ATG16 v Minister for Immigration
[2017] FCCA 1505
•30 June 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ATG16 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 1505 |
| Catchwords: MIGRATION – Application for Protection (Class XA) visa – whether Tribunal discharged its obligations to undertake a review of the delegate’s decision refusing visa – whether Tribunal denied the applicant procedural fairness by not identifying the issues arising in relation to the decision under review – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), s.425(1) |
| Cases cited: BYF15 v Minister for Immigration and Border Protection [2016) FCA 774 S1925 of 2003 v Minister for Immigration & Citizenship [2008] FCA 246 |
| Applicant: | ATG16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | BRG 298 of 2016 |
| Judgment of: | Judge Jarrett |
| Hearing date: | 3 August 2016 |
| Date of Last Submission: | 3 August 2016 |
| Delivered at: | Brisbane |
| Delivered on: | 30 June 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr Hodge with Mr Byrne |
| Solicitors for the Applicant: | O’Reilly Lilicrap |
| Counsel for the Respondents: | Ms Wheatley |
| Solicitors for the Respondents: | Clayton Utz |
| The Second Respondent entered a submitting appearance |
ORDERS
The amended application for review filed 23 June, 2016 be dismissed.
The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $7,206.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 298 of 2016
| ATG16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for judicial review of a decision of the Administrative Appeals Tribunal that affirmed a decision of a delegate of the first respondent to refuse the applicant a Protection (Class XA) visa.
The applicant argues that the Tribunal fell into jurisdiction error because it did not:
a)put to him what he says were the key issues upon which the Tribunal based its findings; and
b)provide him with any, or any sufficient, opportunity to respond to those issues.
In doing so, the applicant argues, the Tribunal denied him procedural fairness and breached s.425(1) of the Migration Act 1958 (Cth) by failing to properly invite the applicant to appear before it to give evidence and present arguments on those issues.
The first respondent opposes the application. The second respondent entered a submitting appearance.
In my view the Tribunal discharged the obligation cast upon it by s.425(1) of the Act. For the reasons that follow the application must be dismissed.
Background
The applicant is a citizen of Bangladesh who arrived in Australia as an unlawful maritime arrival on 28 February, 2013.
On 20 June, 2013 the applicant applied for a Protection (Class XA) visa. On 5 September, 2014 a delegate of the first respondent refused that application. Because of the ground of review pursued by the applicant in this Court, it is necessary to set out the delegate’s decision in some detail.
The applicant claimed that he left Bangladesh because he was suffering financial hardship. That is what he told the first respondent’s representative when he was first interviewed. Subsequently, he said that he feared persecution because of his political opinion on the basis that;
a)he had an association with, supported and was involved with the Bangladesh National Party;
b)his father, uncle and cousins were all very involved with the Bangladesh National Party, with his uncle being the Chairman for the Bangladesh National Party in his village and his father also being a prominent member;
c)members of the Awami League, which is the current government and are the opposition party to the Bangladesh National Party, would harm him;
d)the Awami League falsely accused him of committing a murder as the Awami League:
i)did not want him to be a supporter of the Bangladesh National Party and wanted to blackmail, control or manipulate his efforts with the Bangladesh National Party;
ii)wanted to recruit him and create conflict, dissention and disruption within the Bangladesh National Party in his village and within a prominent Bangladesh National Party family;
iii)wanted to damage the reputation of the Bangladesh National Party in his village;
iv)wanted to cause problems for the applicant’s family and weaken the support for the Bangladesh National Party in the village. It was a strategy to erode the support base for the Bangladesh National Party.
e)The Awami League falsely accused him of fighting with police in the village, that accusation being made after he had left Bangladesh.
During the applicant’s interview with the delegate, the applicant expanded on some of those claims and in particular included a claim that he was “with the Chhatra League Student Wing of the BNP”. He also recanted his claim that he was involved with the Bangladesh National Party and said that he was involved with the Chahatra League of the BNP. He said “I do the student wing of the BNP”. According to the delegate’s reasons, however, the applicant did not know what the acronym “BNP” stood for.
