Asa16 v Minister for Immigration
[2019] FCCA 689
•26 March 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ASA16 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 689 |
| Catchwords: MIGRATION – Migration Act 1958 (Cth) – application for a Protection visa – Administrative Appeals Tribunal affirms decision of Delegate not to grant to applicant – applicant claimed decision of Administrative Appeals Tribunal affected by jurisdictional error – no basis to claims of jurisdictional error – application for judicial review dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 46A, 424 |
| Cases cited: Abebe v Commonwealth (1999) 197 CLR 510 |
| Applicant: | ASA16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 729 of 2016 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 29 May 2018 |
| Delivered at: | Sydney |
| Delivered on: | 26 March 2019 |
REPRESENTATION
| The Applicant appeared in person. |
| Counsel for the First Respondent: | Mr T. Galvin |
| Solicitors for the First Respondent: | Minter Ellison |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
The Application filed in this Court on 30 March 2016 and the Amended Application filed on 25 January 2017 are both dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 729 of 2016
| ASA16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant is a male citizen of Bangladesh aged 41 years, having been born on 29 October 1977.
By Application filed in this Court on 30 March 2016 and Amended Application filed on 25 January 2017, he seeks to quash and have re-determined the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 5 March 2016 affirming the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 1 October 2014 refusing to grant to him a Protection (Class XA) (Subclass 866) visa (Protection visa).
Background
The Applicant arrived in Australia on 6 December 2012 as an unauthorised maritime arrival. On 26 April 2013, the Minister under s.46A(2) of the Migration Act 1958 (Cth) (the Act) lifted the bar so as to permit him to apply for a visa of a specified class, which he did by making his application for the Protection visa on 28 May 2013.
Claims for Protection
In general terms, the Applicant claimed to fear returning to Bangladesh because he and his family were supporters of the Bangladesh Nationalist Party (BNP) and because he had borrowed a large sum of money from relatives in Bangladesh in order to come to Australia and has not been able to repay them. In response to questions 42 to 48 of his Protection visa application form the Applicant attached a Statutory Declaration declared on 16 May 2013 (Statutory Declaration), which made the following claims:
a)he comes from a poor family and moved to Dhaka in Bangladesh in 1998 in the hopes of earning a higher income to support his family, comprised of his wife and son, and he can only find work in low paying jobs;
b)his parents and siblings remain in Bangladesh;
c)in 2008, the Bangladesh Awami League (AL) came to power and he feared for his safety;
d)he was unable to vote in the last election because he was not registered to vote in Dhaka;
e)he fears voting or supporting a political party because of the risk of being persecuted by the opposing Government;
f)his family are supporters of the BNP and voted for the BNP in the 2008 election and he fears that he will be imputed with the same political opinion as his family members;
g)after the 2008 election his father and brothers were threatened by people from the AL because they did not support the AL;
h)his family had trouble having documents certified and issued by the local village elder because of their political opinion;
i)with a national election fast approaching in 2014 he feared that if he had remained in Bangladesh he would be harmed and could not provide for his family;
j)he borrowed money from his relatives to fund his trip to Australia and if he returns to Bangladesh without paying them he fears they will physically harm him;
k)if he returned to Bangladesh he would be seriously harmed and / or killed by the AL and its supporters because of his imputed political opinion of supporting the BNP;
l)he would be harmed by the Government, police and Government supporters and the authorities would not protect him;
m)if he returned to Bangladesh he would be subject to torture and cruel treatment by way of physical assault and shooting at the hands of the Government and physical assault by the relatives to whom he owes money;
n)he feared being subject to degrading treatment by these relatives in the form of verbal abuse and threats; and
o)he will not be safe in any part of Bangladesh and he can only live in his hometown and Dhaka as he cannot find work or the means to reside in any other part of Bangladesh.
Relevant Criteria and Law Applicable to Protection Visa Applications
A convenient summary of the relevant grounds and criteria for the grant of the Protection visa in this proceeding can be found in the judgment of Charlesworth J in AWA15 v Minister for Immigration [2018] FCA 604 at [5] – [7] as follows:
[5] The Minister is to grant a visa if satisfied that the visa applicant satisfies the relevant criteria. If the Minister is not so satisfied, he must refuse to grant the visa: s 65(1) of the Act. For the appellant to qualify for the grant of a protection visa it was necessary for the Minister to be satisfied that (among other things) the appellant fulfilled either the criterion in s 36(2)(a) of the Act (Refugee Criterion) or the criterion in s 36(2)(aa) of the Act (Complementary Protection Criterion).
