AVC16 v Minister for Immigration

[2017] FCCA 243

FEDERAL CIRCUIT COURT OF AUSTRALIA

AVC16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 243

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – applicant claiming political persecution in Bangladesh – applicant not believed – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), s.36

Abebe v Commonwealth[1999] HCA 14; (1999) 197 CLR 510
Kopalapillai v Minister for Immigration (1998) 86 FCR 547
Minister for Immigration v MZYTS (2013) 230 FCR 431
Minister for Immigration v SZRKT (2013) 212 FCR 99
Minister for Immigration v SZSRS (2014) 309 ALR 67
MZAHN & Ors v Minister for Immigration & Anor [2016] FCCA 337
Re Minister for Immigration; ex parte Durairajasingham (2000) 168 ALR 407
SZRAD v Minister for Immigration [2012] FCA 901

Applicant: AVC16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 849 of 2016

Judgment of: Judge Driver

Hearing date: 15 February 2017

Delivered at: Sydney

Delivered on: 15 February 2017

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondents: Mr M J Smith

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application filed on11 April 2016 is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 849 of 2016

AVC16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 22 March 2016.  The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa. 

2. The applicant is from Bangladesh and had made claims of political persecution. Background facts are conveniently set out in the parties’ submissions. 

Background

1. The applicant is a citizen of Bangladesh, who arrived in Australia by boat on 28 February 2013.The applicant applied for a protection visa on 28 March 2013.[1] On 12 September 2014, the delegate refused to grant the applicant a protection visa.[2]

   [1] Court Book (CB) 178.

   [2] CB 178.

2. The applicant claimed to fear harm based on his political profile (as a supporter of the BNP), because of attacks on him from a rival political party (the Awami League) and as a result of a land dispute between his father and his uncle.

3. In particular, the applicant made the following claims:

   a)From 2004 until he left Bangladesh in 2012, the applicant was the Sports Secretary for the student wing of the BNP.  He regularly attended meetings and demonstrations, as well as organising sport and cultural activities. Various members of the applicant’s extended family were BNP supporters and his uncle and cousin were members of the BNP. Due to the applicant being a professional cricket player, he attracted a high profile in his local area as a BNP supporter. The applicant had never obtained a voting card and had not voted in an election.

   b)While the applicant had had some minor problems in Bangladesh prior to 2011, that was when the major problems started for him.  On 15 January 2012, the applicant was beaten unconscious by Awami League supporters. He was attacked with hockey sticks and long knives and told to “leave the political activities with the BNP” or he would be killed. The applicant sustained injuries to his head, chest, leg and fingers and remained in hospital for one month.

   c)Following the attack, the applicant was in hiding, first at his own home and then at his sister’s home, which was approximately two hours away.  Awami League supporters went to his father’s house several times and threatened to kill the applicant if he continued to support the BNP.

   d)In March 2012, the applicant’s uncle had paid people to come onto a piece of land owned by the applicant’s family and beat the applicant’s father, before seizing the land. The people who had come on behalf of the applicant’s uncle beat the applicant’s father and threatened to kill the applicant and his father.  The applicant’s uncle is a “wealthy and influential BNP member.” The applicant’s uncle subsequently filed a court case to claim the land.

   e)After the applicant arrived in Australia he was informed by his mother that the Awami League filed a false case against the applicant’s younger brother, which the applicant believed was an attempt by Awami League to take revenge against him and his family for their support of the BNP.

4. The applicant sought review of the delegate's decision before the Tribunal by application dated 3 October 2014.[3] The applicant appeared at a hearing before the Tribunal with the assistance of his representative and a Bengali interpreter on 4 January 2015.[4]

   [3] CB 140.

   [4] CB 142.

