AVI17 v Minister for Immigration
[2019] FCCA 3768
•20 December 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AVI17 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 3768 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – applicant claiming a fear of harm in Bangladesh – applicant not believed – whether the Tribunal afforded the applicant procedural fairness and considered all relevant material considered – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.424AA, 438, 476 |
| Cases cited: DAO16 v Minister for Immigration (2018) 258 FCR 175 |
| Applicant: | AVI17 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1534 of 2019 |
| Judgment of: | Judge Driver |
| Hearing date: | 20 December 2019 |
| Delivered at: | Sydney |
| Delivered on: | 20 December 2019 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Mr A Downie of Minter Ellison |
ORDERS
The requirement for a show cause hearing pursuant to rule 44.12 of the Federal Circuit Court Rules 2001 (Cth) is dispensed with and the matter will proceed today as a final hearing.
The application filed on 24 June 2019 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,737.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1534 of 2019
| AVI17 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from Transcript)
The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). The decision was made on 29 May 2019. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa. Background facts relating to this matter are conveniently set out in the Minister’s outline of submissions filed on 5 December 2019.
The applicant is a citizen of Bangladesh who arrived in Australia on 22 August 2014 as the holder of a tourist (Subclass 600) visa.[1]
[1] Court Book (CB) 69
On 3 October 2014 the applicant applied for the visa.[2] The applicant claimed to fear harm in Bangladesh from the Awami League (AL), including its student arm, Chattra League, on account of his political involvement with the Jatiyabadi Chattra Dal and the Bangladesh National Party (BNP). The applicant claimed to fear that he would be physically assaulted, arrested and detained on return to Bangladesh, because of his political beliefs. In support of his claims, the applicant recounted that:[3]
a)after the AL came to power in 2008, he was involved in all movements with the BNP against the AL and attended meetings and rallies;
b)the meetings were attached and he was physically assaulted on many occasions;
c)in July 2014 he was organising meetings in his college when a group of Chattra League activists attacked them, injuring many;
d)his family home was attacked;
e)he went into hiding and had no choice but to leave Bangladesh; and
f)his family in Bangladesh have told him that the police are looking for him and that he should not return.
[2] CB 1–32
[3] CB 30–32
On 4 June 2015 the applicant attended an interview with the delegate.[4] On 5 June 2015 the delegate refused to grant the applicant the visa.[5] In arriving at this decision the delegate found the applicant's claims to be “general in nature and largely unsubstantiated”.[6]
[4] CB 72
[5] CB 69–83
[6] CB 80
On 1 July 2015 the applicant lodged an application for review to the then Refugee Review Tribunal which enclosed a further statement dated 2 July 2015 and a copy of the delegate's decision.[7]
[7] CB 84–116
On 13 October 2015 a different delegate of the Minister issued a “notification regarding the disclosure of certain information under s.438 of the Migration Act 1958” on the basis that s.438(1)(b) of the Migration Act 1958 (Cth) (Migration Act) applied to information provided to the Minister’s Department, being an “allegation relevant to file number CLF2014/126661” (certificate).[8] That delegate was of the view that the information “should not be disclosed to the applicant or the applicant's representative because information provided in the attached allegation was provided in confidence”.
[8] CB 125
On 21 October 2016 the applicant was invited to appear before the Tribunal to give evidence and to present arguments relating to the issues arising in his case.[9]
[9] CB 129
On 24 January 2017 the applicant appeared before the Tribunal with the assistance of his representative and a Bengali interpreter.[10]
[10] CB 157
On 2 February 2017 the Tribunal affirmed the delegate's decision.[11]
[11] CB 177–190
The applicant sought judicial review of the Tribunal's decision in this Court. On 7 August 2017 Judge Smith made orders by consent quashing this decision and requiring the Tribunal to reconsider and re-determine the application for review according to law. In so ordering, his Honour noted:[12]
1. The first respondent concedes that the second respondent denied the applicant procedural fairness and that this constituted a jurisdictional error, of the kind found in Minister for Immigration and Border Protection v Singh [2016] FCAFC 183, in circumstances where:
a) a delegate of the first respondent issued a notification pursuant to section 438(1)(b) of the Migration Act 1958 (Cth) on 13 October 2015 and the existence of the notification was not disclosed to the applicant in the course of the review by the second respondent; and
b) the document subject to the notification was relevant, or potentially relevant, to the issues arising on the review by the second respondent.