[6]The Refugee Criterion requires that the Minister be satisfied that the visa applicant is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention, as amended by the Refugees Protocol, namely a person who:
... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.
[7]Relevantly, the Complementary Protection Criterion requires that the visa applicant be a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because:
... the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; ....
Decision of Delegate
The Applicant attended an interview before the Delegate on 26 August 2014.
The Delegate in his decision record first summarised the Applicant’s claims to protection and then recorded his questioning of the Applicant and the Applicant’s responses during the interview.
In short, the Delegate did not accept that the Applicant was a strong supporter of the BNP in Bangladesh or that he had been threatened or mistreated on this basis and noted that the Applicant had not claimed to have been a party member or to have been involved in any BNP party activities.
The Delegate found that the Applicant had not provided any compelling evidence to support his claim that he and his family had been subjected to violence and harassment from AL members on the basis of their support of the BNP and that the Applicant had been unable to adequately explain why he had waited until November 2012 to leave Bangladesh when the AL had been in power since 2008.
In summary, the Delegate did not accept that the Applicant was a credible witness, but concluded rather that he had fabricated claims for the purpose of pursuing a refugee claim in Australia and did not accept the following claims of the Applicant, namely:
a)that the Applicant is a BNP supporter and has been mistreated on this basis;
b)that the Applicant’s family are BNP supporters and have been mistreated on this basis;
c)that the Applicant’s family have been unable to have identity documents issued in their village because the village leader is from the AL;
d)that the Applicant has had trouble accessing employment or supporting his family in Bangladesh; or
e)that the Applicant has a large debt to relatives in Bangladesh and will be harmed by them if he returns.
The Delegate was not satisfied that Australia had protection obligations to the Applicant under either the Refugees Convention criterion or the complementary protection criterion and refused to grant to him the Protection visa.
Tribunal Decision
The Applicant lodged an application for merits review with the Tribunal on 10 October 2014 and gave a copy of the decision record of the Delegate to the Tribunal at that time.
The Applicant appeared before the Tribunal on 18 December 2015 to give evidence and present arguments with the assistance of an interpreter in the Bengali and English languages. The Applicant’s solicitor and registered migration agent appeared at the hearing by telephone.
At [4] – [5] of the Tribunal’s Decision Record (Decision Record) it recorded the Applicant’s claims as made in his Statutory Declaration.
At [1] and [6] – [17] of its Decision Record the Tribunal recorded claims made by the Applicant at his interview with the Delegate, by his solicitor in a written submission dated 16 December 2015 (solicitor’s written submissions) and at the Tribunal hearing.
At [18] the Tribunal recorded that at the hearing before it on 18 December 2015 the Applicant had confirmed that while he claimed that his family had problems after the 2008 election because they had supported the BNP, he himself had not faced any problems because he or his family supported the BNP. The Applicant repeated at the Tribunal hearing that he had not himself faced any problems, as further recorded at [25], [31] and [32].
From [18] – [31] of its Decision Record the Tribunal recorded its consideration and discussion of the Applicant’s claims with the Applicant at the Tribunal hearing and at [32] – [38] recorded its conclusions.
The Tribunal’s conclusions may be summarised as follows:
a)the case was unusual in that the Applicant had consistently said that he had not suffered problems in Bangladesh because of his own or his family’s support for the BNP. The Tribunal accepted that the Applicant’s family supported the BNP in the sense of voting for the BNP, like 23 million other people in Bangladesh in the 2008 election: see [32] – [33] of the Decision Record;
b)DFAT had assessed “that supporters or members of political parties in Bangladesh are not at risk of being arrested or living in fear of political violence on a day to day basis due to their political affiliations”: see [33] of the Decision Record;
c)on the basis of independent country information it did not find it “credible that the members of the [Applicant’s] family have been threatened, harassed or physically assaulted by people from the Awami League, given that on the evidence before me their political involvement is limited to voting for the BNP”: see [33] of the Decision Record;
d)the Applicant’s claim that his relatives would physically harm him if he does not repay the money he borrowed from them appeared “to be entirely speculative and lacking in any objective foundation” and the Tribunal did not accept “on the evidence before me that there is a real chance that [the Applicant] will be physically harmed or otherwise persecuted by his relatives because of the money he owes to them if he returns to Bangladesh now or in the reasonably foreseeable future”: see [36] of the Decision Record; and
e)recorded that the Applicant’s whole family and his wife and son remain in his village in Bangladesh, notwithstanding the Applicant’s claims that they had been having problems there: see [37] of the Decision Record.