Tribunal decision

1. The Tribunal rejected the applicant's claims on the basis of comprehensive adverse credibility findings.

2. The Tribunal did not accept that the applicant was telling the truth in relation to the problems that he claimed to have suffered as a result of his alleged political involvement.[5]  The Tribunal also did not accept that the applicant had a high political profile.  The Tribunal noted that, even were it to accept the applicant’s claim to have been Sports Secretary of the student wing of the BNP, it did not accept on the basis of the Department of Foreign Affairs and Trade (DFAT) country information, that the applicant would have had sufficient profile to give rise to a real risk of harm.[6]  While the Tribunal accepted that the applicant might have at some stage suffered some injuries, it did not accept that the applicant had been attacked by Awami League supporters because of his political profile.[7] The Tribunal noted that the medical report provided by the applicant differed from the applicant’s own account as to where he was injured in the attack.[8] On the basis of the applicant’s own evidence that the ‘case’ against his brother was as a result of a fight between the brother’s friends, for which they had ‘put his name in the case’, the Tribunal found that any case against the applicant’s brother was not as a result of the applicant’s involvement with the BNP.[9]

   [5] CB 169 [48].

   [6] CB 170 [48].

   [7] CB 167 [37].

   [8] CB 162 [16]-[17]; 168 [44].

   [9] CB 169 [45].

3. The Tribunal noted that it found it difficult to accept that the applicant’s uncle would both have seized the land belonging to the applicant’s family and also gone to court to claim it.[10]  The Tribunal further noted that members of the applicant’s family continued to live in the same house.  The Tribunal did not accept that there was a real chance that the applicant would be persecuted by his uncle because of any threat he might pose to the uncle in relation to the disputed land as the eldest son; the applicant’s real or imputed political opinion; or, because of his membership of a particular social group, being his family.  The Tribunal further found that the uncle’s seizure of the land did not constitute persecution against the applicant for the purposes of the Refugee Convention.[11]

   [10] CB 170 [49]-[50]

   [11] CB 170-171 [51].

4. On the basis of these findings, the Tribunal did not accept that the applicant was a person in respect of whom Australia had protection obligations, either under s.s36(2)(a) or 36(2)(aa) of the Migration Act 1958 (Cth), on account of his political profile or as a result of the land dispute with his uncle.[12]

   [12] CB 170-171 [51]-[52]

Present proceedings

1. These proceedings began with a “show cause” application filed on 11 April 2016. There are five grounds in the application: 

   1. The Administrative Appeals Tribunal officer erred in [l]aw to come to a decision dismissing my application not finding that the Department of Immigration and Border Protection did not consider that I was a victim of persecution for my political belief as an activist of Bangladesh Nationalist Party prior to my departure from Bangladesh

   2. The Honorable Administrative Appeals Tribunal officer did not find that there was lack of procedural fairness in the decision of the Department of Immigration and Border Protection to consider that I was physically abused for my political belief and my life was at risk which forced me to leave Bangladesh for safety of my life. I was not accepted by Tribunal as a credible witness and refused my application.

   3. The Administrative Appeals Tribunal Officer made error to find that the Department of Immigration and Border Protection failed to accept that the persecutions I experienced in Bangladesh and I shall be imprisoned and tortured if returned to Bangladesh. The Tribunal refused my claim on the ground that I am not a credible witness for my claims though I presented all relevant documents and evidences in support of my claims before the Tribunal prior to hearing.

   4. The Administrative Appeal Tribunal officer erred in not finding that the DIBP erred in law amounting to jurisdictional error in finding that I do not have genuine fear of persecution for a convention reason and I do not meet the criteria set out in s 36(2) of Protection Visa.

   5. The Administrative Appeals Tribunal officer erred in not finding that the DIBP refused my application on the ground that I would face punishment would be completely politically motivated.

   (errors in original)

2. The application is supported by a short affidavit filed with it, which I received.  I also had before me as evidence the court book filed on 22 June 2016.  Both the applicant and the Minister provided pre-hearing written submissions in accordance with procedural orders made by a Registrar.

