ATH16 v Minister for Immigration

[2017] FCCA 1352

FEDERAL CIRCUIT COURT OF AUSTRALIA

ATH16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1352

Catchwords:
MIGRATION – Application for Protection (Class XA) visa – whether Administrative Appeals Tribunal’s decision affected by jurisdictional error – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa)

Cases cited:

SFGB v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 77ALD 402
SZDIK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1252
QAAH of 2004 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1448

Applicant: ATH16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 299 of 2016

Judgment of: Judge Jarrett

Hearing date: 29 July 2016

Date of Last Submission: 29 July 2016

Delivered at: Brisbane

Delivered on: 23 June 2017

REPRESENTATION

Counsel for the Applicant: Mr D. Kelly QC with Mr Butler

Solicitors for the Applicant: O’Reilly Lillicrap

Counsel for the First Respondent: Mr Richardson

Solicitors for the First Respondent: Sparke Helmore

The Second Respondent entered a submitting appearance

ORDERS

1. The amended application filed on 23 June, 2016 be dismissed.

2. The applicant pay the first respondent’s costs of and incidental to the amended application fixed in the sum of $7,206.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 299 of 2016

ATH16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant applies for judicial review of a decision of the second respondent that affirmed a decision of a delegate of the first respondent to refuse the applicant a Protection (Class XA) visa.  The applicant’s case, in short compass, is that the Tribunal’s decision was based on critical findings of fact in circumstances where there was no evidence to support those findings, or alternatively, where those findings were not based on logical or rational grounds.

2. The first respondent opposes the application.  He argues that the Tribunal’s findings were supported by evidence, were not irrational or illogical and in any event, were not critical to the Tribunal’s determination of the application for review.

3. The second respondent entered a submitting appearance.

4. Both parties have filed written submissions.

Background

1. The applicant is a national of Bangladesh.  He arrived as an unauthorised maritime arrival on 4 May, 2013. 

2. On 2 September, 2013 the applicant applied to the Department of Immigration for a Protection (Class XA) visa.  On 30 October, 2014 a delegate of the first respondent refused that application. 

3. On 10 November, 2014 the application sought review of that decision by the Administrative Appeals Tribunal.  There was a hearing before the Tribunal on 16 November, 2015.  The applicant was represented by a migration agent and assisted by a telephone interpreter in the Bengali and English languages at the hearing.

The applicant’s claims and the Tribunal’s decision

1. The applicant claimed to have a well-founded fear of persecution and that there was a real risk of significant harm to him if he was to be returned to Bangladesh:

   a)because he would be subjected to pressure from the Awami League, the Jamaat-e-Islami party and the Bangladesh National Party to join them and pursue their political agendas;

   b)because he owed debts to customers of his business in the form of deposits on unfinished building contracts;

   c)because he had failed to respond to, and there remained outstanding what is described in the material as a “first incident report”; and

   d)because of his status as a failed asylum seeker.

2. As to the first matter, the applicant claimed that members of the Awami League, the Jamaat-e-Islami party and the Bangladesh National Party were targeting him to join their parties.  He claimed that he had a brother who was a member of the Bangladesh National Party and he had pursued him to join the Party.  He claimed that because his brother had relocated to Malaysia and was no longer involved in the Bangladesh National Party, the pressure would shift to him.  In support of this claim the applicant asserted that he was assaulted by some men after he refused overtures from the Awami League and Jamaat-e-Islami.  He had also been threatened by Bangladesh National Party members and received a letter from the Bangladesh National Party in relation to his brother’s role with the party.  The applicant also claimed that 50 people, including one of his relatives, were killed in political violence in his village. 

3. As to the second matter, the applicant claimed that he would face harm if he returned to Bangladesh because customers of his construction business would target him for the repayment of deposits, which he would not be able to pay back.  In support of this claim, the applicant’s migration agent submitted that the applicant would have no job to return to if he was sent back to Bangladesh.  However, the applicant told the Tribunal that he would be able to find work should he return to Bangladesh and the migration agent withdrew that previous submission.

4. As to the third matter, the applicant claimed that he would be arrested on his return to Bangladesh because of an outstanding warrant for failure to respond to a “first incident report”.  The applicant claims the “first incident report” was falsified by the “enemy group” because the applicant refused to join any political party.  Again, the applicant could not identify which “enemy group” that was.  In support of this claim the applicant asserted that once the “first incident report” was issued he would hide at a friend’s house overnight because the police would go to his home looking for him. 