The first respondent’s delegate rejected the applicant’s claims in their entirety. In particular, the delegate:
a)rejected the applicant’s assertion that he was “actively involved” with the “Chhatra League for the BNP”;
b)considered that the applicant’s inability to articulate pertinent information about the Bangladesh National Party and his claims indicated that the applicant had fabricated his claims. This appeared to be linked to the applicant’s claims that he and his family were “staunch BNP supporters and [the applicant] had a central role within the Chhatra League of the BNP”;
c)on the basis of the applicant’s “general credibility”, was not satisfied that the applicant’s uncle, or his brothers were members of the Bangladesh National Party or were involved with the Bangladesh National Party as claimed. On that basis, the delegate considered that the applicant had no involvement with the Bangladesh National Party as he had claimed; and
d)was not satisfied of the applicant’s family members’ involvement with the Bangladesh National Party and was not satisfied that the applicant was considered to be a Bangladesh National Party supporter.
For these reasons, the first respondent’s delegate determined that the applicant did not have a real chance of facing persecution in Bangladesh.
On 6 October, 2014 the applicant applied for a review of the delegate’s decision by the Administrative Appeals Tribunal. That application was heard on 30 September, 2015. The applicant appeared at the hearing with the assistance of an interpreter in the Bengali and English languages. He was represented by a registered migration agent who appeared by telephone link.
The applicant’s claim before the Tribunal to attract Australia’s protection obligations rested in his claim that he has a well-founded fear of persecution by reason of his political opinion and status as an asylum seeker if he were to be returned to Bangladesh.
In addition to the matters that were raised with the first respondent’s delegate and dealt with by the delegate, the applicant raised a number of other matters with the Tribunal. They were that:
a)his father was under constant pressure by Awami League supporters such that he will not leave the house at night for fear of being attacked;
b)his father was extorted by Awami League supporters;
c)false law suits had been made against his father;
d)false law suits had been made against his uncle; and
e)his uncle had defected to the Awami League.
The applicant claimed that he first became involved in the Bangladesh National Party through its student wing, Chhatra Dal and that his uncle was a long standing village chairman of the party. He claimed he later joined Chhatra League, the student organisation associated with the Awami League, because of his then girlfriend’s involvement in that party. He claimed that after he left his girlfriend, he returned to the party his family supported, that is the Bangladesh National Party, although he never signed any documentation or paid any membership fee. He claimed to fear harm from Awami League members by reason of his and his family’s political opinion and support of the Bangladesh National party. He further claimed to fear harm from the Bangladesh authorities because of his status as an asylum seeker.
In support of his claims the applicant asserted that members of the Awami League had falsely accused him of murder and made false charges against him for fighting police. He claimed that if he returned to Bangladesh, he would be arrested. He claimed that Awami League members had extorted his father for money and that the Bengali authorities had beaten his father in their efforts to locate the applicant. He claimed that both his uncle and his father were under constant pressure by supporters of the Awami League to join the party, which his uncle ultimately did and that they too had false law suits brought against them.
The applicant further claimed that there was a real chance of him being harmed on his return to Bangladesh because he had applied for asylum. In support of this claim the applicant relied upon reports containing comments of the Prime Minister of Bangladesh made in May 2015, referring to those who illegally migrated to other countries as “mentally sick,” “tarnishing the international reputation of Bangladesh,” and stating that they “should be punished.”
The Tribunal expressed in its decision that it had some broad concerns with the applicant’s credibility and formed the view that his claims were fabricated in order to create a profile upon which to apply for protection. The Tribunal noted that the applicant’s evidence was often inconsistent and that his attempts to explain why that was the case were not persuasive.