In the result the Tribunal was not satisfied that the Applicant satisfied either the Refugees Convention criterion or the complementary protection criterion and affirmed the decision of the Delegate not to grant the Protection visa to the Applicant.
Grounds of Attack on Tribunal Decision in this Court
At the hearing in this Court the Applicant indicated that he wanted to rely on both his original Application and his Amended Application, rather than as had been assumed by the Minister and by myself, that the Amended Application replaced the original Application. In the result Mr Galvin, who appeared for the Minister, did not oppose the Grounds in both documents being considered by the Court. Further, as the Particulars to each Ground do not necessarily cohere to the actual Ground to which they are attached, I indicated to the parties that where appropriate I would take each of the Particulars as a separate Ground. For ease of reference I have renumbered sequentially the Grounds and Particulars in the original Application and the Amended Application, as follows below. Mr Galvin agreed that in the Grounds, where an assertion was made against the decision of the Delegate which this Court is not entitled to review, such complaint, where possible, ought to be taken as a complaint against the Tribunal.
I further note that at the hearing the Applicant was not able to make any meaningful oral submissions in support of a finding of jurisdictional error, but rather his submissions went to merits review which is not available in this Court.
In his original Application the Applicant relies upon the following Grounds:
1. The Refugee Review Tribunal made a jurisdictional error when it failed to consider each integer of his claim or failed to take into account the whole of the oral and written evidence in determining whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in the Refugee Convention in Bangladesh and if not whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to Bangladesh, there is a real risk that he will suffer significant harm.
2.The applicant claims that during the first interview with the Department and the Tribunal he and his representative provided a reasonable and possible oral and written evidence in support of his claim for the Protection Visa but the First Respondent and the Second Respondent did not accept as genuine. The applicant gave a solid evidence about his fear from the Awami League supporters and why he is targeted by the Awami League Party workers.
The applicant claims that he and his entire family worked for the BNP party in 2008 election and his whole family voted for BNP. His father and brother worked hard for BNP and because of that his father and brother was threatened by the Awami League Party worker. Awami League Party formed the Government and because their Party workers has more strength and power and they believe whatever they want they can do to the BNP party supporters. The Police or authorities will not go against the Awami League Party workers because that have support from the Government.
The applicant claims that the Tribunal did not understand the political environment of Bangladesh and made decision or looked all the oral and written evidence with closed mind. The applicant and his whole family lived in fear and the applicant decided to leave the country because he has not reasonable support for protection from local authorities. The applicant claims the Tribunal failed to account this matter and mistook the facts.
The applicant claims that the Tribunal failed to consider more recent information with regards to the attacks on the supporters of BNP party workers. The applicant claims that not considering the recent information about the atrocities committed by the Awami League is an error or a path leading to error, error is itself is failure to perform the statutory task imposed on the Tribunal by the Migration Act .
3. The Tribunal made a jurisdictional error when it discarded all the oral and written submission without giving any solid evidence of cumulative credibility concern in the finding of reasons.
4.In the decision the AAT found that there were inconsistency between he gave at the Tribunal hearing and his written claims. Applicant claims that the Tribunal misunderstood most of the facts forwarded by him and his representative in the Tribunal. The applicant was a truthful witness when he gave evidence to the First respondent and second respondent.
It is natural when the applicant is called for expansion of his grounds in hearing the applicant gives more evidence to justify his/ her claim and during that time it is natural that being a non-legal person speaks whatever comes in mind at the hearing time. The Tribunal totally misconstrued the facts. Whatever the applicant said in support of his claim was true. The Tribunal did not assess the applicant's evidence according to section 424 of the Migration Act.
5. The Tribunal failed to apply the correct test in relation to the complementary Protection Provision contained in section 36(2) (aa) of the Migration Act 1958. The Tribunal made a jurisdictional error when it did not follow Rules of Real Risk Test of persecution and harm.
6. The RRT ignored the relevant consideration related with complementary Protection set out in s 36(2) (aa).
The harm or the mistreatment feared by the applicant on return is for reason of one or more of five grounds recognized in the Refugee Convention. During hearing the applicant repeated several times that both the government and the Awami League Party workers were trying to harm him.
They were intimidating his family which might harm them and him. He said his life would be at risk.