5. Finally, the applicant claimed that there was a real chance of him being harmed on his return to Bangladesh because he applied for asylum.  In support of this claim the applicant relied upon reports containing comments by 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.”

6. The Tribunal made some adverse credit assessments of the applicant.  It expressed broad concerns with the applicant’s credibility and formed the view that his claims of being a businessman and being a target for recruitment by supporters of the Awami League, Jamaat-e-Islami party or Bangladesh National Party were fabricated.  The Tribunal commented multiple times throughout its reasons that the applicant’s evidence was inconsistent and that his explanations for the inconsistencies were not persuasive.

7. The applicant provided to the Tribunal a bundle of engineering licence and contracting documents in support of his claims, but the Tribunal was not satisfied that those documents were genuine.  In reaching that conclusion, the Tribunal considered country information that demonstrated the prevalence of corruption and production of fraudulent documentation in Bangladesh.  This, as well as the applicant’s admission that his brother had tried to bribe police in order to make the “first incident report” “go away,” led the Tribunal to conclude that the engineering licence, contracting documents and “first incident report” were not credible documents.  The Tribunal was not satisfied that the applicant was a businessman and therefore was not satisfied that the applicant took deposits from customers.

8. The Tribunal did not accept that the applicant was the subject of attempted recruitment by any of the political parties he nominated or that he was threatened or that there was political violence in his village.  The Tribunal did not accept that the applicant was assaulted and did not accept that he was hospitalised.  The applicant provided a medical discharge certificate in relation to the alleged injuries the applicant claimed he suffered during the assault, but the Tribunal questioned the credibility of the document.  However, the Tribunal did not make a finding as to the legitimacy of that document.

9. The Tribunal did not accept that the evidence suggested that failed asylum seekers returning to Bangladesh were being punished by the authorities.  While the Tribunal did accept that there would be a remote and speculative chance of harm, it did not accept that there was a real chance the applicant would face persecution as a failed asylum seeker.

10. Neither was the Tribunal satisfied that the applicant had a well-founded fear of prosecution from supporters of the Awami League, Jamaat-e-Islami party or Bangladesh National Party because he applied for asylum.  It did not consider that he had a well-founded fear of persecution for any Convention reason.  Nor did the Tribunal consider that the applicant met the complementary protection criteria.

11. On 7 March, 2016 the Tribunal affirmed the decision of the delegate of the first respondent not to grant the applicant a Protection (Class XA) visa. 

The grounds of review

1. The applicant’s case focusses upon the Tribunal’s findings with respect to his claim that the political parties to which I referred earlier had attempted to recruit him.  His evidence was that in February, 2013 members of both the Awami League and the Jamaat-e-Islami party approached him to join their respective parties.  He claimed that he had refused to join any party.  Subsequently, and the applicant says as a consequence of his refusal, he was physically assaulted.  He claimed that a few nights after the attempt to recruit him, he was beaten unconscious by a group of four to five men.  The men came into the room where the applicant was sleeping and took him out of the room where they “beat, kicked and slapped” him until he was unconscious.  He claimed that he went to hospital and was treated there.

2. A week or so later, he was approached again, this time by supporters of the Bangladesh National Party.  He refused their attempt to recruit him, so they threatened him.  His brothers were also threatened.

3. The Tribunal found that the applicant had “provided generally consistent claims of attempts to recruit him” by political parties, but that it did not accept that those attempts had in fact occurred.   It also rejected that he had been threatened and physically assaulted by the supporters of those parties.  In doing so, the Tribunal stated that “country information before the Tribunal too, does not indicate political parties in Bangladesh engage in forced recruitment”. 

4. In that context, the applicant advances two ground of review.  They are related, but I will deal with them separately.  The first ground of review is expressed in the following terms:

   1.      The learned Tribunal member committed a jurisdictional error by finding that:

   (a)     country information did not indicate there was forced recruitment of people to political parties in Bangladesh (Reasons at [43]);

   (b)     the Applicant would not be forcibly recruited to join any political party in the future if he returns to Bangladesh (Reasons at [52]);

   (c) there was only a remote or speculative chance, and therefore not a real chance that the Applicant would face persecution by reason of his rejecting to join any political party in Bangladesh if he returns to Bangladesh (Reasons at [52]);

   (d)     there was only a remote or speculative chance, and therefore not a real chance that the Applicant would suffer any serious harm from supporters of any political parties if he returns to Bangladesh (Reasons at [52]);

   when there was no evidence to support those findings, and where those findings were not based on logical or rational grounds.