[12] CB 191–192
On 6 December 2018 the Tribunal, differently constituted, invited the applicant to appear before it to give evidence and to present arguments relating to the issues arising in his case.[13]
[13] CB 206–207
On 17 January 2019 the Tribunal received a submission from the applicant which annexed a media article dated 13 January 2019 from The Diplomat titled “Bangladesh's Deadly Election”.[14]
[14] CB 217–225
On 25 January 2019 the applicant appeared before the Tribunal with the assistance of a Bengali interpreter.[15] On 29 May 2019 the Tribunal affirmed the delegate's decision.[16]
[15] CB 226–227
[16] CB 235–244
Tribunal decision
The Tribunal recorded the oral evidence provided by the applicant at the hearing, and summarised the account of events on which his protection claims were based.[17] The Tribunal found that the applicant was not a witness of truth and that the account of events on which his protection claims were based was false.[18] The Tribunal reached this adverse conclusion for the following reasons:
a)the Tribunal found that the applicant had failed to give a consistent account of the extent to which he was attacked on the basis that the evidence in his written statement, to the delegate and to the Tribunal about the approximate number of occasions on which he was attacked was widely divergent;[19]
b)the applicant had failed to satisfactorily account for the discrepancies in his evidence about the timing of the attacks;[20] the period in which he fled from his family home;[21] the police going to his family home and the events that caused him to stay with relatives;[22] the timing of the police going to his family home;[23] and, being of adverse interest to and being threatened by Jamaat Islami;[24]
c)the Tribunal found it highly improbable that as the applicant had made the decision to leave his country and had obtained a visa for that purpose, he would continue with his activities and attending college where he could be located and its concern was not allayed by the applicant's explanation;[25] and
d)the Tribunal was not satisfied with the applicant's response to concerns that his actions were not consistent with someone who genuinely feared harm, having regard to the fact that he had obtained a visa to travel to India in early March 2014 yet chose not to leave Bangladesh until five months later and, even then, some six weeks after he was granted a visitor visa to come to Australia.[26]
[17] CB 235 at [8]–[18]
[18] CB 242 at [38]
[19] CB 239 at [19]–[20]
[20] CB 239 at [21]
[21] CB 239 at [22]–[23]
[22] CB 240 at [25]
[23] CB 240 at [26]
[24] CB 240 at [28]
[25] CB 241 at [30]–[33]
[26] CB 242 at [34]–[37]
For these reasons the Tribunal found there was no credible evidence that the applicant suffered harm in Bangladesh, that anyone in Bangladesh seeks to harm him or about why the applicant left Bangladesh and why he does not want to return.[27] Consequently the Tribunal found that the applicant did not hold a well-founded fear of persecution based on a Convention reason and, for the same reasons, found that the applicant did not meet the complementary protection criterion,[28] and affirmed the decision not to grant the applicant the visa.[29]
[27] CB 243 at [42]
[28] CB 243 at [42]
[29] CB 243 at [47]
The Tribunal recorded that it invited the applicant to comment on or respond to information received by the Minister’s Department to the effect that the applicant had applied for protection on false grounds, observed the applicant responded by denying the allegation, and recorded that it told the applicant that it would disregard this information as its source was unknown to the Tribunal and the veracity of that source could not be tested.[30]
[30] CB 243 at [43]
The present proceedings
These proceedings began with a show cause application filed on 24 June 2019. The applicant continues to rely upon that application. There are four particularised grounds in it:
Ground 1
1. The Administrative Appeals Tribunal (hereinafter referred as “the Tribunal”) denied the applicant procedural fairness and that this constituted a jurisdictional error, of the kind found in Minister for Immigration and Border Protection v Singh [2016] FCAFC 183.
Particulars
a)The delegate of the Minister issued a notification pursuant to section 438(1)(b) of the Migration Act 1958 (Cth) on 13 October 2015 and the existence of the notification was not disclosed to the applicant in the course of the review by the second respondent.
b)The document subject to the notification was relevant, or potentially relevant, to the issues on the review by the Immigration Assessment Authority.
c)On 2 February 2017, the Tribunal differently constituted affirmed the decision of the delegate dated June 2017.
d)On 7 August 2017, by consent, the Court set aside that decision and remitted back to the Tribunal. This was due to the non-disclosure of a certificate issued by the delegate pursuant to section 438(1)(b) of the Migration Act 1958 (Cth).
e) The Tribunal said “…..it would disregard this information as its source was unknown to the Tribunal and the veracity of that source could not be tested by the Tribunal. While the Tribunal takes that stance with respect to that information, for the reasons given above, the Tribunal finds that the account of events on which the applicant’s protection claims are base is false.: at [paragraph 43].
f) A fair reading of the Tribunal’s decision dated 29 may 2019; the said notification document had influenced the Tribunal said decision in disbelieving on several of his claims for protection.
