APK16 v Minister for Immigration
[2017] FCCA 782
•21 April 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| APK16 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 782 |
| Catchwords: MIGRATION – Application for review of decision of Administrative Appeals Tribunal (Tribunal) affirming decision of a delegate of first respondent not to grant applicant protection visa – whether the Tribunal considered applicant’s claims for protection – whether the Tribunal was obliged to make inquiries about the authenticity of documents the Tribunal was not prepared to accept as authentic – no jurisdictional error. |
| Cases cited: Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88 BZAHN v Minister for Immigration and Border Protection [2016] FCA 281 Minister for Immigration and Border Protection v SZRTF [2013] FCA 1377 Minister for Immigrationand Citizenship v SZIAI [2009] HCA 39 |
| Applicant: | APK16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 634 of 2016 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 7 March 2017 |
| Delivered at: | Sydney |
| Delivered on: | 21 April 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr A Kumar |
| Solicitors for the First Respondent: | Ms H Musgrove of Sparke Helmore Lawyers |
ORDERS
The application is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 634 of 2016
| APK16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant, a citizen of Bangladesh, seeks judicial review of a decision of the second respondent (Tribunal) affirming a decision of a delegate of the first respondent (Minister) not to grant the applicant a Protection (Class XA) visa (Protection visa).
Claims for Protection
In a statement that accompanied his application for a Protection visa,[1] the applicant claimed that he joined the Bangladesh Jatiyatabadi Dal (BNP) and participated in the Parliamentary elections of 1991, 1996, and 2001. In 2010 he became the president of a particular union committee (Union Committee) and the vice president of a regional committee of the BNP (Upazila Committee). Gradually, the applicant “extended more time in politics” and the applicant’s “popularity and fame became an eyesore of the Awami League leaders and activists”. In November 2011, while he was returning home, the applicant was attacked by a group of Awami League cadres. The applicant was “beaten by them seriously”, and people by the roadside sent him to a clinic where he stayed for seven days. After this incident “a protest gathering was took place by the BNP”. In the meantime, a “false case was filed against” the applicant. Life for the applicant became unstable in Bangladesh and, later, he came to Australia. The applicant said he “managed the airport by a huge bribe”.
[1] CB36-38
Under cover of a letter dated 6 July 2014 the applicant’s representative provided to the delegate three documents.[2] One was described as “[c]opies of the committee of Chhatak Upazila Committee” which purported to list members of that committee.[3] The document purported to record the applicant was one of the committee’s vice-presidents. The second document was a translated “copy of the Daily Sabuj Sylhet”.[4] It purports to be a report by a correspondent which refers to, among other things a “public relation program” in which a number of BNP officials were present, including the applicant. The third document purports to be a “Charge sheet”.[5] It appears the applicant’s representative also provided to the delegate a letter from a BNP official, Mr M, which purports to certify the applicant is vice president of the Upazila Committee and president of a Union Committee, that the applicant “is a leading activist of the BNP and has participated in various demonstrations against current regime activity”, and that the BNP believe that if the applicant returns to Bangladesh “he will be persecuted”, and the BNP “are concerned about his security of life”.[6]
[2] CB39
[3] CB40-42
[4] CB43
[5] CB44-55
[6] CB58
Under cover of a letter dated 17 July 2014, the applicant’s representative provided to the delegate what purports to be a court order.[7] The representative stated the “document demonstrates that there is a warrant of arrest has been issued against the applicant” (sic).
[7] CB59-63
The applicant expanded on his claims before the delegate.[8] Among other things, the applicant said he had a small chicken farm in Bangladesh; he joined the BNP in 1979 and, in 2003, had become president of a particular union of the BNP; he was again elected president of the union in 2010 and, in the same year, was elected vice-president of the Upazila Committee; as vice president of the Upazila Committee he attended meetings and collected people to attend those meetings, he had a lot of paper articles, he organised all the functions and meetings; and the applicant had learnt about the false claim against him because the police went to his house to arrest him, but he had already left his home.
[8] CB130-131, [5]-[11]
Under cover of a letter dated 23 November 2015, the applicant’s representative provided to the Tribunal submissions signed by the applicant and two further documents.[9] The submissions responded to “negative findings” of the delegate. The submissions referred to the delegate not accepting the authenticity of documents the applicant had submitted and also claimed the delegate did not refer to two newspaper articles the applicant submitted. The representative submitted that the documents the applicant provided to “the Department . . . such as charge sheet (false case), warrant of arrest, evidence of newspaper articles (news) . . . are genuine”.
