AUX16 v Minister for Immigration
[2017] FCCA 1356
•22 June 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AUX16 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 1356 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – applicants claiming a fear of harm in Bangladesh – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss. 36(2), 425 |
| Cases cited: ABA15 v Minister for Immigration and Border Protection [2016] FCCA 60 Minister for Immigration and Border Protection v SZTQS [2015] FCA 1069 |
| Applicant: | AUX16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | BRG 316 of 2016 |
| Judgment of: | Judge Jarrett |
| Hearing date: | 29 July 2016 |
| Date of Last Submission: | 29 July 2016 |
| Delivered at: | Brisbane |
| Delivered on: | 22 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 Bickford |
| Solicitors for the First Respondent: | Sparke Helmore |
| The Second Respondent entered a submitting appearance |
ORDERS
The amended application filed on 28 June, 2016 be dismissed; and
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 316 of 2016
| AUX16 |
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 jurisdictional error because it rejected the application on grounds different to those considered dispositive by the first respondent’s delegate without providing the applicant any, or any sufficient, opportunity to respond to those grounds. In doing so, he argues, the Tribunal denied him procedural fairness and did not properly invite him to appear before it to give evidence and present arguments, in breach of s.425(1) of the Migration Act 1958 (Cth).
The first respondent opposes the application. The second respondent entered a submitting appearance.
For the reasons that follow, I do not think that the applicant’s arguments reveal that the Tribunal has fallen into jurisdictional error in the way alleged. Whilst a critical aspect of the Tribunal’s decision was its finding, based upon the applicant’s evidence, that he would not engage in political activity if he was returned to Bangladesh, the Tribunal gave the applicant an appropriate opportunity to make submissions on the prospect that he would, in any event, face persecution or harm if he returned to Bangladesh and did not return to his claimed political activity. The factual basis underpinning the applicant’s argument, namely that the Tribunal did not raise the issue that the applicant’s intention to not resume any political activity was to be a factor in the Tribunal’s decision making, is not made out. The applicant was provided with an opportunity to satisfy the reservations the Tribunal had about his risk of harm should he return to Bangladesh.
Background
The applicant is a citizen of Bangladesh who entered Australia as an unlawful maritime arrival in March, 2013.
In June, 2013 he applied for a Protection (Class XA) visa. On 20 October, 2014 a delegate of the first respondent refused that application.
The applicant applied for a review of that decision by the Administrative Appeals Tribunal on 6 November, 2014. There was a hearing before the Tribunal on 19 November, 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 to attract Australia’s protection obligations rested in the notion that he has a well-founded fear of persecution by reason of his political opinion if he were to be returned to Bangladesh. He claims to fear harm because of his association with the Jamaat-e-Islami party.
The applicant claimed he had been involved in the Jamaat-e-Islami party initially through its student wing and later as a committee member and financial secretary for the party’s south wing. He also attended Jamaat-e-Islami meetings, demonstrations and speeches. He claimed to fear harm from Awami League members and the Bangladesh authorities. He claimed that they would detain torture, extort, abuse and/or kill him if he returned to Bangladesh. The applicant also claimed that, due to his change in views of the implementation of Sharia law, he did not intend to resume any involvement in politics.
In support of his claims, the applicant asserted that he had suffered physical assault by members of the Awami League on three separate occasions. He claimed that he was assaulted whilst watching election results in 2008 and again in 2009 at the shop of a relative. He claimed after the second assault he relocated out of fear to Dhaka. He claimed that in 2013 he attended a Jamaat-e-Islami procession where he was assaulted, a friend was killed and another friend was arrested. He also claims that Awami League supporters continued to look for him.
The Tribunal questioned the credibility of the applicant’s claims in relation to his office in the Jamaat-e-Islami party and the alleged attack at the procession in 2013. It considered that he had fabricated these claims to create a profile upon which to apply for protection. The Tribunal accepted that the applicant was a member of Jamaat-e-Islami but did not accept that the applicant was a committee member, noting that there were multiple material inconsistencies in his evidence about that matter.
