800.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 472 of 2016
| ALS16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 3 March 2016 seeking review of the decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 5 February 2016 which affirmed the decision of the Minister’s delegate (“the delegate”) to refuse a protection visa to the applicant.
The evidence before the Court is contained in a bundle of relevant documents filed and tendered by the Minister (“the Court Book” – “CB”, “RE1”).
Background
The applicant is a citizen of Bangladesh (CB 13). He made the application for the protection visa which was received by the Minister’s department on 2 September 2013 (CB 1 to CB 54). The applicant included a written statement of his claims to protection in his application (CB 45 to CB 47).
The applicant claimed to fear harm from Muslim fundamentalists on return to Bangladesh on the basis that he had married his wife (a Christian) and then converted to Christianity himself (CB 45 to CB 47). The applicant claimed that prior to their marriage, both he and his wife had agreed to maintain their respective religions (CB 45.6). They married, but the marriage could not be registered as both parties needed to be of the same religion (CB 45.6). Not registering a marriage was claimed by the applicant to be a “criminal act” in Bangladesh (CB 45.6).
Following their marriage, the applicant claimed that “[t]here was pressure from [his] family and the society” to convert his wife to Islam, but that she declined to do so (CB 45.8). He claimed that this made his “family, society and the fundamentalist group” angry and that he was threatened (CB 45.8). In comparison, the applicant claimed that his “wife’s family and her society” did not react in the same way that his family and society did (CB 45.9).
As a result, the applicant claimed that he then converted to Christianity, which made his family, society and the fundamentalists even angrier (CB 46.2). He claimed that the “fundamentalist people went to the mosque and announced that [he was] a threat [to] the society and Muslim religion”, and that he should get “punishment” for his actions (CB 46.3). The applicant claimed that they will “burn [him] or throw acid on [him]” (CB 46.8).
Further, the applicant claimed that he went to the police but that they “did not help [him]” (CB 46.6). After the “announcement” the applicant went into hiding, lost his job as result, and became “depressed” (CB 46.6). He then contacted his uncle who lived in Australia, subsequently obtained a visa, and travelled to Australia (CB 46.7).
The applicant was invited to, and attended, an interview with the delegate on 3 February 2014 (CB 60 to CB 63 and see CB 108.5). The applicant provided further documents to the Minister’s department which were received on 2 January 2014 and 17 March 2014 (CB 64 to CB 70 and CB 71 to CB 99). The delegate refused the grant of the visa on 22 July 2014 (CB 100 to CB 129).
The applicant applied for review to the Tribunal on 5 August 2014 (CB 130 to CB 138). He was assisted by a registered migration agent (CB 134). Ultimately, the applicant attended a rescheduled hearing before the Tribunal on 2 February 2016 (see CB 143 to CB 186). The Tribunal affirmed the delegate’s decision on 5 February 2016 and the applicant was notified by letter dated 8 February 2016 sent to his representative authorised to receive correspondence on his behalf (CB 187 to CB 203 and I note that this was a different representative to the one that assisted the applicant in making his application for review (CB 142)).
The Tribunal had a number of concerns about the applicant’s credibility. These included inconsistencies in the applicant’s evidence regarding the circumstances surrounding when the applicant and his wife decided to marry, and the reasons for doing so some years after they met ([8] at CB 192 to [23] at CB 195). The Tribunal considered that the applicant had not given a “consistent and comprehensible account of the development of his relationship with his wife”, and that this reflected poorly on his credibility ([23] at CB 195).
The Tribunal also had concerns regarding the applicant’s evidence as to instances of harm he suffered in Bangladesh following his marriage to his wife. These included threats to kill the applicant, other attacks on the applicant and evidence about the applicant’s father’s attitude toward his marriage and conversion to Christianity ([24] at CB 195 to [40] at CB 199). The Tribunal noted that the applicant, amongst other things, “could not recall” if he had gone to the police in Bangladesh, and his oral evidence conflicted with his written statement, including the location of the “announcement” by the “fundamentalists” that he was to be killed ([33] – [34] at CB 197).