2.Where the political and security situation in a country is fluid, it is important for the decisionmaker to consider the situation for the applicant into the reasonably foreseeable future on his or her return to the receiving country. "Where the political situation in a country is fluid, political developments concerning human rights and civil rights can move in different direction, including backwards by deteriorating ... "
Particulars
a)Human Rights Watch World Report 2018 states "Bangladesh security forces-particularly the Detective Branch of the police, Bangladesh Border Guards (BGP), the Directorate General Forces Inspectorate (DGFI), and the Rapid Action Battalion (RAB)-have a long history of enjoying impunity for serious violations including arbitrary arrests, torture, enforced disappearances, and extra judicial killings, a pattern that did not abate in 2017. Law enforcement authorities continued to arrest opposition activities and militant suspects, holding them in secret detention for long periods before producing some in court. Several others, according to security forces, were killed in "gunfights," leading to concerns over extrajudicial killings. At time of writing, scores remained victims of enforced disappearances.
b)There is independent country information available which indicates that the security situation in Bangladesh is volatile, that there is sometimes politically motivated violence there and that there are often clashes between members and supporters of rival parties and law enforcement agencies. The current Awami League government, senior members of the BNP face a high risk of politically motivated arrest and violence both from security forces and ruling party activists: see DFAT Country Information Reports, Bangladesh, 2 February 2018, 5 July 2016, 20 October 2014"
c)The DFAT Country Information Report Bangladesh 2 February 2018 said "The security in Bangladesh is volatile and can deteriorate quickly with little warning. Security threats include politically-motivated violence, particularly ahead of the next nation elections in late 2018 or early 2019"
d)The Tribunal failed to consider and/or address the written submissions dated 14 January 2019 of the applicant of the above information constitute an error in the reasoning process of the Tribunal which is a jurisdictional error. See AHX15 v Minister for Immigration and Border Protection [2015] FCA 1183; Soliman v University of Technology, Sydney [2012] FCAFC 146. In another case last year, the Full Federal Court found that the reasons did not show a sufficient grappling with the issues in the matter. (See ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174.
3.The Tribunal failed to consider the Country Information which was crucial to the applicant's claims of protection in Australia.
Particulars
a)Human Rights Watch World Report 2018 states "Bangladesh security forces-particularly the Detective Branch of the police, Bangladesh Border Guards (BGP), the Directorate General Forces Inspectorate (DGFI), and the Rapid Action Battalion (RAB)-have a long history of enjoying impunity for serious violations including arbitrary arrests, torture, enforced disappearances, and extra judicial killings, a pattern that did not abate in 2017. Law enforcement authorities continued to arrest opposition activities and militant suspects, holding them in secret detention for long periods before producing some in court. Several others, according to security forces, were killed in "gunfights," leading to concerns over extrajudicial killings. At time of writing, scores remained victims of enforced disappearances.
b)Since the start of the election campaign on December 10, opposition leaders in Bangladesh have come under attack almost on a daily basis. According to local and international media, some campaigning opposition candidates have been publicly beaten by ruling party cadres or sent to jail on false accusation. As many as 21,000 opposition leaders and activists were arrested since the announcement of the election schedule. Ruling party miscreants torched opposition campaign offices, attacked female opposition contestants and accosted a motorcade including Hossain. There are allegations of rampant violation of electoral codes. (Article by Niaz asadullah and Antonio Savoia dated December 24, 2018 in The Diplomat).
c) failing to consider the said Country Information where the failure is legally unreasonable.
4. The Tribunal is obliged to take into account the possibility that the applicant was imputed as an BNP supporter or as a person with BNP links before he left Bangaldesh and the applicant's family has ongoing links with the BNP. If the delegate had taken this possibility into account, it may have affected the delegate's assessment of whether the applicant faces a real chance of persecution on his return to Bangladesh.
Particulars
a) The harm that the applicant would face if he were to return to Bangladesh is due to the essential and significant reasons of his real or imputed political opinion as supporter of BNP and is motivated and deliberate conduct of his persecutors and it amounts to systematic and discriminative conduct: see Ram v MIEA (1997) 190 CLR 225; and MIMA v Haji Ibrahim (2000) 204 CLR 1 at [95].
b)The Tribunal failed to hold that the delegate had not taken this possibility and that had affected the real chance of persecution of the applicant on if he were to return to Bangladesh.