Whilst the Tribunal did accept that the applicant was assaulted by Awami League supporters in 2008 and 2009, it did not accept that the applicant attended the 2013 because the country information indicated that the procession the applicant referred to had occurred in 2011. The Tribunal therefore did not accept that the applicant was assaulted in 2013. The Tribunal also did not accept that Awami League supporters had continued to look for him either at his parents’ home or in Dhaka.
The Tribunal did accept that the applicant had no intention of resuming any political activity if he returned to Bangladesh.
On 18 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 28 June, 2016. He argues that the Tribunal committed a jurisdictional error by affirming the delegate’s decision on different grounds to those relied upon by the delegate without providing him with any, or alternatively any sufficient, opportunity to respond to those grounds. In doing so, the applicant argues, 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.
The applicant argues that the evidence shows that the first respondent’s delegate rejected the applicant’s claims in their entirety. In particular, the delegate:
a)rejected the applicant’s claim that he was a member of the student wing of the Jamaat-e-Islami party;
b)rejected the applicant’s claim that he then became a member of the Jamaat-e-Islami party;
c)rejected the applicant’s claim that he attended meetings and gatherings of the Jamaat-e-Islami party;
d)rejected the applicant’s claim that he was physically assaulted by supporters of the Awami League party in 2008, 2009 and 2013;
e)rejected the applicant’s claim that he feared harm if he returned to Bangladesh by reason of his past political involvement; and
f)rejected the applicant’s claim that there was a real chance he would be harmed on account of his Jamaat-e-Islami membership if he returned to Bangladesh.
However, the Tribunal found that the applicant:
a)was a member of the student wing of the Jamaat-e-Islami party;
b)then became a member of the Jamaat-e-Islami party;
c)had been physically assaulted by supporters of the Awami League party in 2008 and 2009;
d)attended a Jamaat-e-Islami procession in 2011; and
e)had no intention of resuming any political activity.
The Tribunal ultimately found that because the applicant had no intention of resuming any political activity there was only a remote, and therefore not a real, chance that the applicant would suffer harm from supporters of the Awami League if he returned to Bangladesh.
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.
The applicant submits that the Tribunal was obliged to inform the applicant of the significance of his evidence that he did not intend to resume his political involvement, put the applicant on notice that his evidence about that would be vital to the Tribunal’s determination and give the applicant the opportunity to be heard on the issue. By failing to afford the applicant this opportunity, the applicant argues that he was denied procedural fairness and the Tribunal fell into jurisdictional error.
There is no issue that s.425(1) of the Act was engaged in this case. It was the duty of the Tribunal to invite an applicant for review “to give evidence and present arguments relating to the issues arising in relation to the decision under review.” The Tribunal was plainly cognisant of its general obligation under s.425(1) of the Act.
But to resolve the question raised by the applicant in this case requires identification of the “issues arising in relation to the decision under review” for the purposes of s.425(1) of the Act.
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.
But how should the “issues arising in relation to the decision under review” be defined? The first respondent argues that:
5. In the review application the Applicant raised the following issues for the Tribunal to determine:
(a) does the Applicant have a well-founded fear of persecution in the reasonably foreseeable future if he returns to Bangladesh?
(b) are there substantial grounds for believing there is a real risk that the Applicant will suffer a significant harm if he was removed to Bangladesh?
I am not sure that the applicant raised those issues in his review application at all. Rather, they were the broad questions posed by ss.36(2)(a) and 36(2)(aa) for the Tribunal’s consideration. Applying SZBEL, absent some indication to the contrary from the Tribunal, the issues raised in the review were those which the delegate considered dispositive. The delegate considered that the applicant did not have a well-founded fear of persecution for a convention reason or that there were substantial grounds for believing there was a real risk that the applicant would suffer significant harm if he was removed to Bangladesh. But to state the issues in those terms masks the underlying issues of fact that the delegate determined on the way to reaching those ultimate conclusions. Are the issues arising in relation to the decision under review to be defined generally as the first respondent argues, or are they to be more narrowly defined by identifying particular factual or legal issues that are determined by a delegate or the Tribunal on its way to a determination of the broader issues raised by the Act?