Taking its concerns cumulatively, the Tribunal held that the applicant was “not a witness of truth” and that his account of events on which his protection claims were based were “false” ([41] at CB 199).
The Tribunal also considered the applicant’s claims “about his mental state” ([42] at CB 199). However, at the hearing, the Tribunal considered the applicant to be “responsive” and had “engaged in giving evidence about his protection claims” ([42] at CB 199 to [44] at CB 199 to CB 200). The Tribunal considered that the inconsistencies in the applicant’s evidence was not due to any medical condition, as they were “fundamental to his protection claims” ([44] at CB 200).
The Tribunal’s concerns about the applicant’s credibility were also not outweighed by oral evidence given by his uncle, or documentary evidence the applicant had provided ([45] at CB 200 to [58] at CB 203). The Tribunal found that the applicant did not meet either criterion for the grant of the protection visa ([59] – [63] at CB 203).
Before the Court
The applicant first appeared before a Registrar of the Court on 14 April 2016 and various orders were made, by consent, including that the applicant be given the opportunity to file any amended application and further evidence by way of affidavit. The applicant did not file further documents in this regard.
The applicant next appeared before a Registrar of the Court on 25 August 2016 and various orders were made, including that the parties file written submissions, as well as an order listing the matter for final hearing before me on 5 February 2018. The Minister filed written submissions on 29 January 2018. The applicant filed written submissions on 2 February 2018 (I note that these were filed outside of the time provided in the Court’s orders. The Minister did not object to the applicant relying on the written submissions and leave was granted).
At the final hearing, the applicant appeared in person with the assistance of an interpreter in the Bengali language. The Minister was represented by a solicitor.
The Application to the Court
The application to the Court is in the following terms:
“1. The Tribunal failed to comply with the requirements of s424A of the Migration Act 1958 in making decision of the applicant’s review application.
Particulars:
i. The Tribunal failed to determine well-founded fear of the applicant that he is likely to face in his reasonably foreseeable future upon return to his country of origin.
ii. The Tribunal relied on any or all of the information in assessing and making decision of the applicant’s application rather than focusing as to why the applicant applied for his protection visa. The tribunal ignored the fact that there was significant risk that the applicant would have suffered upon his return to his country of origin.
iii. The Tribunal made its decision in a conventional way without satisfying the provisions of Migration Act 1958.
iv. The Tribunal hearing and decision contained huge procedural unfairness in deciding the applicant’s review application. The tribunal asked questions to the applicant not related to the refugee’s convention or even beyond the Migration Act definition of refugees. The tribunal conducted cross questioning to the applicant for a duration of approximately 6 hours and some of the questioning was irrelevant to the applicant’s claim for his protection visa application.
v. The tribunal made its findings without any evidence or verification before rejecting the applicant’s protection visa claims in a conventional way which constitutes a
non-compliance of s424A of the Migration Act 1958.
vi. Subsection 424A(1)(b) required the tribunal to ensure, as far as was reasonable practicable that the applicant understood as to why the information and questions were relevant to the review applicant for the purposes of s91R(3) and s36(2)(aa), and the consequences of being relied on in affirming the decision that is under review and the tribunal failed to do so and therefore committed a jurisdictional error.
2. The tribunal failed to comply with the requirements of s425 of the Migration Act 1958 in making decision of the applicant’s review application.
Particulars
The tribunal made its findings without any sound basis or evidence in rejecting the review applicant’s witness and claims of his protection visa application as not credible and such an act of the tribunal constitutes breach of s425 of the Migration Act 1958.”
[Errors in original.]
Consideration
Before the Court, the applicant submitted that he had nothing to add to the grounds of the application and his written submissions. He explained that these had been drafted for him by a “lawyer”. Although he said that he understood “some” of what was written in those documents, he demonstrated no such understanding before the Court.
What is immediately obvious from the grounds of the application, and for that matter, the applicant’s written submissions, is that whoever drafted them for the applicant has no understanding of s.424A or s.425 of the Act.