The Tribunal did not accept that the applicant was a member or supporter of the Chhatra Dal, the Chhatra League or the Bangladesh National Party, nor did it accept that members of the applicant’s family were supporters of the Chhatra Dal, the Chhatra League or the Bangladesh National Party. It therefore did not accept that his uncle was a chairman of the Bangladesh National Party.
The Tribunal did not accept that the applicant’s father or uncle were pressured by the Awami League or had false law suits against them. It did not accept that the applicant’s uncle was now a member of the Awami League or that his father had suffered harm at the hands of the Bengali authorities. The Tribunal was concerned that these claims had been raised for the first time at the Tribunal’s hearing.
The Tribunal had regard to country information available to it which suggested that fraudulent documentation in Bangladesh was prevalent and concluded that the court documents provided by the applicant were not genuine. The Tribunal also had regard to country information which indicated that there was corruption in the Bangladesh court system and instances of persons laying false charges. The Tribunal found it implausible that the Awami League would target someone with such a low political profile as the applicant in such an extreme way as to raise false murder charges against him. The Tribunal therefore did not accept that the applicant had false charges against him for murder and fighting with police.
The Tribunal was not satisfied that the evidence before it suggested that failed asylum seekers retuning to Bangladesh were being punished by the authorities.
The Tribunal ultimately found that there was only a remote or speculative, and therefore not a real chance that the applicant would face persecution by reason of his political opinion or his status as a failed asylum seeker if he returned to Bangladesh.
Given that the test for establishing a well-founded fear of persecution imposes the same standard as the real risk test of significant harm, the Tribunal was not satisfied that the applicant faced a real risk of significant harm if he were to return to Bangladesh.
On 7 March, 2016 the Tribunal affirmed the decision of the delegate not to the grant the applicant a Protection (Class XA) visa.
The Grounds of Review
The applicant pursues only one ground of review as set out in his amended application for review filed on 23 June, 2016. The applicant argues that the Tribunal denied him procedural fairness and did not properly invite him to be heard, in breach of s.425(1) of the Migration Act. His ground of review, which includes extensive particulars, is in the following terms:
1. The Second Respondent failed to afford procedural fairness to the Applicant.
Particulars
a. The Second Respondent failed to clearly put a key issue to the Applicant and thereby failed to allow the Applicant to be heard as to that issue.
b. The critical findings in the reasons of the Second Respondent were that, contrary to the Applicant’s evidence, the Applicant was not at any time a member or supporter of the Bangladesh National Party (BNP), Chhatra Dal or the Chhatra League and the Applicant’s family are not supporters of the Bangladesh National Party ([41] Reasons).
c. Although the Applicant was questioned as to his formal memberships, and the times at which he supported different groups, it was not clearly put to the Applicant in the hearing before the Second Respondent that a key issue was whether he had supported any of the Bangladesh National Party (BNP), Chhatra Dal or the Chhatra League at any time.
d. In the hearing before the Second Respondent, the Second Respondent put to the Applicant that he had doubts about the Applicant’s involvement in any political activities while at school but indicated a willingness to accept that the applicant and his family were supporters of Bangladesh National Party, with a caveat that the Second Respondent was “not sure yet”, but without expanding upon, or seeking a response as to, that caveat.
e. The Second Respondent did not clearly put to the Applicant that as the Applicant had given limited evidence about his role with Chhatra Dal and Bangladesh National Party, the Applicant was at risk of a finding that this lack of evidence undermined his credibility and might lead to a finding that he had no role with those organisations.
f. In the premises, the Respondent did not properly and clearly put to the Applicant the key issue of whether the Applicant had ever supported, at any time, any of the Bangladesh National Party, Chhatra Dal or the Chhatra League, and whether his family did or had ever supportedthe Bangladesh National Party.
g. Therefore, the applicant was not properly invited to be heard on this key issue, contrary to section 425(1) of the Migration Act 1958 (Cth).
Section 425 of the Migration Act provides:
(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
(2) Subsection (1) does not apply if:
(a) the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it; or
(b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or
(c) subsection 424C(1) or (2) applies to the applicant.
