AQB17 v Minister for Immigration

[2018] FCCA 2719

FEDERAL CIRCUIT COURT OF AUSTRALIA

AQB17 & ORS v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2719

Catchwords:
MIGRATION – Protection visa application – review of decision of Administrative Appeals Tribunal – whether the Tribunal erred by failing to deal with an integer of the applicants’ claims – whether the Tribunal erred in taking too narrow a view on the material before it – whether the Tribunal erred by failing to consider the availability of state protection – whether the Tribunal failed to exercise its power under s.438 of the Migration Act 1958 (Cth) – no jurisdictional error – application dismissed.

Legislation:

Constitution (Cth), s.75(v)

Migration Act 1958 (Cth), ss.5H, 36, 417, 424, 438, 474, 476

Other materials cited:
Convention Relating to the Status of Refugees (1951) as amended by the Protocol Relating to the Status of Refugees (1967), Article 1A(2)

Cases cited:

Minister for Immigration & Border Protection v CZBP [2014] FCAFC 105

Minister for Immigration & Multicultural Affairs v Khawar (2002) 210 CLR 1

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152

SZBYR v Minister for Immigration & Citizenship (2007) 81 ALJR 1190

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

First Applicant: AQB17

Second Applicant: AQC17

Third Applicant: AQD17

Fourth Applicant: AQE17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 448 of 2017

Judgment of: Judge Smith

Hearing date: 17 August 2018

Date of Last Submission: 17 August 2018

Delivered at: Sydney

Delivered on: 17 August 2018

REPRESENTATION

The first and second applicants appeared in person.

Solicitors for the Respondents: Ms M Perotti, Sparke Helmore

ORDERS

1. The application be dismissed.

2. The first and second applicants pay the first respondent’s costs fixed in the amount of $5,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 448 of 2017

AQB17

First Applicant

AQC17

Second Applicant

AQD17

Third Applicant

AQE17

Fourth Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Extempore and Revised)

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal made on 23 January 2017.  The Tribunal affirmed a decision of a delegate of the Minister for Immigration made on 1 October 2014 refusing to grant the applicants protection visas.  The first and second applicants are husband and wife.  The third and fourth applicants are their children.  They are all citizens of Bangladesh, although the children were born in Australia.  I will refer, for convenience, to the first and second applicants as the applicants.

2. The applicants first lodged an application for a protection visa on 20 June 2008. That application was unsuccessful. On 11 September 2008, a delegate of the Minister made a decision to refuse to grant the applicants a protection visa and an application for review to the Refugee Review Tribunal (RRT) was unsuccessful pursuant to a decision made on 24 December 2008. Subsequently, in or about January 2010, the applicants sought the exercise by the Minister for Immigration of his power under s.417 of the Migration Act 1958 (Cth) to make a decision more favourable than that made by the RRT.

3. That application, and the details of it, are relevant to an issue that arises in these proceedings but need not be examined in any great detail.  The application was unsuccessful and was finalised on 3 May 2010.  At that time, ordinarily a person who had unsuccessfully applied for a protection visa was prohibited from applying again for a protection visa;  however, that changed, when in March 2012, there was introduced into the Act a further criterion for the visa in sub-s.36(2)(aa) known as the complementary protection criterion.

4. In a decision of the Full Court of the Federal Court in SZGIZ v Minister for Immigration & Citizenship (2013) 212 FCR 235, it was explained that the prohibition on making a second protection visa application did not apply to a person who had previously applied for a protection visa on one criterion but wished to make an application for a protection visa on a different criterion, relevantly, in this case, the complementary protection criterion. In light of those circumstances, the applicants were able to, and did make a further application for a protection visa on 16 May 2014.

5. Essentially, the claims were based on three matters: first, on the first applicant’s involvement in politics and in particular, his membership of and involvement with the Bangladesh National Party (BNP). The Tribunal summarised those claims at [28] through to [35] of its reasons. Secondly, and related to that claim, there was a claim that there had been false murder cases lodged against the first applicant, and as a result he would be arrested and his family might be harmed upon return to Bangladesh. The third claim was that the first applicant would face extortion threats on return to Bangladesh, both because he was a member of the BNP and as a returnee from the west he would be perceived to be wealthy: Tribunal’s reasons at [58].