The applicant’s written submissions are of little value in revealing jurisdictional error in the Tribunal’s decision. On their own, they cannot assist the applicant. At most, the written submissions (and the grounds of the application), appear to seek impermissible merits review. The written submissions largely restate the applicant’s claims to protection, as they were put before the delegate and the Tribunal. They then restate the grounds of the application. The only additions are particular “vii” to ground one (which is in similar terms to particular “vi” to ground one of the application), and some further complaints in relation to ground two.
Ground one asserts a breach of s.424A of the Act. Section 424A obliges the Tribunal to put to an applicant, in writing, “information” that it considers would be the reason, or a part of the reason, for affirming the delegate’s decision (SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 81 ALJR 1190 (“SZBYR”), Minister for Immigration and Citizenship v SZLFX [2009] HCA 31; (2009) 238 CLR 507 and SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24; (2005) 228 CLR 294; (2005) 215 ALR 162).
Sections 424A(1) and 424A(3) at the relevant time were in the following terms:
“Section 424A
Information and invitation given in writing by Tribunal
(1) Subject to subsections (2A) and (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
…
(3) This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b) that the applicant gave for the purpose of the application for review; or
(ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or
(c) that is non‑disclosable information.”
None of the particulars to the ground identify what “information” was caught by the obligation in s.424A of the Act. On the evidence before the Court, the Tribunal complied with its obligations in this regard.
To the extent that the Tribunal’s decision record may assist in identifying any such “information”, it is clear that the information relied on by the Tribunal all fell within one of the exemptions in s.424A(3) of the Act from the obligation s.424A(1) of the Act (SZMFZ v Minister for Immigration and Citizenship [2008] FCA 1890, SZMPT v Minister for Immigration and Citizenship [2009] FCA 99; (2009) 107 ALD 121, SZLPO v Minister for Immigration and Citizenship (No.2) [2009] FCAFC 60; (2009) 177 FCR 29 and SZTPW v Minister for Immigration and Border Protection [2015] FCA 564; (2015) 150 ALD 477 at [24] per Davies J (and see also MZYIA v Minister for Immigration and Citizenship [2011] FCA 642; (2011) 121 ALD 291 at [26] per Gray J, SZRCG v Minister for Immigration and Citizenship [2013] FCA 483 at [17] per Rares J and SZTPY v Minister for Immigration and Border Protection [2015] FCA 565 at [18] per Davies J)).
The applicant’s oral evidence, and other information he provided to the Tribunal, including corroborating documents, all come within s.424A(3)(b) of the Act. Information the applicant gave in writing to the delegate for the purposes of the application for the protection visa falls within s.424(3)(ba) of the Act.
While the Tribunal acknowledged that it had been given the applicant’s file in relation to his visitor visa application, the Tribunal found “[t]here is no information in that file that is material to the grounds on which this review has been determined” (footnote 3 at CB 192). The Tribunal’s subsequent reasoning is consistent with this finding. Therefore, it cannot be said that information from that file was the reason, or a part of the reason, for affirming the delegate’s decision, nor was it ever considered to be relevant by the Tribunal.
The Tribunal also made reference to evidence given orally by the applicant to the delegate at an interview. Such information does not come within the exception set out in s.424A(3)(ba) of the Act.
I note however, that a copy of the delegate’s decision record which contains references to the interview was provided by the applicant to the Tribunal (CB 137 and see SZTGV v Minister for Immigration and Border Protection [2015] FCAFC 3; (2015) 229 FCR 90 and Minister for Immigration and Citizenship v Chamnam You [2008] FCA 241).
The Tribunal’s reliance on information contained in that decision record about what occurred at the interview comes within s.424A(3)(b) of the Act. But in any event, there is nothing in the Tribunal’s decision record to say that the Tribunal relied on any of this information in making its decision.
Further, the Tribunal’s adverse findings, based in part on inconsistencies in the applicant’s evidence which led to its adverse credibility finding, were not “information” for the purpose of s.424A(1) of the Act (SZBYR at [18]).
Particulars “i”, “ii”, “iii” to ground one, in essence, take issue with the Tribunal’s conclusion that the applicant did not satisfy a key requirement for the grant of the protection visa. Namely, that he had a “well-founded fear” of persecution if he were to return to Bangladesh.