The applicant sure that if he is compelled to go back to Bangladesh he will be killed by the Awami League supporters and harassed by them as it is happening now with all of them who returned to Bangladesh.
As his representative forwarded many documents of atrocities committed by the Awami League Supporters in Bangladesh, the Tribunal did not account as genuine. The applicant claims that his reason for fear comes under the Complementary Protection Provision.
Applicant's fear of harm is well-founded and that there is a real chance of harm if he is compelled to go back to Bangladesh.
In the Amended Application the Applicant relies on the following Grounds:
7. The Administrative Appeals Tribunal made a jurisdictional error when it failed to take into account relevant considerations and took into account irrelevant considerations.
8. The AAT Adopted hard attitude in assessing or examining the relevant facts presented at the time of hearing. The AAT made a jurisdictional error when it adopted critical attitude at the time of hearing.
9.Particulars: Subparagraph of 65 (1) (a) (ii) of the Migration Act 1958 requires the decision maker in respect of the applicant’s primary application for a protection visa to make determination as to whether criteria for the grant of the visa prescribed by the Act or the Regulations made there under were satisfied. The Tribunal failed to assess the relevant material presented on logically probative and relevant materials.
10. The applicant several times repeated that he and his family had faced intimidation and torture because he had voted for BNP. He had left Bangladesh in 2012 in order to support his family in Bangladesh because his family had been tortured and humiliated for political reasons.
11. The AAT mistook the fact when the applicant used word to help the family “financially”.
12. “He said that he had thought that he could save his family if he could bring them to a safer land” Green Book Page 208 Col -8.
13. The applicant’s intention behind using word financially means that one day he would be financially so solid that he will bring whole family out of danger (from Bangladesh) and set up every thing for his entire family as any Refugee has dream in his mind. The applicant’s main intention to flee from Bangladesh was to save his life and his family to save from the danger of Awami League’s torture.
14. Applicant claims that the relevant behind his departure from Bangladesh was to save himself and his family.
15. The applicant claims the Tribunal did not follow procedure of hearing in Judicial manner using relevant substance (oral and written evidence in support of claim for protection visa).
16.The Tribunal failed to hold that Department of Immigration accorded the applicant mere surface formalities (Departmental Interview) and left the decision maker free to make a completely arbitrary decision to refuse the application.
17. The applicant claims he was denied natural justice when the First Respondent completed a formalistic right to hearing (Departmental Interview at Detention Centre) but the procedure or conduct and substance (or mental processes) were not followed or implemented. It is believed that in the absence proper procedures, a decision maker’s perceptions of the merits of a case may prevent the substance from ever being properly ascertained.
18. Earlier, at the Departmental interview, concerns were made about applicant’s identity. As the First Respondent noted that “the applicant’s country of Birth and citizenship have been entered as Burma rather than Bangladesh in Department System… when asked post-interview whether he had ever been a citizen of a country other than Bangladesh, the applicant stated he had not (CLD 2014/15808195). As such, I find that the applicant’s country of Birth and / or citizenship having been entered as Burma rather than the Bangladesh in Department system is the result of an administrative error.” Green Book Page 112 Col 1-2.
19. The applicant was a truthful witness and whatever he said during hearing was a truth.
20.The Applicant has a legitimate expectation that the Tribunal would not put any adverse weight on this information (applicant’s two unverified identity documents, a birth certificate and a Citizenship Certificate) in assessing the applicant’s claim. But the Tribunal was confused when he said he was not registered as voter in election or did not involve in BNP as actively.
21.The applicant claims he was denied Procedural fairness when the AAT raised unnecessary doubt over the genuineness of asserted fear claimed by the applicant. The Tribunal discarded all of the relevant documents forwarded by the applicant in support of the claim.
22. The applicant claims that the AAT misconstrued the facts about the loan money. The applicant simply said that the applicant fears from the person from he borrowed Ten Lakh Taka. The applicant claims that when he was organising to pay the money to the Agent he took some money from a person and his parents raised the money after selling Village property. All together the agent wanted money immediately for organising his departure. The applicant has fear from the person from he borrowed the money and he is still not able to return all the money he borrowed. He never borrowed all the money from a person. The Tribunal has made his opinion that no body will give 10 Lakh Taka to a person like applicant.
23. The Tribunal’s findings are opinion is not logical. The applicant claims that the Tribunal made decision with pre occupied mind and assumption.
24.The Applicant claims that AAT’s finding of reasons are confused and test for persecution is not applied according to the rules of the Act and according to Complementary Protection Provisions under s.36(2)(aa) of the Act.