The applicant directs my attention to Minister for Immigration and Border Protection v SZTQS [2015] FCA 1069 and argues that the relevant “issue” must be identified in narrow or particular terms. I repeat the applicant’s counsels’ summary of SZTQS (footnotes omitted):
46. In that case, a Sri Lankan applicant for a protection visa claimed that, on return to Sri Lanka, asylum seekers were detained and suffered serious harm, constituted by detention in dire prison conditions.
47. The Tribunal found that such persons could apply for bail, which was routinely given, and that a member of the applicant’s family would provide bail for him, meaning that he would only be imprisoned for a few days. For this reason, the Tribunal found that the applicant was not at risk of serious harm upon re-entry to Sri Lanka. This led the Tribunal to affirm the Minister’s decision to refuse a protection visa.
48. However, whether the applicant’s family would provide bail for him was not an issue before the Minister, nor was it raised with the Applicant by the Tribunal. In those circumstances, the applicant contended on appeal that he had not been given an opportunity to be heard on this issue. On this basis, he submitted there had been a failure to afford him with procedural fairness, as required by section 425 of the Migration Act.
49. During the appeal, the Minister sought to characterise the “issue” at a broader level - namely, whether the applicant would suffer significant harm on his return to Sri Lanka, by way of imprisonment for trying to leave Sri Lanka illegally. The Minister contended that the applicant was afforded an opportunity to give evidence and present arguments to the Tribunal relating to that issue, and that thereby, there was no breach of section 425 of the Migration Act.
The Full Court, constituted by a single judge, determined that the issue needed to be identified with greater particularity than the Minister had suggested. The Court said:
58. As the primary judge found, the Tribunal made a factual conclusion, which was a necessary link in the Tribunal’s chain of reasoning in rejecting SZTQS’s claim, without any notice to SZTQS that the conclusion might be made or that the factual question was in issue. That factual conclusion was to the effect that the applicant would only be detained for a short period because a member of his family would provide surety and he would be granted bail.
…
60. The question of whether a family member would provide surety for SZTQS was a crucial link in the Tribunal’s chain of reasoning, and was an issue that, in order to comply with s425(1), the Tribunal had to identify to SZTQS. Ground 2 is rejected.
61. Ground 4 should also be rejected. It is predicated on a false premise, namely that the relevant issue for the purpose of s425 was the likelihood that SZTQS would suffer significant harm upon his return to Sri Lanka should he be suspected of having departed Sri Lanka illegally. For reasons given above that is too broad a statement of the relevant issue. The relevant issue was more particular than that, namely whether or not SZTQS had a family member who would provide surety for him.
Subsequent decisions of the Full Court have sought to confine SZTQS to its own facts. In SZTAP v Minister for Immigration and Border Protection (2015) 238 FCR 404 the appellant submitted that the Tribunal, having found that bail in Sri Lanka is routinely given on the accused’s own recognisance although a family member is also required to give surety, failed to consider the prospect that the appellant would be confined to prison for a prolonged period if bail was not granted to him. There was no consideration by the Tribunal of whether surety would be provided or if money were required, whether it could be paid.
