AWH16 v Minister for Immigration
[2018] FCCA 3246
•29 October 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AWH16 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 3246 |
| Catchwords: MIGRATION – Application for review of Administrative Appeals Tribunal decision – credibility – whether the Tribunal misconstrued the facts – whether the Tribunal did not provide “solid reasons” – whether the Tribunal correctly applied the complementary protection criterion – whether the Tribunal was biased – no meaningful particulars in the grounds – grounds seek impermissible merits review – proposed amended grounds seek impermissible merits review – no jurisdictional error – leave to amend application refused – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.418, 424, 425, 476 Federal Circuit Court Rules 2001 (Cth), pt.44 |
| Cases cited: CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496; (2016) 70 AAR 413 Randhawa v the Minister of Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437; (1994) 124 ALR 265 |
| Applicant: | AWH16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 894 of 2016 |
| Judgment of: | Judge Nicholls |
| Hearing dates: | 27 April 2018, 1 May 2018, 28 June 2018 and 29 October 2018 |
| Date of Last Submission: | 29 October 2018 |
| Delivered at: | Sydney |
| Delivered on: | 29 October 2018 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Respondents: | A Keevers of Sparke Helmore |
ORDERS
The application made on 12 October 2016 for leave to amend the grounds of the application is refused.
The application made on 13 April 2018 to further amend the grounds of the application is refused.
The application made on 15 April 2016 is dismissed.
The Minister’s application for costs in this matter sought against Mr Jyoti Bharati, solicitor, of 36 Bexley Road Campsie NSW 2194 and 370A Forest Road, Level 1, Corner Forest and Harrow Roads Bexley NSW 2207, is set down for hearing at 9.30am on 12 November 2018 before Judge Nicholls in Court 8.2, 80 William Street, Sydney.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 894 of 2016
| AWH16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex Tempore; Revised from Transcript)
This is an application made on 15 April 2016 pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) seeking review of the decision of the Administrative Appeals Tribunal (“the Tribunal”), which, on 28 March 2016, affirmed the decision of the Minister's delegate (“the delegate”) to refuse a protection visa to the applicant.
In evidence before the Court is a bundle of relevant documents filed and tendered by the Minister (excluding pages 136, 138 and 140) (“the Court Book” – “CB”, “RE1”). Also in evidence is the affidavit of the applicant made on 15 April 2016 and the affidavit of Andrew Lyall Keevers, Solicitor, made on 1 May 2018.
Background
The applicant is a citizen of Bangladesh (CB 34). He arrived in Australia as an “unauthorised maritime arrival” on 3 January 2013 (CB 35 and see CB 1 to CB 20). The applicant made an application for a protection visa which was received by the Minister's department on 22 May 2013 (CB 21 to CB 85). The applicant's claims to fear harm were contained in a Statutory Declaration dated 20 May 2013 (CB 59 to CB 63). The applicant had previously attended an “Entry Interview” with the Minister's department on 14 January 2013 (“the entry interview”) (CB 1 to CB 20).
The applicant claimed to fear harm from the Awami League (“AL”), a political party in Bangladesh. He claimed to have returned to Bangladesh on 25 August 2012 after living and working in Malaysia for thirteen years. He claimed that on 26 August 2012, he was home alone and “4 masked men” entered the house at 2:30am with guns. They held a gun to the applicant's head and told him to “do everything [they] say” ([1] at CB 59 to [19] at CB 60).
The applicant claimed that the men demanded the keys to the “valuables cupboard”, which he gave them, and then “they took everything out” of it. The men took $US65,000 cash, gold, valuable wallets, jewellery and blankets. The applicant claimed that it was the AL who robbed him because of the “way [he] was robbed” was “typical of them” ([21] - [23] at CB 60).
On 27 August 2013 (in context, this should be a reference to 2012), the applicant claimed that he received a “threat letter” from the men who had robbed him previously which said that they would be returning the next day, and demanded “2 million Bangladeshi taka” otherwise they would kill the applicant. The next day the applicant took the letter to the police who indicated that the applicant should expect such threats as he had returned from overseas and would be perceived as wealthy. The police also sought a bribe from the applicant, offering to investigate for money ([25] at CB 60 to [31] at CB 61).
The applicant claimed that it was not safe for him to remain at his home anymore, so he went and stayed with a friend. The applicant was informed that on 28 August 2012, “some men” had “burned down [his] house and all [his] belongings” ([32] - [34] at CB 61).