6. On 1 October 2014, a delegate of the Minister made a decision to refuse to grant the applicants a protection visa. On the same day, a different delegate prepared a certificate purportedly under s.438 of the Act, indicating that that provision applied to folios 212 to 218 of file number CLF2008/100056. I will come back to that certificate. The applicants applied to the RRT for review of the delegate’s decision however, on 1 July 2015, the Administrative Appeals Tribunal assumed the functions of the RRT and so it conducted the review in place of the RRT.

7. On 26 July 2016, the applicants attended a hearing conducted by the Tribunal and on 23 January 2017 the Tribunal made its decision to affirm the decision of the delegate.  The findings and conclusions of the Tribunal are summarised accurately in the first respondent’s submissions at [8] to [11] which I set out below:

   [8]The Tribunal accepted that the applicant had attended occasional meetings of the BNP in Sydney, but did not accept that he was a BNP activist, nor that he had any regular involvement with the BNP in Sydney. The Tribunal had regard to a letter provided by the President of the BNP in Sydney, finding that it did not provide any specific evidence outlining his work with the BNP. The Tribunal further noted that the applicant’s own evidence suggested that he had only minor involvement with the BNP in Australia and gave little weight to the letter. The Tribunal did not consider that the applicant had any current active involvement in the BNP, nor that he would face significant harm were he to return to Bangladesh for reason of his involvement in the BNP in Sydney.

   [9]The Tribunal did not accept that the applicant was actively involved in political activities in Bangladesh as a member or supporter of the BNP. It accepted that the applicant had once been a member of the student wing of the BNP in 1993, but did not accept that the applicant was well known in Bangladesh because of this. The Tribunal had regard to a letter of support provided by Mr C which described the applicant as a “leading activist”). The Tribunal gave the letter little weight as there was no evidence as to what contact the applicant had had with Mr C, or any explanation of the basis upon which he described the applicant as an activist.

   [10]On the evidence before it, the Tribunal did not accept that the applicant was well known in Bangladesh as a BNP activist, or a high profile member or supporter of the BNP. The Tribunal did not accept that the applicant had been actively involved in the BNP since he left Bangladesh, or that he had been involved with the BNP in Australia other than to occasionally attend meetings or functions organised by the Sydney branch of the BNP. The Tribunal considered that there was no information before it to suggest that family members of former BNP members or supporters had been mistreated in Bangladesh solely because of a familial link with a BNP supporter or member. The Tribunal rejected the applicant’s claim that a false murder case had been lodged against him in Bangladesh, noting that the Bangladeshi Government would have records indicating that the applicant was not in the country at the time of the alleged offence, and that in any event the fact that the applicant had managed to renew his Bangladeshi passport without issue indicated that he was of no interest to the authorities. The Tribunal also rejected the applicant’s claim that he would be extorted were he to return to Bangladesh as he would be perceived as wealthy, noting that the applicant had returned to Bangladesh numerous times between 1994 and 2007 without being harmed.

   [11]On the basis of these findings, the Tribunal was not satisfied that the applicant would face significant harm were he to return to Bangladesh. Having so found, it followed that the second, third and fourth applicants would also not face serious or significant harm were they to return to Bangladesh. Accordingly, the Tribunal affirmed the decision under review.

   (References and names omitted/Emphasis in original)

8. The applicants now seek judicial review of that decision. 

Consideration

Grounds 1-4

1. In their amended application the applicants raised four grounds. In addition to those four grounds, there is an issue that was brought to the Court’s attention concerning the certificate purportedly issued by a delegate of the Minister on 1 October 2014. Related to that issue is a matter raised by the applicants at the hearing today, namely, that the Tribunal breached its obligation under s.424A of the Act in respect of the material that was subject to that certificate. I will deal with the grounds in the amended application first and then return to those additional issues once I have done so.

2. The first ground in the amended application is that the Tribunal failed to deal with an integer of the applicants’ claim, namely, that the first applicant would be subject to extortion for a Convention reason if he were to return home.  In the particulars it is noted that the applicants claimed that they feared harm in the form of extortion because of the applicants’ beliefs and affiliations as well as from criminals.  Leaving aside the reference to “convention reason”, which is not relevant to the application because it was made in pursuit of the complementary protection criterion, the ground may be dealt with briefly.

3. It may be accepted, in light of [58] of the Tribunal’s reasons, that there was a claim expressly made that the applicant, which I understand to be the first applicant, would face extortion threats for two reasons: namely, that he was a member of the BNP and that as a returnee from the west he would be perceived as wealthy.  However, it is clear from not only the last sentence of [58] of the Tribunal’s reasons, but also the whole of [59], that the Tribunal considered, but did not accept the claim.   In light of that, the first ground cannot succeed.