The plurality in SZTAP (Robertson and Kerr JJ, Logan J concurring) found that “at a general level of abstraction” there was a similarity between SZTQS and the case before it, in that in both cases the Tribunal noted that bail is routinely given upon a family member providing surety. In both cases, the Tribunal did not specifically put to the appellant an issue as to whether there was in fact a family member who would provide that surety. However, the Full Court distinguished SZTQS:
77. SZTQS is but an application, on particular facts, of a feature of the review jurisdiction exercised by the Tribunal under the Act, described in SZBEL. It is not necessary to consider whether or not SZTQS was correctly decided. Rather, the pertinent feature highlighted by SZBEL is that, in each instance, the Tribunal exercises a review jurisdiction in respect of a particular decision in respect of which the Minister (or a delegate) will have given particular reasons. In our opinion, SZTQS was, of necessity, fact specific.
An approach consistent with SZTQS was taken in ABA15 v Minister for Immigration and Border Protection [2016] FCCA 60, but in SZTIS v Minister for Immigration and Border Protection [2017] FCA 545 SZTQS was distinguished along the same lines of reasoning as was used in SZTAP.
Earlier, in SZHKA v Minister for Immigration & Citizenship (2008) 172 FCR 1 the Full Court (again constituted by a single judge) considered the scope of the term “issue” as it appears in s.425(1) of the Act and said at [115]:
The second question is that the matter be substantial enough to constitute an issue. That depends, obviously enough, on the interpretation of the word issues in s 425(1). On a narrow interpretation, issues might be defined only as the main elements of an applicant’s claim. I do not think that such a narrow interpretation would be correct. In SZBEL, the High Court said that the reasons given by a delegate for refusing to grant an application identify the issues that arise in relation to that decision. Matters much more specific than the main elements might become issues in relation to a delegate’s decision by virtue of the delegate’s reasons. Equally, matters much more specific than the main elements, which the Tribunal considers to be in question irrespective of the delegate’s reasons, may constitute issues arising in relation to the decision under review within s 425(1). In my view, issues, relevantly, are all matters not of an insubstantial nature which the Tribunal considers to be in question.
The first respondent contends that the Tribunal was not required to identify the significance of the questions it put to the applicant or the ultimate matter to which the questions went, was not required to descend into all of the underlying factual matters of each issue when meeting its obligations under s.425 of the Act and was not required to provide a “running commentary upon what it thinks about the evidence that is given.” The first respondent submits that the applicant was well aware of his own evidence and assertions in relation to his intention, or lack thereof, to resume political involvement and that the reason why it was not an issue before the delegate was because it was not raised by the applicant at that time.
However, the applicant’s submissions do not go so far as to suggest that the Tribunal needed to give a running commentary upon what it thought about the evidence that the applicant gave. Here, the applicant argues that the critical issue which swayed the Tribunal was its finding that the applicant had no intention of resuming any political activity and, therefore, there was not a real chance the applicant would suffer harm from supporters of the Awami League if he returned to Bangladesh. He argues that the Tribunal did not raise that issue with him and give him the opportunity to give evidence or make submissions about that issue.
It is necessary to record that the Tribunal said (my emphasis):
26. After assessing all the evidence and being mindful of the applicant’s personal circumstances, the Tribunal has considered the claims of the applicant individually and cumulatively. For the above reasons, the Tribunal found the applicant fabricated his claims regarding his being harmed after attending a JEI procession in 2013 or that supporters of the AL have been looking for the applicant since he departed Bangladesh. The Tribunal accepts the applicant was a member of JEI in the past and that he was assaulted in 2008 and 2009, but that he will not participate in any future political activity. On the basis of that political profile the Tribunal finds there is only a remote chance and therefore not a real chance the applicant will face serious harm from supporters of AL if he returns to Bangladesh. Therefore the Tribunal is not satisfied the applicant has a well-founded fear of persecution from supporters of AL, or from the Bangladesh authorities for reason of his political opinion, or for any Convention reason or combination of reasons, now or in the reasonably foreseeable future if he returns to Bangladesh. Therefore, the applicant does not satisfy the requirements of s.36(2)(a).