(3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.
In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152, the High Court discussed the phrase “the issues arising in relation to the decision under review” in s.425(1) of the Act and said at [34] – [36] (footnotes omitted, my emphasis):
34. Those issues will not be sufficiently identified in every case by describing them simply as whether the applicant is entitled to a protection visa. The statutory language “arising in relation to the decision under review” is more particular. The issues arising in relation to a decision under review are to be identified having regard not only to the fact that the Tribunal may exercise all the powers and discretions conferred by the Act on the original decision maker (here, the Minister’s delegate), but also to the fact that the Tribunal is to review that particular decision, for which the decision maker will have given reasons.
35. The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are “the issues arising in relation to the decision under review”. That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision maker identified as determinative against the applicant.
36. It is also important to recognise that the invitation to an applicant to appear before the Tribunal to give evidence and make submissions is an invitation that need not be extended if the Tribunal considers that it should decide the review in the applicant’s favour. Ordinarily then, as was the case here, the Tribunal will begin its interview of an applicant who has accepted the Tribunal’s invitation to appear, knowing that it is not persuaded by the material already before it to decide the review in the applicant’s favour. That lack of persuasion may be based on particular questions the Tribunal has about specific aspects of the material already before it; it may be based on nothing more particular than a general unease about the veracity of what is revealed in that material. But unless the Tribunal tells the applicant something different, the applicant would be entitled to assume that the reasons given by the delegate for refusing to grant the application will identify the issues that arise in relation to that decision.
Counsel for the applicant point out in their submissions that at the Tribunal’s hearing, the applicant was asked questions about various matters and in particular:
a)the timing of the applicant’s first involvement with the “Chhatra League” and the “Chhatra Dal”;
b)perceived inconsistencies in respect of the applicant’s involvement with either of the Bangladesh National Party, Chhatra League or Chhatra Dal and previous references to only the Bangladesh National Party;
c)his uncle’s role in the Bangladesh National Party;
d)the political support of the applicant’s former girlfriend;
e)why the applicant did not join the Chhatra Dal earlier, joining as a nonstudent and the applicant’s formal membership of the Chhatra Dal or the Bangladesh National Party.
The applicant also points out that during the course of the hearing, the Tribunal member said to the applicant:
I have some doubts about your involvement in any political activities while at school…
and
I am more willing to accept that you and your family are supporters of the Bangladesh National Party, and on the basis of the surrounding country information, it may be plausible that, as supporters of the Bangladesh National Party, your family do have some conflict with local supporters of the Awami League, but I am not sure yet.
and
After considering all of the evidence, if I do finally decide that there is some local conflict between you, your family and the local supporters of the Awami League, it seems to me that it may be reasonable for your to relocate to Chittagong to avoid any localised risk in your village ...
However, the applicant says that:
…it was not put to the Applicant at the hearing that:
(a) the very fact that the Applicant was a supporter of or involved with any of the Chhatra Dal, Chhatra League or the Bangladesh National Party was a key issue; or
(b) the very fact that members of the Applicant’s family were supporters or members of the Bangladesh National Party was a key issue.
The applicant contends that the Tribunal was obliged to put to him that:
a)his and his family’s involvement with certain political organisations were issues arising under the decision in review; and
b)the applicant’s lack of evidence on these matters would lead to a finding that the applicant and his family had no role with such organisations.
He suggests further that the transcript of the Tribunal’s hearing reflects that the Tribunal was proceeding on the basis that those matters were not issues before it. He argues that the transcript shows that the Tribunal was concerned with other matters related to the application, “such as whether or not it was plausible that the Awami League would target someone with the level of involvement the applicant had with the Bangladesh National Party. This line of reasoning even proceeded on the assumption that the applicant had such involvement with the Bangladesh National Party”.
However, the applicant’s submission must be rejected.