25.Particulars: The applicant fears of Persecution is based on his family’s support to BNP. He and his family are known to the local Awami League supporters because of his political activities during election time in 2008 election.
26. The applicant claims that the Tribunal undermined the threat from the danger of the Awami League Party supporters. The Awami League supporters many times came to his home and threatened him and his family. Hs family members were harassed many times and because of these reasons he left the village
27. The applicant claims that the Tribunal did not understand the reality of Bangladesh party politics. The Tribunal made preoccupied myth that only High Profile activists became victims of attacks by the Awami League supporters.
28. Applicant claims if he will go back to his country the AL supporters will kill him. The AL supporters inform the Authority in Bangladesh when he is going back. They can trace anywhere in Bangladesh and inform their people to locate the applicant and kill him. The applicant fears that the present Government will harm to the applicant as Returned Asylum Seekers. The Tribunal failed to understand the current political environment. Tribunal ignored the genuineness of relocation in the Bangladesh.
29. The applicant claims that the Tribunal unduly adopted harsh approach in assessing the fear of harm. The Tribunal did not follow the Rules of real risk Test of Persecution and harm. The AAT failed to account all the circumstances of fear and harms in which the applicant lived in Bangladesh. The AAT failed to give real reasons for not applying Complementary Protection Criteria under Paragraph 36 (2) (aa).
Consideration
Original Application
Ground 1
This Ground contends that the Tribunal “failed to consider each integer of his claim or failed to take into account the whole of the oral and written evidence”.
It is of course a well-established principle that an administrative decision-maker such as the Tribunal is required to deal with the case raised by the material or evidence before it, and where it fails to make a finding on “a substantial, clearly articulated argument relying upon established facts” that failure can amount to a failure to afford procedural fairness and a constructive failure to exercise jurisdiction: NABE v Minister for Immigration (No.2) (2004) 144 FCR 1 at 17 [55] per Black CJ, French and Selway JJ.
However, it is also apt to remember that the decision of an administrative decision-maker such as the Tribunal must be read fairly and as a whole, without a fine-tooth comb seeking to identify error. Further, an inference that such a body has failed to consider an issue is not always to be drawn from its failure to expressly deal with that issue in its Decision Record. As the Full Court of the Federal Court of Australia comprised of French J (as his Honour then was), Sackville and Hely JJ stated in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at 604 – 605 [46] – [47]:
[46]…The tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised “with an eye keenly attuned to error”. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.
[47]The inference that the tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected.
(emphasis added)
More recently the Full Court of the Federal Court of Australia comprised of Griffiths, White and Bromwich JJ in Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352 relevantly stated at [45] as follows:
[45] Subsequent cases have endorsed the principle that when a decision-maker is required by statute to consider a claim or other mandatory criteria, the decision-maker must engage in an active intellectual process directed at that claim or criteria (Lafu v Minister for Immigration and Citizenship (2009) 112 ALD 1 at [47]-[54] per Lindgren, Rares and Foster JJ; SZVVR v Minister for Immigration and Border Protection (2016) 71 AAR 11 at [24]-[26] per Collier J; Telstra Corporation Ltd v Australian Competition and Consumer Commission (2017) 344 ALR 511 (Telstra v ACCC) at [62] and [71] per Foster J; Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248 (Khadgi) at [57] per Stone, Foster and Nicholas JJ; AVU15 v Minister for Immigration and Border Protection [2017] FCA 608 at [10]-[11] per Bromberg J). This does not require the decision-maker to refer in the reasons for decision to every piece of evidence and every contention made by an applicant, and it may be that some material provided will not be relevant to the criteria. Also, in accordance with well-known authority, the reasons of the decision-maker should not be scrutinised “minutely and finely with an eye keenly attuned to the perception of error” (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [30] per Brennan CJ, Toohey, McHugh and Gummow JJ, as cited in Khadgi at [63] and Telstra v ACCC at [62]).
However, the Applicant has not identified the claim(s) or evidence alleged not to have been considered or which the Tribunal did not take into account. I have not for myself been able to identify any failures in this regard by the Tribunal. The solicitor’s written submissions set out the Applicant’s claims, commented on the Delegate’s decision and referred extensively to country information on Bangladesh. Those submissions are referred to and summarized by the Tribunal at [12] – [17] of its Decision Record. The same solicitor who was responsible for the solicitor’s written submissions attended the Tribunal hearing by telephone and his oral submissions at that time are summarized at [30].