3. I also received oral submissions from the applicant and the Minister today. The applicant is concerned that he was not believed, and is fearful of suffering harm in Bangladesh should he be required to return there. As is apparent both from the grounds of review and the applicant’s submissions, his dissatisfaction extends to the decision of the delegate, which this Court cannot review. The applicant submits that the Tribunal simply repeated the decision of the delegate.  I reject that contention.  On a fair reading of both the delegate’s and the Tribunal’s decisions, it is plain that the Tribunal brought an active intellectual process to the review. 

4. The applicant is concerned about adverse credibility findings made by the Tribunal, but those findings were open to the Tribunal on the material before it.  In my view, the applicant’s complaints are essentially with the merits of the Tribunal decision rather than its validity.  In other respects, in relation to the grounds advanced by the applicant, I agree with the Minister’s submissions.

First ground of review

1. In his first ground of review, the applicant contends that the Tribunal “erred in law” in concluding that the applicant was not persecuted for his political beliefs prior to his departure from Bangladesh. 

2. This ground constitutes nothing more than an expression of dissatisfaction with the Tribunal’s factual findings.  The Tribunal considered the applicant’s claim that he had been harmed because he was a BNP supporter but did not accept it.

Second ground of review

1. In his second ground, the applicant contends that the Tribunal erred in law in failing to find that the delegate had denied the applicant procedural fairness and in finding that the applicant was not a credible witness.

2. Two points should be made about this ground of review.

3. The first is that the role of the Tribunal was to conduct a review of the delegate’s decision.  Even if the delegate had not afforded the applicant procedural fairness, this “defect” is cured by the Tribunal reviewing the delegate’s decision.

4. Secondly, it has long been accepted that a decision-maker’s conclusion as to credibility are findings of fact par excellence.[13]  There is also no rule that a decision-maker may not reject a claimant’s testimony on credibility grounds unless there are no possible explanations for the delay or inconsistency.  Nor is there a rule that a decision maker must hold a "positive state of disbelief" before making an adverse credibility assessment in a refugee case.[14]  It was open for the Tribunal to find that the applicant was not a credible witness.

   [13] Re Minister for Immigration; ex parte Durairajasingham (2000) 168 ALR 407 at [67])

   [14] Kopalapillai v Minister for Immigration (1998) 86 FCR 547 at 558-559; SZRAD v Minister for Immigration [2012] FCA 901 at [26].

5. In his written submissions in relation to ground 2, the applicant refers to a country information report on Bangladesh from DFAT relied upon by the Tribunal. The applicant complains that the Tribunal relied upon the DFAT report to the exclusion of other country information available to the Tribunal.

6. The Minister has in his submissions, consistently with his obligation as a model litigant, raised the issue of a video regarding Bangladesh current affairs which the Tribunal declined to view.  In my view, there was no cause for the Tribunal to view the video which was offered to it.  It was apparent that the video did not bear on the applicant’s personal claims but was simply general information regarding political views within Bangladesh. 

7. The Tribunal stated in its reasons:[15]

   [The applicant] said that he wanted to show me a video regarding Bangladeshi current affairs.  I invited him to tell me what it was he wanted to say.  He said that I put to him that there was no risk for political members or leaders in Bangladesh but the government nominated channel never showed what was actually happening in Bangladesh.  He said that the people who were involved in politics did not have any peace.  I put to [the applicant] that the information to which I had referred came from the Australian Department of Foreign Affairs and Trade, not from the government of Bangladesh, so they were not just watching the government channel.  I noted that there were plenty of other sources of information in Bangladesh.  I put to him that if he had a video this suggested that the video was publicly available. [The applicant] agreed.

   [15] CB 167 [39].