I do not accept the applicant’s contention that the Tribunal’s finding that the applicant did not intend to participate in any future political activity was the critical issue that swayed the Tribunal to its final view expressed in the paragraph extracted above. It was only one of the matters that went to make up his “political profile” which, according to the Tribunal’s reasons, was the basis upon which the Tribunal found that there is not a real chance the applicant will face serious harm from supporters of the Awami League if he returns to Bangladesh. The Tribunal’s reasons do not suggest that it was a critical or determinative matter in its own right.
In any event, what was necessary, I think, was that the Tribunal raise with the applicant the concern that the Tribunal plainly had that if the applicant did not intend to continue with his political activity, he was unlikely to encounter any real chance of persecution if he was to return to Bangladesh.
There is a transcript of the hearing before the Tribunal in evidence (affidavit of Mark Gerard Lillicrap filed on 21 July, 2016). The following appears from the transcript at page 8:
MEMBER: That is really one of the important questions I wanted to ask you today because you said the same thing during your interview with the visa officer. At that time, you supported bringing sharia law to Bangladesh but now you have changed your mind about that. So if you did return to Bangladesh, would you continue to support Jamaat-e-Islami or would you have no involvement in politics or perhaps join a different political party?
INTERPRETER: (Indistinct) two and a half years, (indistinct) have some (indistinct). (Indistinct). (Indistinct) programs in Australia. Politics in Australia and Bangladesh are different.
MEMBER: Yes. Okay. So you would maybe no longer be involved in any political activity if you were to return to Bangladesh?
INTERPRETER: No.
MEMBER: When you say no, you’re agreeing that you won’t be involved?
INTERPRETER: I feel that if I were to return to Bangladesh, the old problems would come back again and I fear for my life.
MEMBER: I understand that.
INTERPRETER: This is why I don’t want to go back (indistinct) stay in Australia.
MEMBER: I’m just going to ask you one more time because I’m still not absolutely sure. If- if- if you went back to Bangladesh, would you be involved in politics?
INTERPRETER: No.
And further at page 26, after setting out for the applicant the tribunal’s thinking as it was then formulated:
MEMBER: So what I am looking at is an unstable political situation in Bangladesh, somebody who accepting was a lower level supporter of Jamaat-e-Islami but who has no future intention of being involved in politics. So I need to weigh up what is the real chance of you being harmed if you were returned to Bangladesh and I am still very unsure about that and I need to think about the things you have told me today and go away and make a decision. Do you understand? Is there any comments you would like to make?
INTERPRETER: Because he say in Bangladesh the - he thinks the – that 5 sentence (indistinct) highest level orders of the challenge party (indistinct) and that comes to deals and that gets no publicity. But the others and the violence, that’s targeted towards the lower level workers - the Indian level - the low level, they often don’t get much publicity (indistinct). All the papers are controlled by the government - (indistinct) government. Yes, so they – for some time the Facebook and other social media was closed down because the violence and the (indistinct) against the lower level workers that doesn’t come in these channels or (indistinct).
It is apparent from those passages that it was the applicant’s case that he did not intend to return to politics. It is difficult to envisage what, if any, other evidence might have been led by him on that issue. No particular evidence was identified in the submissions before me.
It is also apparent, and I am satisfied, that the Tribunal clearly expressed to the applicant its concern that if the applicant did not intend to continue with his political activity, he was unlikely to encounter any real chance of harm if he was to return to Bangladesh. I am satisfied that the Tribunal provided the applicant with an appropriate opportunity to comment on that concern.
Conclusion
In my view, the Tribunal discharged the obligation cast upon it by s.425(1) of the Migration Act to permit the applicant to give evidence and present arguments relating to the issues arising in relation to the decision under review and in particular, the issue that the applicant did not intend to return to political activity in the future and the consequence of that upon the Tribunal’s determination that there was no real chance of the applicant being harmed because of his political opinion should he return to Bangladesh.
In my view, the application for review reveals no jurisdictional error on the part of the Tribunal. The application for review must be dismissed with costs.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 22 June, 2017.
Date: 22 June, 2017
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