In my view the Decision Record evidences that the claims as made by the Applicant were meaningfully considered by the Tribunal and Ground 1 fails to establish jurisdictional error.
Ground 2
Ground 2 complains that the Tribunal did not accept that the claims to protection made by the Applicant were “genuine”, approached its decision with a “a closed mind” and did not consider “recent [country] information”.
In the first instance this Ground seeks to invite a merits review of the findings of the Tribunal. It is well-established that the choice and interpretation of country information, including the weight that the Tribunal gives to such information, is part of the fact finding function of the Tribunal. Further, the weight that the Tribunal gives to the evidence before it is a matter for the determination of the Tribunal: see SZFWB v Minister for Immigration & Citizenship [2007] FCA 167 per Kenny J at [42] and SZQAU v Minister for Immigration & Citizenship [2011] FCA 1243 at [13] where Flick J said:
[13]The making of findings of fact, and the weight to be given to the evidence in the course of making those findings, are matters entrusted to the Tribunal alone.
Second, the Applicant had not claimed to the Tribunal “that he and his entire family worked for the BNP party in 2008 election and his whole family voted for BNP. His father and brother worked hard for BNP and because of that his father and brother was threatened by the Awami League Party…”.
In his Statutory Declaration the Applicant claimed that he would be imputed to have a political opinion in favour of the BNP because his family were supporters of the BNP: see [4(f)] above. The Applicant declared in his Statutory Declaration that he “was unable to vote in the last election because I was not registered to vote in Dhaka”: see [4(d)] above. He did not claim that he and his entire family had worked for the BNP, but rather he told the Tribunal that he had not been associated with any political activities in Bangladesh: see [25] of the Decision Record. At [26] the Tribunal recorded as follows:
[26] I asked [the Applicant] whether there were any other problems which he feared he would have if he went back to Bangladesh apart from his fear for his family and the problem of the money. [The Applicant] said that there could be a problem if he went back to Bangladesh as he was a supporter of the BNP. I put to [the Applicant] that so far as I understood his evidence the only support which his family gave to the BNP was that they voted for it. He had said that they were not involved in any activities and that he himself had not been involved in any activities: he did not even talk to his friends about politics. I put to him that almost 23 million people in Bangladesh had voted for the BNP at the election in 2008 and that it did not appear that his family members would be in any different position from anyone else who had voted for the BNP. [The Applicant] said that many people had been killed or taken away.
(emphasis added)
Then, at the commencement of [32] of its Decision Record the Tribunal stated as follows:
[32]The present case is unusual in that not only has [the Applicant] consistently said that he had no problems in Bangladesh because of his own or his family's support for the BNP but he has stressed that neither he nor his family were involved in any political activities in Bangladesh other than - in the case of his family - voting for the BNP. (As referred to above, [the Applicant] has said that he could not himself vote for the BNP because he was not enrolled to vote.)…
(emphasis added)
Third, there is no evidence at all that the Tribunal had a “closed mind” and was thereby guilty of prejudgement which, if it were established, would constitute actual bias. Actual bias was described by Gleeson CJ and Gummow J in Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 532 [72] as follows:
[72]The state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented.
There is nothing in the Decision Record which would indicate that the Tribunal member had prejudged the Applicant’s claims adversely to him and he has not tendered a transcript of the Tribunal hearing to establish any bias of the Tribunal member, although he accepted that the responsibility lay upon him to tender such a transcript under consent order 2 of 22 April 2016 in this Court.
Finally, the Applicant has failed to establish that the Tribunal relied on stale country information. It is of course the case that the Tribunal should generally have regard to the most recent country information of which it becomes aware, because it is a principle of law generally applicable to public administration that a decision-maker is to make his or her decision on the basis of the most current material available at the time the decision is made and it will often be jurisdictional error if the Tribunal does not have regard to the most current material: SZTJQ v Minister for Immigration & Citizenship (2008) 172 FCR 563.
However, the Decision Record evidences that it considered a range of country information, including the country information submitted by the solicitor for the Applicant and importantly the DFAT country report for Bangladesh dated 20 October 2014. The Applicant has not established that there was any DFAT country report on Bangladesh more recent than the DFAT country report which it considered, and this Ground fails to establish jurisdictional error.
Ground 3
This Ground seems to contend for merits review which is not available in this Court in asserting that the Tribunal did not have “any solid evidence” to justify credibility concerns in its Decision Record.