8. The question whether a decision-maker could be said to have fallen into jurisdictional error by failing to view a video was considered by this Court in MZAHN & Ors v Minister for Immigration & Anor.[16]  In considering the question, Judge Jones first emphasised the following point made by the Full Court in Minister for Immigration v MZYTS[17] at [38] in relation to the approach taken in determining whether an applicant has a well-founded fear of persecution:

   That task could not be lawfully undertaken without a consciousness and consideration of the submissions, evidence and material advanced by the visa applicant most likely to give the Tribunal an accurate picture of the ongoing circumstances on the ground in [the country where persecution is feared] for him if he were to be returned there. While it is most certainly the case that “[i]t is for the applicant to advance whatever evidence or argument she [or he] wishes to advance in support of her [or his] contention that she [or he] has a well-founded fear of persecution for a Convention reason”, the Tribunal “must then decide whether that claim is made out”: Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510 at [187]. 

   [16] [2016] FCCA 337

   [17] (2013) 230 FCR 431

9. As Judge Jones’ decision reveals, whether a failure to view a video tape constitutes jurisdictional error is answered by reference to those cases that have considered whether a failure to take into account evidence constitutes jurisdictional error.  Although it is difficult to distil a precise formulation of the test from the decided cases,[18] the approach in these cases confirms that it remains the case that the failure to consider an item of evidence does not necessarily lead to the conclusion that the decision-maker committed jurisdictional error, but that jurisdictional error might be found if the evidence was probative and was central to the applicant’s claims.

   [18] see, for instance, Minister for Immigration v SZRKT (2013) 212 FCR 99; Minister for Immigration v MZYTS (2013) 230 FCR 431; Minister for Immigration v SZSRS (2014) 309 ALR 67

10. In the present case, there is no basis for a finding that the video was probative and central to the applicant’s claims such that the Tribunal was required to view it. Nor has the applicant put forward with clarity such a suggestion. It is apparent from [39] of the Tribunal’s decision that at the hearing, the applicant indicated that the video contained material about “Bangladeshi current affairs”.  Although he was invited to do so, no explanation was given by the applicant as to how material on the video fitted into the applicant’s claims.  The applicant gave no indication that the video contained material that was specific to the applicant’s claims or that it contained up to date country information. In these circumstances, there was no obligation on the Tribunal’s part to view the video.

Third ground of review

1. In his third ground of review, the applicant appears to take issue the Tribunal’s conclusion that the applicant was not a credible witness, even though the applicant had “presented all relevant documents and evidences (sic)” in support of his claims. Again, this complaint constitutes nothing more than an expression of dissatisfaction with the Tribunal’s factual findings.

2. To the extent that the applicant is contending that the Tribunal ought to have found that the applicant had a well-founded fear of persecution, this constitutes nothing more than a request for merits review. The Tribunal considered the applicant’s claims but did not accept them.

Fourth ground of review

1. In his fourth ground, the applicant complains about the Tribunal’s so-called failure to find that the delegate had erred in law in concluding that the applicant did not have a well-founded fear of persecution.  Again, even if the delegate had misapplied the relevant law in concluding that the applicant was not entitled to protection, this “defect” is cured by the Tribunal reviewing the delegate’s decision.

Fifth ground of review

1. In his fifth ground of review, the applicant again takes issue with the Tribunal’s alleged failure to find that the delegate had fallen into error.  I reject this contention for the reasons already given.

2. To the extent that the applicant is contending that the Tribunal should have found that the applicant would face punishment that was politically motivated, this constitutes an impermissible request for merits review.  The Tribunal was aware of the applicant’s claim that he would be harmed as a result of his political opinion.  The Tribunal did not accept that the applicant had been harmed in the past by virtue of his political opinion or that there was a real chance that this will occur in the future.

3. I conclude that the applicant has failed to establish that the decision of the Tribunal is affected by any jurisdictional error.  I will order that the application filed on 11 April 2016 be dismissed.

4. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the court scale.  This was a case of relatively low complexity.  Indeed, it might have been dealt with at the interlocutory stage, at a “show cause” hearing.  In similar circumstances in recent cases I have fixed costs in the sum of $5800.  The applicant did not wish to be heard on costs. 

5. I will order that the applicant pay the first respondent’s costs and disbursements incidental to the application fixed in the sum of $5800.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  22 February 2017