4. The second ground is that “the Tribunal took a very narrow view when drawing attention to the supporting documents”.  The ground points to [49] in which the Tribunal said that it placed “little weight on this material”, and the applicants assert that that finding was made in error.  At the hearing the first and second applicants (who appeared for all of the applicants), made oral submissions concerning this ground and argued that the Tribunal took a narrow view and that the Court ought to take a broader view of the material before the Tribunal.

5. Before dealing with the specific findings of the Tribunal it is necessary to note the limitations on the Court’s jurisdiction. The relief sought by the applicants cannot be granted by this Court unless it is satisfied that the Tribunal’s decision was affected by jurisdictional error. That is because of the combination of ss.474 and 476 of the Act, which provides that this Court has the same jurisdiction as the High Court has under s.75(v) of the Constitution (Cth) in respect of migration decisions: see Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

6. The question of what is a jurisdictional error is not one that admits of an easy or concise answer.  It is, however, well-established that the Tribunal does not fall into jurisdictional error simply by giving little weight to particular documents.  When I say “simply”, I mean to say that there are occasions in which the Tribunal might fall into error by giving little weight or no weight to documents:  Minister for Immigration & Border Protection v CZBP [2014] FCAFC 105. It depends on the reasons given by the Tribunal for that consideration and whether the Tribunal has acted reasonably.

7. In this case, the Tribunal explained at [49] that it had regard to a letter from a person who described the first applicant as a leading activist.  It then stated that it placed little weight on the material because there was no evidence of what contact the author of the letter had had with the applicant and that the letter did not explain the basis of the author’s description of the applicant.  Further, the Tribunal noted that the author had “not outlined the applicant’s activities or involvement in the BNP” and had “not provided any information which might assist in explaining how the applicant could be regarded as a leading activist when he has not lived in Bangladesh since 2008 and prior to that only visited once every two years from 1994”.

8. Those reasons disclosed that the Tribunal engaged with the content of the letter and compared it to its analysis of the other evidence before it, including the claims made by the applicants and their own evidence given in support of their claims.  It was not a matter of discarding the letter for no reason.  In other words, the Tribunal acted, in my view, reasonably in a way that could be said to be open to it.  In light of that, I am satisfied that no jurisdictional error arises from the way in which the Tribunal dealt with, or ascribed weight to the letter relied upon by the applicants.   For those reasons, ground 2 must be rejected.

9. The third ground is that the Tribunal “failed to consider at all the availability of state protection for the applicant”.  The particulars to the ground are not easy to understand.  They are:

   The tribunal failed to properly define he particular social group and its characteristics or attributes, actual or imputed, raised by the applicants or by the evidence.  It thus prevented itself from inquiring and obtaining evidence concerning that issue that might have determined the application in the applicants favour.  Not finding all the available information of state protection is an error in such.

   (Without alteration)

10. A number of matters may be said about those particulars. First, that references to particular social group and the characteristics or attributes do not fit comfortably in the framework of the complementary protection criterion. That is because, unlike the refugee criterion found in s.36(2A) of the Act, there is no necessary reason for which the harm is to be inflicted, so long as, broadly stated, the harm is intentionally inflicted. Thus, questions of particular social group, which do arise when considering whether a person is a refugee within the meaning of s.5H of the Act, do not arise necessarily under sub-s.36(2)(aa), although it is not necessarily irrelevant because it could provide a basis for the risk of harm to arise.

11. Secondly, it is not at all clear what a particular social group has to do with the availability of state protection.  There are cases in which the Tribunal has erred by failing to consider whether state protection has been withheld because of membership of a particular social group.  The case of Minister for Immigration & Multicultural Affairs v Khawar (2002) 210 CLR 1, is one in point where a female citizen of Pakistan claimed that police had failed to protect her from the violent assaults of her husband because she was a woman, and the Tribunal failed to consider whether that lack of availability of protection in and of itself amounted to persecution within the meaning of the Refugees Convention[1].

    [1] The Convention Relating to the Status of Refugees, 1951 as amended by the Protocol Relating to the Status of Refugees, 1967, Article 1A(2).

12. That issue, however, does not appear to arise here.  The question of availability of state protection can arise under the complementary protection criterion because of the operation of sub-s.36(2B)(b), which provides:

    (2B)However, there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that: 

    ...