This complaint fails to establish jurisdictional error. As Heydon J stated in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at 631 [76]:
[76] It was for the first respondent to establish his claim, not for the Tribunal to disprove it…
Nor does the Tribunal have to possess rebutting evidence before holding that a particular assertion is not established: see Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at [7] per Heerey J.
It was primarily the responsibility of the Applicant to place before the Tribunal in this case such material and evidence as he thought supported the claims he had made. It was then the task of the Tribunal to resolve those claims. As was said by Gummow and Hayne JJ in Abebe v Commonwealth (1999) 197 CLR 510 at 576 [187]:
[187] … The proceedings before the Tribunal are inquisitorial and the Tribunal is not in the position of a contradictor. It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason. The Tribunal must then decide whether that claim is made out.
Further and in any event the Tribunal did not make any particularly critical credibility findings against the Applicant. Rather, the fundamental basis of the rejection of the Applicant’s claims was its consideration of country information as to the position in Bangladesh, including the fact that almost 23 million people in Bangladesh had voted for the BNP in the 2008 election and the Applicant’s own consistent evidence, recorded at [32] of the Decision Record, “that he had no problems in Bangladesh because of his own or his family’s support for the BNP”.
Ground 3 fails to establish jurisdictional error.
Ground 4
This Ground fails. It merely argues with the decision and findings of the Tribunal, and the reference in this Ground to s.424 of the Act is inapposite in this case to a contention of jurisdictional error.
Ground 5
This Ground also fails because it is clear from the Decision Record of the Tribunal that it had proper regard to the correct test in relation to the Refugees Convention criterion and the complementary protection criterion.
At [2] of its Decision Record the Tribunal refers to its summary of the relevant law as set out in Attachment A to the Decision Record. The Tribunal also notes at [2] the general terms of the Refugees Convention criterion and the complementary protection criterion and Attachment A sets out the relevant law in some detail. At [38] the Tribunal explicitly found that under the relevant law it was not satisfied that the Applicant was a person to whom Australia owed protection obligations.
Ground 5 fails to establish jurisdictional error.
Ground 6
Ground 6 fails to establish jurisdictional error.
First, the Tribunal did not ignore or misinterpret the complementary protection criterion provided for by s.36(2)(aa) of the Act.
Second, the Decision Record does not evidence that at the Tribunal hearing the Applicant claimed “that the Government and the Awami League Party workers were trying to harm him”, but rather:
a)“that he himself had not faced any problems because he or his family supported the BNP”: see [18] of the Decision Record;
b)that during the period when he lived and worked in Dhaka from 1998 until 2012, he told the Tribunal “that he had not faced any problems because he had not been associated with political activities”: see [25] of the Decision Record; and
c)that on his own evidence nothing had ever happened to him in Bangladesh: see [31] and [32] of the Decision Record.
Otherwise this Ground merely argues with the findings of the Tribunal and fails to establish jurisdictional error.
Amended Application
Ground 7
This Ground basically repeats Ground 1 and fails for the same reasons given above.
The Applicant has failed to identify, let alone establish, that the Tribunal took into account irrelevant considerations or failed to take into account relevant considerations or claims.
Ground 8
This Ground may replicate Ground 2 in contending that the Tribunal had “a closed mind”. In any event, there is no evidence that any attitude of the Tribunal was, as the Applicant claims, anything but open and the Decision Record evidences that the Tribunal gave proper and meaningful consideration to the Applicant’s claims.
Ground 8 fails to establish jurisdictional error.
Ground 9
This Ground fails to establish jurisdictional error. The materials considered and assessed by the Tribunal were basically the claims and submissions of the Applicant, and in my view they were meaningfully considered.
Grounds 10, 11, 12, 13 and 14
The first sentence of Ground 10 is factually incorrect. In his Statutory Declaration the Applicant had said that he was unable to vote in the 2008 election because he was not registered to vote in Dhaka. Notwithstanding this evidence, the Applicant apparently claimed in the interview with the Delegate “that he himself had faced intimidation and torture because he had voted for the BNP and because of his loyalty to the BNP”, as noted at [7] of the Decision Record of the Tribunal.
However, at [19], [22] and [32] of its Decision Record the Tribunal recorded the Applicant’s own evidence provided at the Tribunal hearing that his name had not been on the voter list in Dhaka or in his village, that he had not been enrolled to vote and that he had not been able to cast a vote for the BNP. Ground 10 otherwise merely reproduces the first three sentences of [8] of the Decision Record.