The applicant claimed to fear harm from the AL on return to Bangladesh because he did not give them the money they demanded and this would make them “assume” that he supported “the opposition” political party. Further, the applicant stated that he had not said which specific political party was targeting him in the entry interview because he had not been asked that question ([38] – [41] at CB 61). See also [5] of the Minister’s written submissions of 19 April 2018 which, on the evidence, is a fair summary of the applicant’s claims, which I adopt for the purposes of this judgment:
“The applicant’s claims for protection were advanced in his Irregular Maritime Arrival Entry Interview (CB 1-17), a statutory declaration annexed to his visa application (CB 59-63), an interview with the delegate and the Tribunal hearing. His claims centred on his fear of harm in Bangladesh due to a robbery of which he claimed to be the victim, as well as his imputed wealth and political opinion. In summary those claims were as follows:
5.1 The applicant worked in Malaysia for some 13 years, where he saved an amount of money and some gold, which he brought back to Bangladesh.
5.2 On 26 August 2012, the applicant was robbed in his home at gunpoint by 4 masked men, who took his money, gold and valuables. The applicant ‘knew’ it was the Awami League (AL) that had robbed him because it ‘was definitely their style of attack’.
5.3 The next day, the applicant received a ‘threat letter’ from the people that robbed him, demanding more money, or they would kill him and burn down his house. The applicant tried to report this letter to the police but they refused to investigate unless he paid them bribes. The applicant refused and went to stay with a friend. The next day, the applicant was told that some men had burned down his house.
5.4 AL supporters would think that the applicant’s refusal to pay them the money that they demanded was a result of his having joined the opposition party. If the applicant was returned to Bangladesh, people would suspect that he was very rich, because he had been in Australia, and would target him again. Even if AL did not kill him, the applicant would not be able to subsist because they would take all his money. The authorities would do nothing to protect the applicant because AL was in power at the moment.
5.5 The applicant would suffer significant harm as a failed asylum seeker who did not hold a Bangladeshi passport.”
The delegate refused the application for the visa on 28 October 2014 (CB 92 to CB 110). The applicant applied for review to the Tribunal on 31 October 2014 (CB 111 to CB 123). The applicant was invited to, and attended, a hearing before the Tribunal on 22 February 2016 (CB 126 to CB 131). The Tribunal affirmed the delegate's decision on 28 March 2016 (CB 133 to CB 146 and see the applicant’s affidavit of 15 April 2016).
The Tribunal’s Decision
The Tribunal put a number of its concerns to the applicant at the hearing ([11] at page 4 to [25] at page 7 of the Tribunal’s decision record). This included that the Tribunal found it difficult to accept that the applicant “would have thought it safe to carry back $US65,000 in cash to Bangladesh” ([14] at CB 137). Further, that on the evidence before the Tribunal, it did not appear that “one of the five reasons set out in the Refugees Convention had been the essential and significant reason why he had been robbed”. Further, it did not appear that the police in Bangladesh did not protect him for one of the “five reasons set out in the Refugees Convention” ([18] - [19] at page 8 of the Tribunal’s decision).
The Tribunal found it “very difficult to accept that there [was] any truth in the claims he [had] made in support of his application” ([26] at pages 7 to 8 of the Tribunal’s decision record). Further, the Tribunal noted that the applicant had said he believed that the robbers were associated with the AL, but had not suggested that “they robbed him for reasons of his real or imputed political opinion”. The applicant then claimed that the AL would think that he had joined the opposition party because he did not pay them the money they demanded. The Tribunal found that “there was nothing in [the applicant's] evidence to suggest that this [was] true and even [the applicant] himself said that this was just a guess” ([28] at page 8 of the Tribunal’s decision record).
The Tribunal also found that there did not appear to be a “basis in the evidence for any of [his] claims” and considered “that they simply amount[ed] to baseless speculation”. Further, the Tribunal did not accept that the applicant had brought back $US65,000, or that he had been subsequently “robbed of everything” as he had claimed. The Tribunal did not accept that a “threat letter” had been left in his mailbox or that the police in Bangladesh demanded money from him in order to investigate ([29] at page 8 of the Tribunal’s decision record).
The Tribunal found that the applicant did not meet either criteria for the grant of the protection visa and affirmed the delegate's decision on this basis ([30] to [35] at pages 8 to 10 of the Tribunal’s decision record). See also [6] – [10] of the Minister’s written submissions of 19 April 2018, which on the evidence, is a fair summary of the Tribunal’s decision record, and which I adopt for the purposes of this judgment:
“[6] The Tribunal had significant concerns regarding the applicant’s credibility (CB 140, [29]). On the basis of these credibility concerns and DFAT country information that contradicted various aspects of the applicant’s claims, the Tribunal rejected the totality of the applicant’s claims (CB 140, [30]).