The starting point is the decision of the delegate and the matters considered dispositive by the delegate in that decision. If different dispositive issues than those considered by the delegate arise, the Tribunal is obliged to raise them with the applicant: SZBEL at [35].
Before the delegate, the only Convention based reason advanced by the applicant said to give rise to his well-founded fear of persecution was his political opinion. His case in support of that reason was that he and his family were involved in the Bangladesh National Party at one time or another and in different ways. The delegate did not accept any of the applicant’s claims or evidence and was not satisfied that either he or his family were supporters of the Bangladesh National Party or had been involved in political activities as he had alleged. That he or his family were not a member, supporter or part of the Bangladesh National Party was clearly an issue that arose in respect of the delegate’s decision because it was a dispositive issue before the delegate.
They were the issues that were of interest to the Tribunal as well. The applicant relied upon the same evidence that was put before the delegate. He also added more evidence and information. There was no obligation on the Tribunal to “put” the applicant on notice of what it was that the Tribunal considered dispositive unless it was different to the matters that arose before the delegate. The Tribunal was not required to “put” particular questions to the applicant about those matters. It was for the applicant to put before the Tribunal, in the way in which it sought fit, the evidence and materials upon which he wished to rely in support of his claims. The applicant was not entitled to be told that the Tribunal did not accept his claims or his evidence concerning his or his family’s involvement in politics in Bangladesh.
To the extent that the applicant argues that the Tribunal misled the applicant by suggesting (in the passages that I have set out above from the transcript of the Tribunal’s hearing) that it was “more willing to accept” that the applicant and his family were supporters of the Bangladesh National Party, that willingness was not unqualified. There was no basis for the applicant or his advisors to think that the Tribunal had accepted his evidence about those matters.
To the extent that the applicant argues that the Tribunal was obliged to “put” its concerns and its thoughts, the authorities are against the applicant. In Abebe v The Commonwealth (1999) 197 CLR 510 at [187] Gummow and Hayne JJ observed:
[187] The want of procedural fairness was said to lie in the Tribunal not putting to the Applicant any suggestion that her story of detention and rape was untrue. Framed in this way, the submission may, perhaps, assume that proceedings before the Tribunal are adversarial rather than inquisitorial or that in some way the Tribunal is in the position of a contradictor of a case being made by the Applicant. Such assumptions, if made, would be wrong. 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.
Whilst it is correct to say that the issues arising in relation to the decision under review will not simply be “whether the applicant is entitled to a protection visa”, so too, the Tribunal is not required to “…give to an applicant a running commentary on his prospects of success and warning him of every reason why his claims might not be thought sufficient to justify the relief sought”: S1925 of 2003 v Minister for Immigration & Citizenship [2008] FCA 246 at [24].
As the first respondent argues, the Tribunal explored many issues around and concerning the applicant’s claimed political opinion or involvement. There was nothing remarkable about the questions asked by the Tribunal of the applicant about those matters.
The applicant contends that the delegate’s decision dealt only with the applicant’s and his family’s involvement with the Bangladesh National Party. His counsel’s submissions contend that the delegate’s decision contained no finding that the applicant had no role or involvement with the Chhatra Dal or the Chhatra League.
To the extent that the delegate’s decision does not refer to the Chhatra Dal, the submission is correct. The applicant made no claims before the delegate about involvement with the Chahatra Dal. Indeed, there is no mention of any claims regarding the Chhatra Dal or the Chhatra League in the applicant’s initial statement. However, the applicant did make claims about involvement with the Chhatra League during his interview with the delegate (and not before). Ironically, his claims of involvement with the “Chhatra League Student Wing of the BNP” confused the various bodies. It was uncontentious before me that Chhatra Dal is the student wing of the Bangladesh National Party and the Chhatra League was the student wing of the Awami League.