5. The Tribunal’s conclusions about the applicant’s claims of forced recruitment by political parties were contained in paragraphs 42 and 43 of its reasons (my emphasis):

   42. The applicant provided generally consistent claims of attempts to recruit him by AL and JEI. The country information provided by the migration agent, in the delegate’s decision and in the DFAT report state these are opposing parties. That country information does suggest it is implausible supporters of both parties would attempt to recruit the applicant at the same time. The applicant sought to explain that by changing his evidence the supporters of the two parties did not approach him at the same time, but at similar times. The Tribunal does not find that a persuasive explanation and is unable to give the applicant the benefit of the doubt because the balance of his evidence regarding attempts by the BNP to recruit him, the role of M3 in the BNP and his hospitalisation too are all riddled with the inconsistencies set out above. The Tribunal considers those multiple inconsistencies further undermine the credibility of the applicant’s claims.

   43. On the basis of there being only 500 political deaths in Bangladesh in 2013 and the claim of the applicant there are no media reports of the death of his relative, the Tribunal rejects too that 50 people (including his relative) were killed in the applicant’s district in the days before the claimed attempts to recruit him. The Tribunal considers it implausible there would be no media reports of the death of 50 people – being 10% of all the political deaths in Bangladesh that year. The Tribunal rejected above the applicant was a successful businessman and it has rejected too there was political violence in the district of the applicant’s home village. So neither of these explanations for the attempted recruitment of the applicant is credible. The country information before the Tribunal too does not indicate political parties in Bangladesh engage in forced recruitment. These all weigh in favour of the Tribunal finding the applicant was not a credible witness and he was not the subject of attempted recruitment by any political party in the past, nor was he assaulted or threatened.

6. The applicant argues that the Tribunal’s rejection of his claim that political parties attempted to recruit him and that as a consequence he had been threatened and physically assaulted by the supporters of those parties was informed by the Tribunal’s “finding” that “country information before the Tribunal too does not indicate political parties in Bangladesh engage in forced recruitment.”

7. However, the Tribunal’s statement that country information did not indicate there was forced recruitment of people to political parties in Bangladesh was factually correct.  The applicant did not suggest that the Tribunal had misunderstood the country information before it or that there was country information before the Tribunal that supported his claim of forced recruitment.

8. The applicant argues that “Thus, there was simply no evidence on this issue.  However, the Tribunal then used the absence of evidence on this issue in an impermissible way.”  But as to this proposition three observations may be made.

9. First, it was for the applicant to place before the Tribunal the evidence and other material he considered necessary to enable the Tribunal to reach the necessary satisfaction required by s.36(2)(a) or 36(2)(aa) of the Act. He attempted to do that by his own evidence, both written (in the form of statutory declarations) and oral. His claims and the evidence that he gave about those claims was the sum of the evidence before the Tribunal about his claim of forced recruitment by political parties. For the detailed and transparent reasons given by the Tribunal it rejected the applicant’s claims about those matters. The Tribunal’s reasons detail the many concerns that it had with his claims and evidence in support of them. The reasons record the Tribunal’s attempts to obtain from the applicant some explanation about those concerns, particularly relating to the inconsistencies in the applicant’s statements about the relevant events.

10. It is within that context that the Tribunal recorded that the country information that there was in evidence did not indicate that political parties in Bangladesh engaged in forced recruitment.  I think that it is right to say that the absence of evidence in the country information about that matter was one of the matters that went to inform the Tribunal’s view of the applicant’s credit in relation to his claims of forced recruitment, but it was not the sole, or even the dominant reason.  A fair reading of the Tribunal’s reasons demonstrates that it was much more concerned with the patent inconsistencies in the applicant’s various statements concerning the relevant events and his inability to give an explanation about those inconsistencies.