[7] The Tribunal put to the applicant that even if it accepted that he had been robbed, there was nothing to suggest that the ‘essential and significant reason’ for this robbery was ‘one of the five reasons set out in the Refugees Convention’ (CB 138, [18]). The Tribunal noted that before the delegate, the applicant had confirmed that he had been targeted for financial reasons, rather than due to his political opinion (CB 135, [9]). The Tribunal referred to the applicant’s new claim that he would be imputed as having joined the opposition party because of his refusal to pay the robbers the additional money they had demanded in the letter (CB 140, [28]). However, on the basis of the absence of any evidence to support the applicant’s claim that he had been, or would be, targeted because of his imputed political opinion, the Tribunal rejected this claim as ‘baseless speculation’ (CB 140, [29]).
[8] The Tribunal then proceeded to consider the applicant’s claim that the authorities in Bangladesh would not protect him. The Tribunal put to the applicant DFAT country information to the effect that the police in Bangladesh generally provided adequate protection to citizens (CB 138, [20]), and noted his response that this was not the reality in Bangladesh. The Tribunal found that the applicant would not require protection from the police and that even if he did, protection would not be withheld for a Convention reason (CB 140, [30]).
[9] The Tribunal noted the applicant’s claims in relation to his fear of harm as a failed asylum seeker without a passport. However, on the basis of DFAT country information and its earlier findings that the applicant would not be imputed with a political opinion opposed to AL, the Tribunal rejected these claims (CB 141, [31]).
[10] Having rejected all of the applicant’s claims, the Tribunal found that the applicant was not a person to whom Australia had protection obligations under either ss.36(2)(a) or 36(2)(aa) of the Act, and accordingly, affirmed the decision under review (CB 142, [34]).”
The Application to the Court
The grounds of the application to the Court are in the following terms:
"1. The AAT made a jurisdictional error when it mistook and misconstrued the facts. The AAT discarded all if the oral and written evidence without giving any solid reasons. The AAT failed to apply the correct test in relation to Complementary Protection provision contained in section 36(2)(aa) of the Migration Act. It did not follow Rules of Real Risk Test in assessing grounds presented by the applicant for believing foreseeable consequences if the applicant removed from Australia to Bangladesh.
Particulars
The AAT failed to elaborate the meaning of 'Significant harm ' for the purpose of the Complementary protection criterion as defined in Subsection 36(2A) of the Act. Applicant claims that the AAT did not elaborate in finding of reasons what is definition of Substantial background and Marginal backgrounds. The AAT failed to give a reasonable explanation about the circumstances for Bangladesh in which Substantial Backgrounds will cover. The applicant claims that the AAT used a limited information about the Bangladesh current situations and made decision with closed mind. Every country has different circumstances and it cannot be apply for one particular country.
The Applicant claims that he was robbed by the supporters of the Awami League which is in power. The applicant wanted to present his argument that the political party in power was doing the most atrocities at the moment in Bangladesh. The applicant said that Awami League could afford to do these atrocities because they were covered by the political power.
The AAT did not want to believe that the robbers were connected to Awami League and they have connection with the Government. The applicant said that his incident was in front of the news but the in reality the common people on the streets or the common masses who did not have political clout were facing deaths or they consistently struggling to be alive.
[2] The applicant claims he was denied natural justice and procedural fairness when his all of the oral and written evidences were treated as false without any proper investigation by the First or Second Respondents.
Particulars:
The applicant said with the firm believe that reason behind robbery was political and it comes under one of the five reasons set out in the Refugee Convention. The reason behind robbery was political. The AAT made decision with preoccupied thought that the applicant’s claim was not political because of that reason the AAT discredited all the written and oral evidences presented by the applicant. Applicant claims that he was denied procedural fairness.”
[Errors in the original.]
Before the Court
The parties first appeared before a Registrar of the Court on 26 May 2016, and various orders were made, by consent, for the conduct of the matter. These included that the applicant be given the opportunity to file any amended application and further evidence by way of affidavit. The applicant filed no further documents in this regard. The orders also provided that the parties file written submissions before the hearing. The applicant filed written submissions on 12 October 2016 (despite a hearing date having not yet been set) (“the first written submissions”).