The delegate’s decision expressly dealt with the applicant’s claims to have been a member of or involved in the “Chhatra League Student Wing of the BNP”. The delegate rejected that claim. It is not right to say that the delegate made no finding about that claim. It was a matter of critical significance to the applicant’s claims because his claim that he was “involved” with the Bangladesh National Party derived from his claimed involvement with its student wing, and organisation he nominated as being named “Chhatra League”.
Before the Tribunal he expanded the claims that he made about the Chhatra League in a seemingly inconsistent way to the way that claim was advanced before the delegate. He claimed before the Tribunal that he joined the Chhatra League due to his girlfriend’s association with the Awami League and its student wing. That was a claim that he advanced for the first time in his further statement provided to the Tribunal, as were his claims of his uncle’s departure from the Bangladesh National Party and further harm claimed by his father.
I accept the first respondent’s submission that s.425(1) of the Act does not require a Tribunal to identify such new matters as ‘ issues arising in respect of the decision under review. The first respondent directs my attention to BYF15 v Minister for Immigration and Border Protection [2016) FCA 774 at [ 46]:
[46] The second issue is whether the first Applicant’s claim that his daughter had a hole in her heart became a dispositive issue requiring a second invitation to hearing, given that the issue was raised after the hearing. As the Minister submits, s425 requires the Tribunal to disclose to an applicant additional issues on the review which were not live before the delegate: SZBEL v Minister f or Immigration and Multicultural and Indigenous Affairs [2006] HCA 63: (2006) 228 CLR 152 at 163 [38]. However, the Tribunal does not have a duty to inform an applicant that it may make different findings because the evidence on which the Applicant now relies is different from that before the delegate or because new claims are advanced before the Tribunal: SZHBX v Minister for Immigration and Citizenship [2007] FCA 1169 (SZHBZ) at [14] (Edmonds J) (Application/or special leave to appeal to the High Court refused: [2008] HCASL 131). Nor does the Tribunal have a duty under s425 to inform an applicant that because different claims are made, it will be required to consider whether the evidence supports the new claims: SZHBX at [14]. As such I accept the Minister’s submission that there is no arguable case/or failure by the Tribunal to comply with s425 of the Act.
The principles set out in that paragraph have application here. The Tribunal was not obliged to raise with the applicant the fact that because he had made new claims or advanced new evidence, the Tribunal would consider those matters and make findings about them. It was not obliged to inform him that it was not required to accept his new claims and evidence uncritically. Any of the new matters raised by the applicant for the first time before the Tribunal did not create an obligation on the Tribunal to raise those matters, and what it thought of them, with the applicant and his advisors.
The applicant, by his counsel, submits that whilst the Tribunal “touched on matters relating to the formal membership of organisations” it did not “warn the applicant that his ‘support’ or ‘involvement’ with such organisations was in issue”. Further, he argues that because the Tribunal did not put its concerns about those matters to him, it did not “alert him that a critical issue was his very involvement with either of the Chhatra Dal or the Chattra League, although these were critical finings in the reasons.” However, the applicant’s case before the delegate was that he was a member of, or involved in, the “Chhatra League Student Wing of the BNP”. The delegate’s decision about that matter was critical to the rejection of the visa application. It was plainly an issue that arose in relation to the decision under review and about which the Tribunal needed to give no warning. No warning or notice was necessary in relation to the applicant’s claims concerning Chhatra Dal because they were claims made for the first time before the Tribunal.
Conclusion
I accept the first respondent’s submissions that the findings made by the Tribunal were open to it. The Tribunal considered the applicant’s claim of a well-founded fear of persecution for reason of his political opinion in support of the Bangladesh National Party. The Tribunal did not consider the applicant to be a credible witness and rejected his claims.
The applicant was not denied procedural fairness in the way claimed by him in these proceedings. The Tribunal, I find, discharged its obligations pursuant to s425(1) of the Migration Act.
The Tribunal’s decision is not attended by jurisdictional error. The application for review must be dismissed with costs.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Judge Jarrett
Associate:
Date: 30 June 2017
0
4
2