[9] CB107-112
Hearing before Tribunal
At the hearing, the Tribunal put to the applicant that it considered it relevant that the information available to the Tribunal indicates there is “a significant prevalence of fraudulent documents in Bangladesh”,[10] and that the applicant said the documents were genuine and suggested “the Department could go to the area to verify that this was the case”.[11] The applicant said:[12]
I have said previously also that if the department have any doubt about any documents that I have produced, the place I stay, it’s a big city, It’s enormous city, so they can go into the area and can take information.
[10] CB137, [34]; Transcript, page 15.25. The transcript of the hearing before the Tribunal is annexed to the affidavit of the applicant made on 6 March 2017.
[11] CB137, [35]
[12] Transcript, page 15.30
After the hearing, the applicant’s representative provided a further written submission and a further letter purportedly from Mr M.[13] The representative submitted the documents on which the applicant relied are genuine.
[13] CB122-124
The Tribunal’s decision
The Tribunal accepted the applicant was a member of the BNP in Bangladesh and that he held the positions he claimed he held in the BNP.[14] The Tribunal found, however, that the applicant had exaggerated his importance in the BNP by claiming he was famous as a political person, and that that was the reason Awami League cadres targeted him.[15] The Tribunal in particular found that although the applicant was the president of the Union Committee, that position would not have given the applicant a profile beyond his local area, and the applicant was only one of ten vice presidents at the sub-district level. Further, the activities the applicant said he undertook, namely, campaigning door to door and encouraging people to become members of the BNP appeared to the Tribunal “to be at a pretty low level”.[16]
[14] CB136, [31]
[15] CB136, [31]
[16] CB136, [31]
The Tribunal appeared to accept the applicant had been assaulted as he had claimed. The Tribunal noted, however, that the applicant continued living in the area in which he was attacked. The Tribunal considered that if, as the applicant claimed, the Awami League cadres had really been trying to attack the applicant they would have had the opportunity to do so.[17]
[17] CB136, [32]
The Tribunal did not accept the applicant’s claim that the false case against him was filed in April 2012, but the police did not try to arrest him until August 2012. The applicant continued living in the same area; and if the police wanted to arrest him they had ample opportunity to do so before the applicant left Bangladesh in September 2013.[18]
[18] CB136, [33]
The Tribunal referred to documents on which the applicant relied. The Tribunal referred to “what purport to be a charge sheet, a court order dated 15 July 2014 suggesting that a warrant has been issued” for the applicant’s arrest, and “two further documents which purport to be orders made by magistrates although the dates and the effect of these orders are unclear”.[19] The Tribunal considered it was relevant that the information available to the Tribunal indicates there is “a significant prevalence of fraudulent documents in Bangladesh”.[20] The Tribunal referred to the applicant’s representative’s submission that the fact that the applicant was an honest witness should be taken into account when considering the documents the applicant provided. The Tribunal, however, said it considered the applicant had exaggerated his importance, and the Tribunal had “particular difficulty in accepting his evidence that a false criminal case was filed against him on 22 April 2012 but that he was not arrested even though he remained in Bangladesh until September 2013”.[21]
[19] CB136, [33]
[20] CB137, [34]
[21] CB137, [34]
The Tribunal referred to the applicant submitting the documents were genuine, and to the applicant suggesting “the Department could go to the area to verify that this was the case”.[22] The Tribunal did not accept that suggestion:[23]
I do not accept on the evidence before me that this is a case where an obvious inquiry could be made about a critical fact, the existence of which could readily be ascertained. I give greater weight to the problems I have with [the applicant’s] own evidence than I do to the documents which he has produced in relation to the false case and the two letters from [Mr M].
[22] CB137, [35]
[23] CB137, [35]
Grounds of application
The applicant relies on grounds 1, 2, and 3 of the amended application the applicant filed on 28 February 2017. Counsel for the applicant did not press ground 4.
Grounds 1 and 2
Grounds 1 and 2 are related, and counsel for the applicant made submissions on the basis that the two grounds should be considered together.
Ground 1 is as follows:
The Tribunal failed to engage with the claim that the Applicant’s involvement with BNP at the local level heightened the risk of harm to him and / or has been illogical in reaching its conclusion that the Applicant was not at the risk of harm for political activities.
Particulars
(i)The Tribunal accepted that the Applicant’s claim that he was a member of BNP.
(ii)The Tribunal accepted that the Applicant’s claim that he held positions in BNP (AAT at [31]).
(iii)The Tribunal has found the Applicant not to be of high profile (at [36]).
(iv)The Tribunal did not engage with the claim/integer or engaged with a different claim/integer than being propounded by the Applicant (had to high profile nationally) whereas the Applicant was claiming that he suffers from threat in a particular region.