Ground 12 merely reproduces the third sentence of [8] of the Decision Record.
Nothing in any of these Grounds has a tendency to establish that the decision of the Tribunal is affected by jurisdictional error and all fail.
Ground 15
If this Ground means to complain that the Tribunal did not operate as a court of law, it fails because the Tribunal is an administrative tribunal which is entitled to follow an inquisitorial procedure and not the usual judicial process of a court of law. As Middleton J said in Pham v Secretary, Dept of Education, Employment and Workplace Relations [2009] FCA 1310 at [33]:
[33] It is well established the Tribunal conducts its review as an administrative decision by way of a hearing de novo. The Tribunal is not a court of law exercising the judicial power of the Commonwealth. The Tribunal makes its own decision on whatever material is before it at the time when it makes the decision. The Tribunal stands in the shoes of the original decision-maker.…
Otherwise, this Ground fails to establish that the Tribunal did not follow anything other than its conventional process in affording procedural fairness and natural justice to the Applicant.
Grounds 16 and 17
I have no power to review the Delegate’s decision, and in any event the Applicant was legally entitled to a de novo hearing before the Tribunal and he took advantage of that right and was accorded a hearing where the Tribunal considered afresh his application for the Protection visa and provided him with a real and meaningful opportunity to give evidence, present arguments and answer questions. Even if the decision of the Delegate had been legally ineffective and invalid, which is not the case here, any such invalidity would have been rendered irrelevant because the decision of the Tribunal would have superseded and replaced the decision of the Delegate and cured any invalidity: Zubair v Minister for Immigration and Multicultural Affairs (2004) 139 FCR 344 and Wu v Minister for Immigration and Ethnic Affairs (1994) 48 FCR 294.
These Grounds fail to establish jurisdictional error.
Ground 18
This Ground makes an attack on the decision of the Delegate which this Court is not entitled to review and which is irrelevant to the hearing before the Tribunal and does not establish that the Tribunal’s decision is affected by jurisdictional error.
Ground 19
This Ground does not constitute a meaningful assertion of jurisdictional error and fails.
Ground 20
Ground 20 refers to three untranslated documents which are referred to at [10], [23] and [34] of the Decision Record and which are marked in English as being the Applicant’s birth certificate, school certificate and citizenship certificate.
At the hearing in this Court the Applicant stated that these were the only three documents that were ever given on his behalf to either the Department of the Minister or the Tribunal. The Applicant’s age was never in dispute and the Tribunal accepted that he was a citizen of Bangladesh and recorded his educational claims at [3] of its Decision Record. The Tribunal placed never placed any “adverse weight on this information … in assessing the applicant’s claims”.
This Ground fails to establish jurisdictional error.
Ground 21
First, “all of the relevant documents forwarded by the applicant in support of the claim” amounted to the three documents referred to at [68] above and they were of no particular corroborative weight in support of the Applicant’s claims. Further, they were not “discarded” or criticized by the Tribunal. Otherwise this Ground merely argues with the findings of the Tribunal.
This Ground fails to establish jurisdictional error.
Ground 22
It is difficult to understand what this Ground is meant to convey. In his Statutory Declaration the Applicant had claimed to fear harm from the relatives from whom he had borrowed to fund his trip to Australia: see [4(j)] above.
This claim was repeated before the Delegate, who did not accept that he had a debt to family members in Bangladesh or that he would be harmed for this reason if he returned to Bangladesh. The Delegate found that the evidence provided by the Applicant in this regard “was vague and insubstantial”.
The claim was repeated in the solicitor’s written submissions and was recorded at [5], [11] and [24] of the Decision Record. At [28] – [29] the Tribunal recorded its questioning of the Applicant on this claim, and at [30] it recorded the Applicant’s solicitor’s submissions on this issue. The Tribunal then recorded its rejection of the claim at [35] – [36].
Otherwise, this Ground cavils and argues with the Tribunal’s findings and does not establish any jurisdictional error in relation to the Tribunal’s consideration of this claim.
Grounds 23, 24, 25, 26, 27, 28 and 29
These Grounds also fail to establish jurisdictional error. They either argue with the decision of the Tribunal and invite merits review, or repeat Grounds which I have already dealt with above.
Conclusion
In my view the Applicant has failed to establish that the decision of the Tribunal is affected by jurisdictional error and the original Application and the Amended Application are to be dismissed.
I certify that the preceding seventy-eight (78) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Associate:
Date: 26 March 2019
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