The parties appeared before a Registrar of the Court again on 27 October 2016, and various orders were made, including further orders that the parties file written submissions before the final hearing. The applicant filed written submissions on 13 April 2018 (“the second written submissions”). The Minister filed written submissions on 19 April 2018.
At the hearing on 27 April 2018, the applicant appeared in person and was assisted by an interpreter in the Bangla language. The Minister was represented by a solicitor.
During the hearing, when asked to explain what was in his written submissions, the applicant indicated that he was not able to assist in this regard, as he had not drafted them. He stated that a person he referred to as “Bharati”, who was a solicitor, had drafted his first and second written submissions, and had assisted him in the preparation of his application to the Court.
There was no legal representative on the Court’s file in relation to the applicant. The Minister’s solicitor provided a possible telephone number for a solicitor with the name “Bharati”, and an attempt was made to contact this person to gain an understanding of their involvement. However, the number had been disconnected, and the hearing continued.
Later in the hearing, the interpreter who assisted the applicant on that occasion attempted to address the Court in a manner that was not consistent with the proper conduct of an interpreter. In particular, the interpreter made statements that reflected on her objectivity. They revealed her willingness to enter into argument. I note for the record that this was a different interpreter to the interpreter who is currently before the Court.
While there may have been some genuine motivation on the part of the interpreter on that occasion, it was inappropriate that the hearing continue. The interpreter was excused and the hearing was adjourned part heard.
The hearing resumed on 1 May 2018. The Minister was again represented by a solicitor and the applicant appeared in person. He was assisted by a (different) interpreter in the Bangla language. Since the previous hearing, as a model litigant, the Minister, through his solicitor, had made attempts to locate a solicitor with the name “Bharati”. He filed in Court the affidavit of Mr Keevers, made on 1 May 2018 in this regard, which was read into evidence.
The applicant was also cross examined. In his evidence, he confirmed that a photograph annexed to the Minister’s solicitor’s affidavit was “Mr Bharati”, the solicitor who had been assisting him. He stated that he first met Mr Bharati at Mr Bharati’s house in Campsie where he provided Mr Bharati with “all my documents”. Mr Bharati said he would prepare the applicant’s “documents”, and charged the applicant a fixed sum for his work. There was no written agreement in this regard.
The applicant’s evidence was that in the following week, he returned to Mr Bharati’s house after he had received a call from him. Mr Bharati gave the applicant “papers” to “submit” to the Court. The applicant confirmed that these “papers” were his application to the Court. The written submissions were provided by Mr Bharati at a later date.
The applicant confirmed that nothing in the documents given to him by Mr Bharati had been “translated” for him, nor did Mr Bharati speak to him in Bangla. He communicated in Hindi, a language with which the applicant said he had “some” understanding.
When asked whether he had any understanding of what was in the documents, the applicant answered “No. He didn’t let me under[stand] what was in the documents”. However, he also gave evidence that Mr Bharati had explained what was in the documents in “simple words”. The applicant accepted what Mr Bharati told him “because he was a solicitor”.
The applicant also gave evidence that he had asked Mr Bharati whether he would attend the hearing before the Court on 27 April 2018, but was told that Mr Bharati “never” attended at Court. He also gave evidence that he “went to” Mr Bharati on the morning of the second occasion of the final hearing (at his house) (1 May 2018) to again ask him to appear. However, Mr Bharati advised that he was “sick” and could not attend.
In these circumstances, I adjourned the hearing again until 28 June 2018 and made orders compelling Mr Bharati to attend on that day.
The hearing resumed on 28 June 2018. On that occasion, the Minister was again represented by a solicitor. Mr Bharati, of Theodore Solomon & Partners, was also in attendance, as was the applicant, and an interpreter in the Bangla language. The applicant confirmed that he was content for Mr Bharati to speak on his behalf.
Towards the conclusion of Mr Bharati’s submissions on the application, and before the question of his conduct in his assistance to the applicant had been properly addressed, Mr Bharati indicated that he was feeling unwell. It appeared that Mr Bharati was having some kind of medical episode. The hearing was again adjourned and an ambulance was called. Mr Bharati was taken to hospital, accompanied by the applicant.
Mr Bharati commenced his submissions to the Court, which, in effect, were as follows. He was unable to explain why the written submissions did not appear to necessarily relate to the grounds of the application and, made submissions to the effect of seeking to explain the applicant’s inability to explain to the Tribunal some of the elements of his claims to fear harm.