(v)The Tribunal failed to assess the claim advanced by the Applicant and addressed a different claim (at [31]).
(vi)The Tribunal committed jurisdictional error.
Ground 2 is as follows:
The Tribunal denied the Applicant’s procedural fairness and/or constructively failed to consider the claims and particularly did not engage with and consider the documents submitted.
Particulars
(i)The Tribunal found that the Applicant’s position at local level did not expose the Applicant to risk;
(ii)Accepted that the Applicant’s claim that he was a member of BNP.
(iii)The Tribunal accepted that the Applicant’s claim that he held positions in BNP (AAT at [31]).
(iv)The Tribunal failed to provide the Applicant opportunity to address the findings that applicant is not high profile (at [36]) and is unlikely to be harmed.
(v)The Tribunal has not provided the Applicant opportunity to address the DFAT country information in light of his claims.
(vi)The Tribunal committed jurisdictional error.
In his written submissions, the applicant submits the Tribunal “generically characterised the roles of the” applicant, addressed those roles “in composite fashion”, and, by characterising the applicant’s roles as “low level”, the Tribunal conflated “the various roles in composite fashion”.[24] The applicant also submitted the Tribunal failed to assess the claim the applicant advanced. In particular, the applicant submits the Tribunal assessed the risk to the applicant by reference to whether he had a high profile nationally, whereas the applicant’s claim was that he was at risk in the particular region in which he operated.[25]
[24] Applicant’s Outline of Submissions, [10]
[25] Applicant’s Outline of Submissions, [11]-[13]
I will first consider whether the Tribunal, as the applicant claimed, assessed the applicant’s case on the basis that the applicant has a national, as opposed to a regional, profile. The applicant relies on paragraph 31 of the Tribunal’s decision:
I accept that [the applicant] was a member of the BNP in Bangladesh and that he held the positions which he claims to have held in the BNP in his local area. I accept that, as his representatives have submitted, he has not sought to embellish his role in the BNP but I consider that he has exaggerated his importance by claiming that he was famous as a political person and that this was why he was targeted by the Awami League cadres. As I put to [the applicant], it appears to me on the basis of his own evidence that he was not a person who had a particularly high profile. Although I accept that he was the president of the Dhakin Kurma Union BNP I consider that this position would not have given him a profile beyond his local area and he was only one of the ten vice-presidents at the sub-district level. As I put to him, the sort of activities which he has described, campaigning door to door and going around encouraging people to become members of the party, appear to me to be at a pretty low level.
It is not correct the applicant restricted his claim to fear harm by reference only to his having a local profile. In his application for a Protection visa, the applicant claimed he “extended more time in politics” and his “popularity and fame became an eyesore of the Awami League leaders and activists”. The applicant also claimed his life had become “unstable in Bangladesh”, and that, if he is returned to Bangladesh, he will be persecuted. These claims were not restricted to a particular region.
In any event, the Tribunal assessed the applicant’s claims based on a finding that the applicant had a profile in his local area. Thus, if the applicant’s claim was one based on his having only a local profile, the Tribunal assessed that claim. It was the activities the Tribunal accepted the applicant undertook in his local area that the Tribunal found was at a “low level”.
I do not accept the Tribunal conflated the different roles the applicant claimed he undertook, or that the Tribunal described them in a composite fashion. The Tribunal identified the applicant was a member of the BNP, the President of the Union Committee, and the vice president of the Upazila Committee, and set out the activities the applicant said he undertook on behalf of the BNP. It was by reference to these matters that the Tribunal assessed the applicant’s claims.
Grounds 1 and 2, therefore, fail.
Ground 3
Ground 3 is as follows:
The Tribunal committed jurisdictional error regarding the application for review in circumstances it was under duty to make further enquiries to ensure that the Applicant could participate in the review process and/or denied procedural fairness and/or constructively exercised the jurisdiction.
Particulars
(a)The Tribunal accepted the Applicant’s claim that he held positions in BNP (CB 135 – AAT at [29]-[34])
(b)The application submitted various documents in relation to the Applicant’s claims including documents relating to the false charges and the relevant court proceedings.
(c)Charges against persons are generally public information.
(d)It was reasonably easy for the Tribunal to obtain the information as to whether the alleged charges against the Applicant was genuine through public records.
(e)Alternatively, DFAT was in position to obtain the information regarding the Applicant’s BNP activities.
(f)The relevant information relation to the Applicant was otherwise readily available such as from the institution involved or other public records.
(g)The Tribunal failed to carry out its statutory duties and committed jurisdictional error.