The Tribunal gave detailed and comprehensive reasons as to why it disbelieved the applicant’s account of past events. Its findings were reasonably open to it on what was before it. The Tribunal did not “ignore” the applicant’s claim to a “significant risk” that he would have “suffered” if he were to return to Bangladesh. It did not accept that there was a real risk of significant harm to the applicant. It provided reasons for this finding. In essence, the applicant’s particulars “i”, “ii”
and “iii” to ground one seek impermissible merits review.
Particular “iv” to ground one asserts a denial of procedural fairness concerning the Tribunal’s conduct of the hearing. The particular asserts that it was unfair of the Tribunal to cross-examine the applicant for “a duration of approximately 6 hours”, and that the applicant was asked questions that were “irrelevant” to his claims for protection.
The applicant has not pointed to any evidence to support these claims. The evidence before the Court reveals that the Tribunal hearing commenced at 1:10pm on 2 February 2016 and ended at 4:10pm on the same day (CB 180 to CB 182). That is, the Tribunal hearing was of three, not six, hours duration. Further, in that time, the Tribunal also took evidence from two other witnesses. Therefore, the applicant’s complaint fails at the factual level.
The applicant has also not identified what “irrelevant” questions the Tribunal asked him at the hearing. No transcript has been provided by the applicant to the Court despite the opportunity to do so. On the evidence that is before the Court, the Tribunal’s questions were directed to the applicant’s claims. There is nothing to indicate the Tribunal asked questions about any irrelevant matters, such that it could be said that it took into account irrelevant considerations (Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24).
Particular “v” to ground one asserts the Tribunal made its findings “without any evidence or verification”.
Whoever drafted the applicant’s ground failed to understand that there was evidence before the Tribunal on which it based its findings. That is, the applicant’s own evidence.
The Tribunal did not have to uncritically accept the applicant’s evidence in support, or explanation, of his claims (Randhawa v Minister for Immigration, Local Government& Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437; (1994) 124 ALR 265). As set out above, the Tribunal gave comprehensive reasons for disbelieving the applicant’s claims and evidence. These findings were reasonably open to the Tribunal on what was before it. As the Minister submits, the findings were based on “rational grounds” that were arrived at upon consideration of matters that were “logically probative to the issue of credibility” (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407; (2000) ALJR 405, Kopalapillai v Minister for Immigration and Multicultural Affairs [1998] FCA 1226; (1998) 86 FCR 547 and CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 and see [15] of the Minister’s written submissions).
In essence, the Tribunal gave reasons as to why it found the applicant was not a credible witness. It rejected his claims regarding his marriage to a Christian woman, his conversion to Christianity, and his claimed difficulties in Bangladesh, on the basis of these adverse credibility findings.
I also note, and as the Minister submits, the Tribunal’s credibility findings did not require “positive evidence” ([15] of the Minister’s written submissions). It was sufficient for the Tribunal to disbelieve the evidence because of the surrounding circumstances (WAJS v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 139; (2004) 168 ALR 407 at [17]).
Particular “vi” to ground one is in similar terms to particular “vii” as set out in the applicant’s written submissions. Essentially, both particulars assert that the Tribunal failed to comply with s.424A(1)(b) of the Act. However, as is clear in the applicant’s written submissions, this is just another expression of disagreement with the Tribunal’s adverse credibility finding. The Tribunal is only required by s.424A(1)(a) of the Act, to give clear particulars of the information on which it seeks to rely. For the reasons set out above, that obligation in s.424(1)(a) of the Act was not engaged.
No jurisdictional error is revealed by ground one.
Ground two asserts that the Tribunal “failed to comply with the requirements of s.425” of the Act. Contrary to the applicant’s particular, the Tribunal’s adverse findings as to the applicant’s credibility do not, on their own, establish jurisdictional error.