In essence, Mr Bharati’s submissions before the Court were to complain about the Tribunal decision. He submitted that the applicant had told the truth, that the Tribunal should have believed the applicant, and that the Tribunal did not properly investigate the applicant’s claims. This was said to be particularly so in relation to the “robbery” claim (see [4] – [5], [8] (at [5.2]) and [10] – [12] above).
The following can be said in relation to Mr Bharati’s submissions before the Court.
First, matters of credibility of an applicant’s claims are, of course, for the Tribunal to determine within the proper exercise of its jurisdiction. Credibility is a finding of fact for the Tribunal to make. Of course, such findings of fact need to be grounded upon probative material and logical grounds (CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496; (2016) 70 AAR 413 at [40]).
The Tribunal does not have to uncritically accept what an applicant says (Randhawa v the Minister of Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437; (1994) 124 ALR 265).
In the current case, on the evidence that is before the Court, the Tribunal’s disbelief of the applicant’s evidence, and his claims, was reasonable, given what was before it. Its analysis and findings were probative of the evidence and information put before it. The Tribunal gave a reasonable explanation which underpinned its adverse findings on the applicant’s credibility.
Nor was it clear what Mr Bharati meant by the term that the Tribunal “did not investigate”. It is now well-established that the Tribunal is under no general duty to conduct any investigation (Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123; (2009) 111 ALD 15 (“SZIAI”), Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12; (2004) 78 ALJR 992 (“SGLB”) and Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594; (2011) 85 ALJR 327; (2011) 273 ALR 22 (“SZGUR”)). It is for an applicant to put before the Tribunal the matters that it wants the Tribunal to consider, such that the Tribunal can be satisfied that the visa should be granted (SZIAI, SGLB and SZGUR).
As was said, however, by the High Court in SZIAI, there are certain limited circumstances where the obligation to investigate may be enlivened, but none of those circumstances exist in the current case (SZIAI at [25]):
“Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a ‘duty to inquire’, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case. There are two reasons for that.”
It became clear, therefore, that Mr Bharati’s assertion that the Tribunal did not investigate, particularly about the “robbery” claim, was Mr Bharati’s attempt to say that the Tribunal should have believed the applicant, rather than disbelieve him about those aspects of the “robbery” claim that it rejected.
Other assertions made by Mr Bharati really did no more than reiterate what was set out in the documents that he had drafted.
As I said earlier, on that previous occasion (28 June 2018), Mr Bharati appeared to fall ill and the hearing was adjourned until today. On resumption of the hearing today, the applicant appeared in person. He was again assisted by an interpreter in the Bangla language (a different one from the one who caused the miscarriage of the previous hearing).
The applicant submitted that Mr Bharati was ill and that he could not come to Court again. He stated that he would continue with the hearing on his own. I was satisfied that it was of no utility to await any future return to health, by Mr Bharati. This was because it was clear from what the applicant said that Mr Bharati was not intending to ever come to Court on this matter again.
In any event, given the submissions made previously by Mr Bharati, and for reasons which I will explain later, given what Mr Bharati has drafted for the applicant, it is quite clear that Mr Bharati would have been of no further benefit to the applicant in explaining any possible legal error on the part of the Tribunal.
For the remainder, the applicant said that he did not believe that he got “due justice” before the Tribunal, that he would face problems if he returned to his home country, and would have preferred the Tribunal to make a decision in his favour.
However, as I explained to the applicant, the power of the Court is limited to the issue of whether the Tribunal’s decision was attendant by any legal error. As I said to the applicant, the question is not whether the Tribunal made a right decision or a good decision, it is whether it made a lawful decision.
I also advised the applicant that given the obvious deficiencies in the arguments in the written submissions drafted by Mr Bharati, I did independently from what Mr Bharati had written and said before the Court, look at the Tribunal’s decision record and the material before the Court. I could not find any jurisdictional error arising from what the Tribunal had done.
In short, the applicant was given the opportunity by the Tribunal to give his evidence, and explain his case. On the evidence, the Tribunal put its concerns to him. He was given the opportunity to comment. The Tribunal’s disbelief of the applicant’s evidence and claims as giving rise to a well-founded fear of serious or significant harm, were reasonably open to it to make, and for the reasons that it gave which were probative of the material before it.
Before turning to the documents provided by the applicant, as authored by Mr Bharati, there are a number of matters that require note.
First, in these proceedings, the applicant filed his application pursuant to s.476 of the Act on 15 April 2016. He set out the grounds of his application in the terms that I have already mentioned.