The application is supported by an affidavit filed with it, which I received as a submission. In the affidavit the applicant asserts he suffers from post-traumatic stress disorder. His demeanour at today’s hearing was subdued. He is quietly spoken and somewhat hesitant. I am satisfied, however, that he was fully cognisant of the proceedings today and able to articulate his oral submissions.
I have before me as evidence the court book filed on 15 August 2019.
The Minister filed pre-hearing written submissions in accordance with procedural orders made by a registrar. These were read to the applicant by the interpreter before I came on the bench. At the outset I informed the applicant and the Minister’s solicitor that I found the first ground in the application arguable. The parties agreed to me dispensing with the requirement for a show cause hearing and proceeding with the hearing on a final basis. I invited oral submissions from the applicant.
The applicant told me that he considers the Tribunal did not consider the real situation in Bangladesh. He requests a reconsideration. He told me that circumstances in Bangladesh had deteriorated since the Tribunal decision. Such a post-decision deterioration in circumstances would be a matter for the Minister rather than the Tribunal in the absence of jurisdictional error. In his submissions in reply the applicant reiterated that the situation in Bangladesh is bad. He indicated his intention to seek legal assistance.
In relation to the first ground of review it is remarkable that the Tribunal has apparently succeeded in repeating the error the subject of judicial review before Judge Smith and referred to by the Tribunal in its reasons. The error is to fail to inform the applicant of the existence of the certificate issued under s.438 of the Migration Act. It might seem artificial to require that obligation of disclosure to be fulfilled in circumstances where the applicant was plainly aware of the certificate because it featured in his successful appeal to this Court in respect of the earlier Tribunal decision. Be that as it may, the Minister concedes that the Tribunal was in error in apparently not disclosing the certificate.
The certificate is reproduced at CB 125. On its face it appears to be valid. It is based upon an obligation of confidence in relation to a person who provided information to the Minister’s Department with an expectation that it would be treated in such a way as to protect his or her identity. The letter purportedly covered by the certificate is reproduced at CB 126. There are some wild allegations in the letter. The nature of those allegations would cause a cautious decision-maker to treat the allegations with circumspection.
The Tribunal dealt with the information at [43] of its reasons:[31]
Finally, the Tribunal records that, pursuant to s.424AA of the Act, the Tribunal invited the applicant to comment on or respond to information received by the Department to the effect that the applicant has applied for protection on false grounds.[32] The applicant elected to comment on this information at the hearing and did not seek extra time. He denied the allegation. The Tribunal told the applicant that it would disregard this information as its source was unknown to the Tribunal and the veracity of that source could not be tested by the Tribunal. While the Tribunal takes that stance with respect to that information, for the reasons given above, the Tribunal finds that the account of events on which the applicant’s protection claims are based is false.
[31] CB 243
[32] This information appears at folio 36 of the first Tribunal file. The information was the subject of a certificate issued by the Department pursuant to s.438(1)(b) of the Act.
It is apparent that the Tribunal correctly treated the certificate as valid and correctly considered its discretion whether to disclose the information covered by the certificate. The Tribunal decided to disclose the information under s.424AA of the Migration Act. The applicant elected to comment on the information at the hearing and denied the allegations in the letter. The Tribunal told the applicant that it would disregard the information and it appears the Tribunal has done so. In the circumstances I have formed the view that the error made by the Tribunal was not material. In other words, it did not affect the outcome.
In that regard I have taken into account the wide-ranging credibility concerns expressed by the Tribunal in its reasons in relation to the applicant’s claims. Plainly, the outcome did not turn upon either the certificate or the information covered by it. Rather, it turned upon those adverse credibility concerns. I otherwise agree with the Minister’s submissions in relation to Ground 1.