11. Second, in any event the Tribunal was entitled to use the absence of any evidence of forcible recruitment in the country information to inform its decision about the applicant’s credibility on that issue.  The Tribunal was entitled to draw inferences from the absence of any report in support of the relevant issue if there was reason to expect that such a report would, in the usual course, exist.  So much appears from QAAH of 2004 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1448 at [45], applied in SZDIK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1252 at [14], see also SFGB v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 77ALD 402 at [29] – [30].

12. Third, having rejected the applicant’s claims about the attempts to forcibly recruit him, there was no other evidence on that issue.  In those circumstances it was entirely unremarkable that the Tribunal concluded that:

    a)the applicant would not be forcibly recruited to join any political party in the future if he returns to Bangladesh;

    b)there was only a remote or speculative chance, and therefore not a real chance that the applicant would face persecution by reason of his rejecting to join any political party in Bangladesh if he returns to Bangladesh; and

    c)there was only a remote or speculative chance, and therefore not a real chance that the applicant would suffer any serious harm from supporters of any political parties if he returns to Bangladesh.

13. In my view, ground 1 of the amended application for review does not reveal jurisdictional error.

14. The second ground of review is in the  following terms:

    2.  Further, in making the findings in paragraph 1 above, the learned Tribunal member committed a jurisdictional error by finding that the Applicant was not hospitalised following an assault by supporters of a political party (Reasons at [52]) by reason of the learned Tribunal member’s subsidiary findings that:

    (a)     the words “L/S pain” on the Applicant’s medical discharge certificate meant “left side pain”(Reasons at [39]);

    (b)     the description of the Applicant’s injuries on his medical discharge certificate were inconsistent with someone who was beaten unconscious (Reasons at [39]);

    (c) it was reasonable to presume that the Applicant would have suffered a head injury upon falling unconscious (Reasons at [39])

    when there was no evidence to support those findings, and where those findings were not based on logical or rational grounds.

15. The finding sought to be impugned by this ground is contained in paragraph 52 of the Tribunal’s reasons.  I set it out in full (with my emphasis):

    52. For the above reasons the Tribunal finds the applicant was not a credible witness and finds he has fabricated his claims of past harm. It finds neither he nor any member of his family suffered serious harm in the past. On the evidence before it, the Tribunal finds neither he nor any member of his has any political profile. The Tribunal rejects any political party attempted to recruit the applicant in the past. It rejects his brother M1 was a supporter of BNP and rejects a false FIR was issued against M1. It rejects his brother M3 was a member of BNP or was threatened by the BNP or JEI. It rejects the applicant was threatened or assaulted by the supporters of any political party. It rejects he was hospitalised. It rejects he was a businessman or that he took deposits from any claimed customers. It rejects any FIR or warrant was issued against him or his brother M1. It rejects he will be forcibly recruited to join any political party in the future or that he will acquire an active political profile in future. While the Tribunal is mindful of the country information regarding political violence in Bangladesh, given neither the applicant nor any member of his family has an political profile, the Tribunal considers there to be only a remote or speculative chance and therefore not a real chance the applicant will face persecution for reason of his rejecting to join or joining any political party now or in the reasonable foreseeable future if he returns to Bangladesh.

1. The applicant submits that the rejection of the applicant’s claims about his hospitalisation was “a critical step in the Tribunal’s reasoning by which it ultimately concluded that the applicant would not be forcibly recruited to join any political party in the future, and that there was not a real chance that the applicant would face persecution by reason of his rejecting to join any political party if he returned to Bangladesh”.

2. In turn, the applicant submits that the three “findings” set out in subparagraphs (a), (b) and (c) of ground 2 were all critical to the ultimate finding by the Tribunal that it was not satisfied that the applicant had suffered harm or had been hospitalised as he had claimed.  He argues that there was no evidence upon which the Tribunal could have made those findings or alternatively, the Tribunal made those findings notwithstanding that there were no logical or rational grounds for making those findings.   