    (b)the non-citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

    ...

13. The problem, however, in this case is that it is not necessary in every case for a decision-maker to determine whether there is availability of protection.  If, as here, there was a higher level finding that there was no real risk of significant harm, it was simply unnecessary for the Tribunal to continue to consider other ways, or other reasons, for which there might not be a real risk of significant harm.  Thus, because of the findings of the Tribunal about the higher level issue that arose under sub-s.36(2)(aa), it was unnecessary for it to address the narrower issue of state protection under sub-s.36(2B)(b).  For that reason, its failure to do so did not constitute jurisdictional error and ground 3 must be rejected.

14. Ground 4 again relates to the issue of extortion.  The applicants refer to the Tribunal’s finding at [59] that “there is no information before the Tribunal which indicates that returnees from the West are subject to extortion demands”. The applicants argue that the Tribunal did not discuss with them “it’s [sic] reasoning nor did it attempt to consider similar cases where it was found that to be a particular social group”.  The particulars do not quite match the ground.  They state that:

    The tribunal failed to consider the duality in the applicants claim to fear extortion.  Being not just because they might appear to have wealth, but also because they belong to a vulnerable social group, being Bangladeshis who have been active in the BNP and appear wealthy.  Having young kids makes it even dangerous and makes the children vulnerable.  Not looking into the applicant’s recent situation can put their family’s life in threat.

    (Without alteration)

15. Dealing first with the ground as stated, it is not clear from the evidence that the Tribunal did not, in fact, discuss the possibility of its finding with the applicants at the hearing.  There is no transcript of the Tribunal’s hearing, and secondly, it is not clear to me and I am not satisfied that the Tribunal would, in any event, have had to disclose the possibility of its finding to the applicant.  This was a claim put forward by the applicant, and the Tribunal was simply deciding whether it accepted that claim or not.  The Tribunal was not obliged by any provision of the Act, in the circumstances of this claim, to reveal its thought processes or possible reasoning prior to its actual decision.

16. This was not an issue that might have taken the applicants by surprise or of which they were not aware because such as occurred in SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152.

17. As to the particulars in this ground, as I have noted above, it is clear from [58] and [59] of its reasons that the Tribunal did deal with the claim as made.  For those reasons, I reject ground 4. 

Certificate issued under s.438 of the Act

1. I turn then to the first of the separate issues that arise, being the certificate under s.438. The certificate in this case, which appears at page 229 of exhibit A[2], provides that “paragraph 438(1)(a) of the Migration Act 1958 applies to the information” because the disclosure of the information would be contrary to the public interest because it contained information relating to an “internal working document and business affairs”.

   [2] Court book filed 6 July 2017, Exhibit A to the proceedings.

2. I summarised the effect of s.438 of the Act and the relevant authorities in the decision of SZMJM v Minister for Immigration (No.2) [2017] FCCA 1260 at [9] – [16], as follows:

   9.The effect of s.438 of the Act is that, if the Minister has made a certification under s.438(1), the Tribunal may, if the Tribunal thinks it appropriate to do so, having regard to any advice given by the Secretary under sub-section (2), disclose any matter contained in the document, or the information, to the applicant: sub-s.438(3)(b). If the Tribunal does disclose the document or part of it to an applicant, it must give a direction under s.440 of the Act: s.438(4).

   10.In MZAFZ v Minister for Immigration & Border Protection (2016) 243 FCR 1; [2016] FCA 1081 (MZAFZ), Beach J held that certification by the Minister was only valid under s.438(1) if it was made on a necessary or sufficient basis for public interest immunity to arise in respect of the documents, whether at common law or under statute: [36]. The fact that the documents in this case related to “working documents and business affairs”, was not sufficient to give rise to a claim of public interest immunity in respect of those documents. For that reason, the certificate was not valid and s.438 did not operate in respect of them.

   11.The next issue is whether the invalidity of the certificate led to jurisdictional error in the Tribunal’s decision.

   12.In MZAFZ, Beach J held that there were two alternative errors: first, as the Tribunal had “acted on” the material, it followed a procedure contrary to law ([40]), failed to consider whether to make disclosure under s.424A or s.424AA ([41]-[42]); or whether the material was favourable to the applicant and disclosure should be made to the applicant ([43]). In the alternative, if the certificate were valid, the Tribunal denied the applicant procedural fairness by not revealing the existence of the certificate to the applicant ([50] - [53]).