The applicant contends that the Tribunal denied him procedural fairness and thus fell into jurisdictional error because it was influenced by the information behind the certificate in disbelieving his claims for protection. The information behind the certificate was a letter dated 7 September 2015, marked with the subject “Lodged false refugee”, which raised various allegations about conduct of the applicant and his family in Bangladesh and Australia. While it is not apparent from the Tribunal's decision record that it disclosed the existence of the certificate to the applicant, it did provide the applicant with an opportunity to comment on the substance of the information behind it and, having heard his response, told the applicant that it would disregard the information on the basis that the source was unknown and it was consequently unable to test the veracity of that source.[33] In those circumstances I accept that any such failure of the Tribunal in not disclosing the existence of the certificate was not material as there is no basis upon which to infer that the Tribunal was influenced by or otherwise relied upon the information behind the certificate. Notably, the Tribunal's adverse credibility findings were reached on the basis of a multitude of inconsistencies identified the applicant's evidence for which he did not provide a satisfactory explanation. On this basis any such failing was not material because it could not have realistically deprived the applicant the possibility of a successful outcome.[34]
[33] CB 243 at [43]
[34] Minister for Immigration v SZMTA (2019) 93 ALJR 252 at [2]–[3] per Bell, Gageler and Keane JJ
In my view the remaining grounds in the application do not raise even an arguable case of jurisdictional error. I agree with the Minister’s submissions in relation to those grounds.
Ground 2
The applicant details various country information about the security situation in Bangladesh and contends that the Tribunal failed to consider and/or address his written submission dated 14 January 2019 such that it fell into jurisdictional error. Contrary to the applicant's contention, the Tribunal expressly considered his written submissions dated 2 July 2015 and 14 January 2019.[35] The Tribunal found that these submissions did not assist the applicant because they were predicated on the basis that he supported an opposition party in Bangladesh, a claim which it did not believe for the reasons given. This was a conclusion that was open to the Tribunal on the basis that it had formed the view that the applicant was not a witness of truth and that the account of events on which his protection claims were based was false.
[35] CB 242 at [40]
To the extent that this ground may be construed as a challenge to the Tribunal's adverse credibility findings, the findings were open on the material, made in a procedurally fair manner and had a logical and probative basis.[36] The Tribunal's adverse credibility findings were squarely based on the applicant's written and oral evidence given at different times, which the Tribunal variously compared and assessed to be inconsistent, highly improbable, and implausible, among other things. These matters went to the core of the applicant's claims and, in turn, to his credibility. Having made the findings that it did, it was open to the Tribunal to disbelieve his claims.
[36] DAO16 v Minister for Immigration (2018) 258 FCR 175 at [30] per Kenny, Kerr and Perry JJ
Ground 3
The applicant details various country information which bears some resemblance to the country information provided in his written submissions to the Tribunal, and alleges that the failure of the Tribunal to consider that information was legally unreasonable. Contrary to the applicant's contention, the Tribunal expressly considered his written submissions dated 2 July 2015 and 14 January 2019[37] and found that they did not assist the applicant. For the same reasons given above in relation to Ground 2, the Tribunal's approach does not disclose that it fell into jurisdictional error, either in relation to the way in which it assessed the information, or in relation the adverse credibility findings which underpinned its assessment. Generally it must also be observed that the choice and assessment of the weight to be given to country information is a matter for the Tribunal.[38]
[37] CB 242 at [40]
[38] NAHI v Minister for Immigration [2004] FCAFC 10 at [13] per Gray, Tamberlin and Lander JJ
Ground 4
The applicant unclearly contends that the Tribunal failed to find that the delegate had not taken the possibility of his BNP links into account. The Tribunal was under no obligation to make any findings about the conduct of the delegate and, furthermore, any failings of the delegate are not within the jurisdiction of this Court.[39]
[39] Migration Act, s.476(2)
The Tribunal, having found that the applicant claimed protection on the basis that he was a supporter of the Chatra Dal (a student wing of the BNP), did not believe his claims that he had brothers who were politically active in Bangladesh nor that he undertook political activities in Bangladesh or Australia. In these circumstances it was unnecessary for the Tribunal to make a specific finding on this matter because the factual premise upon which this contention rests was rejected.[40] The Tribunal was plainly cognisant of the applicant’s claims and evidence and its findings were sufficiently dispositive of those claims.
[40] WAEE v Minister for Immigration (2003) 236 FCR 593 at [47] per French, Sackville and Hely JJ
I conclude that the applicant has failed to establish that the decision of the Tribunal is affected by any jurisdictional error. The decision is, therefore, a privative clause decision and the application must be dismissed. I will so order.
In consequence of the dismissal of the application the Minister seeks an order for costs fixed in the sum of $5,600. The applicant sought a reduced figure. The matter was listed today for a show cause hearing. The Minister prepared for a show cause hearing. I elected to dispense with the requirement for a show cause hearing at the outset of today’s hearing. That decision by me, however, has not had any impact on the Minister’s costs. In the circumstances, I have formed the view that costs should be awarded in accordance with the scale as if the matter had proceeded as a show cause hearing.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 8 January 2020
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