This ground is directed to the Tribunal’s not taking up the applicant’s suggestion that the Department of Immigration and Border Protection make inquiries relevant to the authenticity of the documents on which the applicant relied.
The particulars to this ground rest on factual premises which are not supported by any evidence. In particular, it is asserted in the particulars that “[c]harges against persons are generally public information”, that it “was reasonably easy for the Tribunal [or the Department of Foreign Affairs and Trade] to obtain the information as to whether the alleged charges against the Applicant was genuine through public records”, and that “relevant information [in] relation to the Applicant was otherwise readily available such as from the institution involved or other public records”. Counsel for the applicant repeated these assertions in submission, but whether or not they are correct depends on evidence of which none was tendered. For that reason alone, ground 3 cannot be made out.
The applicant, in his written submissions,[26] referred to the following passage from the judgment of the High Court in Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs:[27]
What is important to notice in the present case, however, is first, that information was supplied confidentially to the Department by someone who sought to remain unknown to the appellant, and secondly, that the information bore on whether the appellant was entitled to a protection visa. The Tribunal was not an independent arbiter charged with deciding an issue joined between adversaries. The Tribunal was required to review a decision of the Executive made under the Act and for that purpose the Tribunal was bound to make its own inquiries and form its own views upon the claim which the appellant made. And the Tribunal had to decide whether the appellant was entitled to the visa he claimed.
[26] Applicant’s Outline of Submissions, [23]
[27] (2005) 225 CLR 88 at [26]
As counsel for the applicant noted in the applicant’s written submissions, this passage must be read subject to what the High Court said in Minister for Immigrationand Citizenship v SZIAI:[28]
The observation in Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs that the Tribunal was “bound to make its own inquiries and form its own views upon the claim which the appellant made” was informed by the context, which concerned the requirements, in the circumstances, of procedural fairness. The Court held that procedural fairness had required the Tribunal to tell the applicant the substance of certain allegations made against him by a third party and to ask him to respond to them.
[28] [2009] HCA 39 at [19]
The Full Federal Court has interpreted SZIAI as being authority for the proposition that “a failure by the Tribunal to make inquiries about a critical fact the existence of which could be easily ascertained may mean that no review has been conducted”.[29] That means that whether or not in any particular case the Tribunal is under a duty to make an inquiry about the existence or non-existence of a particular fact depends on whether the fact is a critical fact and, if so, whether the fact is one whose existence or non-existence could easily be ascertained.[30]
[29] Tang v Minister for Immigration and Citizenship [2013] FCAFC 139 at [28] (Rares, Perram and Wigney JJ)
[30] See, for example, BZAHN v Minister for Immigration and Border Protection [2016] FCA 281 at [52] Rangiah J); Minister for Immigration and Border Protection v SZRTF [2013] FCA 1377 (Katzmann J); SZRSC v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 819 at [16] (Davies J); SZROQ v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 833 at [28] (Farrell J); SZRUY v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 806 at [22] (Farrell J); SZSEV v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 794 at [16] (Cowdroy J); Khant v Minister for Immigration and Citizenship [2009] FCA 1247 (Cowdroy J)
Although it may be accepted that the question of the authenticity of the documents on which the applicant relied was critical to the applicant’s claims, the applicant submitted nothing but bare assertions to the effect that the authenticity of the documents could easily be ascertained. As I have already concluded, there is no evidence on the basis of which I could be satisfied the Tribunal could easily have inquired into the authenticity of the documents on which the applicant relied. The Tribunal itself gave thought to that question, and did not accept there was an obvious inquiry open to the Tribunal to make to assess the authenticity of the documents on which the applicant relied.[31]
[31] CB137, [35]
There is another matter that is relevant to assessing whether the Tribunal acted unreasonably in undertaking no inquiries about the authenticity of the documents. There is evidence relevant to the authenticity of the documents it is reasonable to expect the applicant would have had in his possession if the documents were in fact authentic as he claimed. The most obvious class is evidence that would show how the applicant came to possess the documents he provided to the Tribunal. For example, did the applicant himself obtain the court documents from the court that purportedly issued them? If so, when and how did the applicant apply for the documents? And when and how did the court provide the documents to the applicant? In the absence of the applicant providing such minimum evidence, it is impossible to find the Tribunal acted unreasonably or otherwise in breach of its duty to review the applicant’s case, by itself not attempting to make inquiries of the organisations that purportedly issued the documents on which the applicant relied.
Ground 3, therefore, also fails.
Disposition
The applicant has not succeeded on any of the grounds on which he relies. I propose, therefore, to dismiss the application.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Date: 21 April 2017
10
0