   13.In respect of the finding of procedural fairness, his Honour found, at [60], that s.422B did not operate to exclude any obligation to give an applicant procedural fairness by:

   (a)disclosing the existence of the certificate;

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

   (c)as affording the applicant an opportunity to at least make submissions on the Tribunal’s approach under sub-ss.438(3)(a)(b);

   …

   14.That approach to s.422B was approved by the Full Court of the Federal Court in Minister for Immigration & Border Protection v Singh (2016) 244 FCR 305; [2016] FCAFC 183 (Singh) in respect of the analogous provision in s.357A of the Act.

   15.In Singh, the Court was considering a certificate purportedly issued under s.375A of the Act. Unlike s.438 of the Act, the effect of that provision, when it applies, is that the Tribunal must not disclose to the applicant or otherwise the material subject to the certificate.

   16.As in MZAFZ, the Court in Singh did not have before it the documents to which the certificate related. Nevertheless, it found at [42] that, because of the prohibition on disclosure required by s.375A of the Act, the existence of the certificate circumscribed the applicant’s participation in the review by the Tribunal. That circumscription was sufficient to enliven an obligation to afford procedural fairness. That obligation required the Tribunal to disclose the certificate to the applicant.

   (Emphasis in original)

3. It is accepted by the Minister, correctly, in my view, that the certificate was not valid because the fact that a document is an internal working document does not bring it, possibly, within the protection of s.438. The second question that arises then, is whether the Tribunal somehow acted upon the certificate.

4. The Tribunal dealt with the certificate in its reasons at [14] through to [19]. It came to the view, as I have, that the certificate was not valid. On the basis of that, and what it said at [19] about the information in it, which I will come to in due course, I conclude that the Tribunal did not act on the certificate. The Tribunal did not give it any force because it considered that it was invalid, and therefore, it was not bound by the certificate not to disclose the information. The reason the Tribunal did not disclose the information was described in [19], and that was because there was nothing in it which would “be the reason, or part of the reason, for affirming the decision under review ...”.

5. The Tribunal noted that, essentially:

   [19]... the material reiterates the claims made by the applicants and includes other matters relating to their residence in Australia and not relevant to this review. 

   The material to which the certificate related is contained at exhibit B in these proceedings.  I have had regard to that material, and I am satisfied that the Tribunal’s description of it is accurate.  There is no jurisdictional error arising as a result of the invalidity of the certificate.

6. I note, in particular, that even though this was not a circumstance in the cases to which I have referred, there was no unfairness in the failure by the Tribunal to provide the certificate to the applicants or to give them an opportunity to address the invalidity of that.  That is simply because the best outcome that they could have achieved would be to convince the Tribunal, if they had thought to do so, that the certificate was invalid.  That is the result they obtained, in any event, and so the opportunity could not have resulted in any more positive outcome.

7. The second issue that arose was the non-disclosure of the documents by the Tribunal. That fact did not arise because of the certificate. I am satisfied, in all of those circumstances, that there was no jurisdictional error arising from the existence and the invalidity of the certificate. It leads, however, to the point made in reply by the applicants, namely, that the Tribunal ought to have given them the opportunity to respond to the information. That, in other words, was a submission that the Tribunal breached s.424A of the Act.

8. Section 424A of the Act requires the Tribunal to give to the applicant clear particulars of any information that it considered “would be the reason, or a part of the reason, for affirming the decision that is under review”. It may be accepted that a breach of that provision may amount to jurisdictional error. However, what is important is that the obligation arises when the Tribunal considers that certain information “would be the reason, or a part of the reason, for affirming the decision that is under review”: see SZBYR v Minister for Immigration & Citizenship (2007) 81 ALJR 1190 at [17] – [18].

9. In this case, as is made explicit in [19] of the Tribunal’s reasons, the Tribunal did not consider that was the case.  Indeed, there is no question that it was right to consider that as there was nothing adverse in that material to the applicants, it being, as the Tribunal correctly said, a summary of the claims actually made by the applicants, albeit in connection with their earlier protection application.  For those reasons, there was no breach by the Tribunal of any obligation under sub-s.424A(1) of the Act and no jurisdictional error arises as alleged by the applicants at the hearing. 

Conclusion

1. I am not satisfied the Tribunal’s decision is affected by jurisdictional error and in those circumstances, the application must be dismissed.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Smith

Associate: 

Date:       12 October 2018