The applicant was invited to a hearing pursuant to s.425 of the Act. On the day of the scheduled hearing, the applicant’s migration agent representative contacted the Tribunal seeking an adjournment. The representative sought the adjournment because he said the applicant was “unwell”. The Tribunal rescheduled the hearing and the applicant appeared before the Tribunal on 2 February 2016 (CB 143 to CB 186). On the evidence before the Court, this was a meaningful opportunity for the applicant to give his evidence and make his arguments in relation to the issues in the review (SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152, AZAAD v Minister for Immigration and Citizenship [2010] FCAFC 156; (2010) 189 FCR 494 and Minister for Immigration & Multicultural & Indigenous Affairs v SCAR [2003] FCAFC 126).
The particular to the ground appears to complain that the Tribunal rejected the applicant’s corroborative evidence from his witnesses at the hearing, and the documents submitted to the Minister’s department. This is not a breach of s.425 of the Act.
The particular contained in the applicant’s written submissions further complains that the Tribunal “misjudg[ed] the application” in relation to the “applicant’s oral evidence” and “corroborative evidence”, and the applicant did not receive “natural justice” as a result. This relates to findings made by the Tribunal, not to the conduct of the hearing.
The Tribunal did not believe the applicant’s evidence. The Tribunal found that its state of its disbelief was such that it could give no weight to the various items of written corroborative evidence (see [47] at CB 200 to [55] at CB 202). The Tribunal found the applicant had failed to give a consistent and credible account. Its concerns about his credibility significantly discredited him as a witness. In this light, the oral evidence of his witnesses, in particular the evidence from his uncle, could not overcome the Tribunal’s concerns (Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59).
There is nothing before the Court to indicate the Tribunal misunderstood or “misjudged” the applicant’s evidence. The applicant’s complaint does not rise above mere disagreement with the Tribunal’s findings and seeks impermissible merits review.
As to the evidence from the pastor of the Church in Australia, the Tribunal accepted that the applicant had attended church in Australia. However, the Tribunal disbelieved the ([56] at CB 202):
“… evidence he gave the delegate that his sister who lives in Australia has little to do with him because he is a Christian. That is because the Tribunal does not believe that the applicant is a Christian. While the Tribunal has accepted the applicant has attended a Christian church and religious gatherings in Australia, he has not done this out of any genuine commitment to Christianity. Further, there is no credible evidence before the Tribunal that his attendance in Australia is of interest to anybody in Bangladesh. To the department the applicant submitted information about the Christian group in Bangladesh which provided the letter for him and which has been discussed above. None of that information makes specific reference to the applicant. He also submitted information about the treatment of Christians in Bangladesh including about those who convert to Christianity and witness B made statements about that at the hearing as well. This information does not assist the applicant because he is not a Christian and has never converted.”
These findings, and the conclusion derived from these findings, were all reasonably open to the Tribunal for the reasons that it gave, and probative of the material before it. No legal error is revealed by ground two.
I note also (although not raised by the applicant’s grounds or written submissions) the Minister’s submissions in relation to a matter that was raised before the Tribunal. That is, the applicant claimed that he was depressed and anxious before the Tribunal.
The applicant attended the hearing before the Tribunal with his legal representative and an interpreter in the Bengali language. However, as the Minister submits, if the applicant’s ground seeks to raise some claim that his depression and anxiety affected his capacity to give evidence at the hearing, then it must be demonstrated that the applicant was unable to “give evidence, present arguments”, or “answer questions in the course of a hearing” (Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41; (2010) 183 FCR 575, Minister for Immigration and Citizenship v SZNCR [2011] FCA 369 at [30]-[33] and SZOVP v Minister for Immigration & Anor (No.2) [2011] FMCA 442 at [48]).
However, this issue was raised before the Tribunal and the Tribunal considered and rejected the applicant’s claims in this regard. As noted above at [13], the Tribunal found that the applicant was “responsive” at the hearing, and “engaged in giving evidence about his protection claims”. The Tribunal was satisfied, given what had occurred at the hearing, that the applicant had been given a meaningful opportunity to participate at the hearing ([44] at CB 199 to CB 200). Again, that finding was open to the Tribunal for the reasons that it gave. No jurisdictional error is revealed in that regard.
Conclusion
There is no jurisdictional error in the Tribunal’s decision record. It is appropriate to dismiss the application to the Court. I will make the appropriate order.
I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Associate:
Date: 19 February 2018
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