3. Those purported findings concern a “Discharge Certificate” relied upon by the applicant which purported to be issued by the Sader Hospital in Satkhita in Bangladesh.  It purported to record that the applicant “was admitted in this clinic.”  It also recorded that the applicant’s “Diagnosis” was “Right hand injury and L/S pain.”  The Tribunal considered this medical certificate at paragraph 39 of its reasons as follows (again, with my emphasis):

   39. The Tribunal discussed the medical discharge certificate he provided. It noted the certificate appeared to indicate he was admitted overnight and not hospitalised for two nights as set out in his statutory declaration. He replied that was an error by the hospital in the translation. The Tribunal noted the document was in English. He added the discharge certificate made an error in his name. The Tribunal further commented it appeared the month had been amended by hand from the third to the second month. The applicant replied he submitted the document as it was provided to him. He had no further comment about that. The Tribunal queried too that the certificate listed an injury to his right hand and ‘L/S pain’ which the Tribunal took to mean left-side pain. The applicant commented he was injured on the right-side, he does not know why that is written on the certificate. He commented the original certificate in Bengali was correct, but his brother arranged an English version which has errors. The Tribunal noted many other documents he provided were in Bengali, so why did he not also provide the Bengali version of the discharge certificate. He replied his brother arranged it and he asked his brother to send the Bengali version but he did not. The Tribunal queried how a hand injury to his left or right side would cause him to become unconscious and those injuries appeared inconsistent with someone who is beaten unconscious. There is no reference to the applicant suffering any head injury which it is reasonable to presume would be the cause of his falling unconscious. He told the Tribunal he fainted from the pain of being beaten by six people. The Tribunal noted that is inconsistent with what he put in his statutory declaration, that he was beaten unconscious, not that he fainted. He referred to having a disk about what injury he suffered. He listened to that disk prior to preparing his statutory declaration. He explained the disk was the interview he had with the delegate. The Tribunal noted the interview was after he had signed the statutory declaration.

4. The first respondent submits that the Tribunal’s reasoning in paragraph 39 is capable of two distinct interpretations and that on either of these interpretations, the Tribunal’s decision is not affected by jurisdictional error.  On the first interpretation, the Tribunal’s statements in this paragraph ought not properly be regarded as findings of fact at all, but rather a recitation of an exchange that took place at the hearing between the applicant and the Tribunal.  On the second interpretation, in any event and even if it were conceded that the “subsidiary findings” were irrational or illogical, neither the hospitalisation finding nor the Tribunal’s assessment of the applicant’s credibility materially relied upon the subsidiary findings. Rather, they relied upon other findings made by the Tribunal which were reasonably open to it on the evidence before it.

5. In my view, the first respondent’s first interpretation of paragraph 39 is correct.  In that paragraph, the Tribunal is recording what it discussed with the applicant.  The opening words of the paragraph say as much.  The Tribunal does not make any findings in that paragraph, nor reach any conclusions.  It sets out the terms of the exchanges between the applicant and the Tribunal at the hearing.  It records what the Tribunal put to the applicant for his comment.

6. The finding in paragraph 52 that the applicant was not hospitalised follows the rejection of the applicant’s claims that he was assaulted after he refused to join the Awami League or Jamaat-e-Islami.  The rejection of those claims must necessarily lead to the rejection of the applicant’s claim that he was hospitalised by reason of the injuries he received in the assault.

7. In any event, even if that approach is incorrect and the Tribunal has made findings as the applicant contends, the finding which the applicant seeks to impugn as illogical or irrational was not made based upon those three subsidiary findings or any of them.  The impugned finding follows the finding that the applicant was not assaulted.  The Tribunal’s reasons for rejecting the applicant’s claims that he was assaulted (paragraphs 42 and 43 set out above) make no reference to and do not on a fair reading of them rely upon any rejection by the Tribunal of the medical certificate produced by the applicant or any rejection of his claim that he was hospitalised.

8. I accept the first respondent’s submissions that there is nothing in the text of paragraph 52 of the Tribunal’s reasons, where the hospitalisation finding is made, to suggest that the Tribunal has relied upon any particular view of the medical discharge certificate or the matters set out in paragraph 39 of the reasons.  As the applicant points out in his submissions, the Tribunal did not make any finding about the authenticity of the medical certificate.  Given the way in which the Tribunal reasoned the matter in paragraph 52 of its reasons, a finding about the authenticity of the medical certificate was unnecessary.

9. The second ground of the amended application for review reveals no jurisdictional error.

Conclusion

1. For the reason I have expressed above, neither ground relied upon by the applicant establishes that the Tribunal’s decision is affected by jurisdictional error.  The amended application must be dismissed with costs.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Jarrett

Associate: 

Date:  23 June 2017