Although the first ground is numbered, there is no further numbering. For the sake of clarity, I took the view that what is set out in bold on the second page (that is, page four of the application) is an attempt to assert a denial of natural justice and procedural fairness. For current purposes, I regard that as ground two of the application.
Second, I accept the applicant’s evidence that the grounds of the application, and the written submissions, were drafted by Mr Bharati.
Third, the applicant filed what is titled the “Outline of Submission” in October 2016. In that document, the applicant (through Mr Bharati) complains that he did not understand when he attended at the first Court date before the Registrar what was meant by the term “requirement to serve an amended Application,” and, in context, by 21 July 2016 (the applicant incorrectly says 27 July 2016).
He then purports to set out fifteen items under the heading of “Grounds of application”. At best for the applicant, I understand this as an attempt by the applicant to proceed on the basis of seeking leave to rely on an amended application, notwithstanding that he had not complied with orders made by the Registrar in that regard.
Fourth, in the same submissions, that is, the “first written submissions”, the applicant makes reference to: “the Meaning of an Arguable Case”, and that the Court should “not readily summarily dismiss applications”.
On 27 October 2016, a number of orders were made by a Registrar of the Court. Order 3 made on that day states that a show cause hearing pursuant to Part 44 of the Federal Circuit Court Rules 2001 (Cth) (“the FCC Rules”) was dispensed with. By order 4, the matter was set down for a final hearing. In this light, it is difficult to understand why in the second written submissions, Mr Bharati, for the applicant, again makes reference to “the Meaning of an Arguable Case”.
In the second written submissions, the applicant specifically asks the Court to grant a “final hearing”. The orders made by the Registrar previously had done just that. On the earlier occasion of the hearing before the Court, Mr Bharati was unable to offer any explanation for this. In any event, I have no further regard to those parts of the written submissions dealing with the applicant’s request for a final hearing.
Fifth, the applicant also asks in the second written submissions that he be granted a “final hearing…with more legal resources”. If this was meant as a request for the Court to arrange legal representation for him, then, there is no right to legal representation in matters of this type (Nguyen v Minister for Immigration and Multicultural Affairs [2000] FCA 1265; (2000) 101 FCR 20, SZHTI v Minister for Immigration and Multicultural Affairs [2006] FCA 702 and Bodenstein v Minister for Immigration and Citizenship [2009] FCA 50). In any event, on the applicant’s own evidence, and what has subsequently transpired, the applicant has been receiving legal advice and assistance from Mr Bharati, a solicitor.
Sixth, there are a number of features of both sets of written submissions that require note. In the second written submissions, the applicant also asserts that:
“Consequently, the purported decision of 28 March 2016 was not a ‘decision’ for the purposes of the definition of ‘Privative clause decision’ under s 424 of the Migration Act 1958.”
How s.424 of the Act relates to this matter was not explained by the applicant, but importantly, it was never explained by Mr Bharati.
Further, in his written submissions, the applicant says that he appeared at a hearing before the Tribunal on 22 February 2016 and following this, in the same submissions, he says the hearing was conducted on 28 March 2016. On the evidence, that is what is in the Court Book, the applicant only appeared once before the Tribunal, and that was on 22 February 2016 (CB 129).
These matters illustrate, and I must say, they are by no means exhaustive, the difficulty in trying to make sense of what Mr Bharati, and the applicant, were seeking to argue in the written submissions. For example, what is typical of the applicant’s written submissions, as shown in ground one of the application, is a series of unrelated assertions by the applicant and followed by particulars which do not appear to relate to the series of assertions in any coherent fashion.
Further, those parts that can be said to be somewhat meaningful appear to relate only to one of the assertions that precede them and leave the other assertions unexplained.
Having heard from Mr Bharati in these proceedings, it must be said that these difficulties in the documents in understanding the applicant’s grounds and submissions were, in a sense, explained. That is, as the applicant himself made clear in his evidence, which I accept, it was Mr Bharati, and not the applicant, who drafted these documents.
A serious question arises as to Mr Bharati’s competence to give advice in migration matters before this Court. In any event, I have sought to impose some structure on the relevant points of the applicant’s documents as follows.
One, the initiating application. As set out above, I have taken the view that there are two grounds, with particulars, and I will address those later.
Two, the written submissions of 12 October 2016 (the first written submissions). While in context these appear to, possibly, be directed to the question of an arguable case, I have taken the view that they represent an application from the applicant for leave to amend the grounds of his application to the Court. I have considered these submissions in that light.
To amend the grounds of his application, the applicant would need the leave of the Court, given the events that I have already outlined above. The Minister opposes the grant of any such leave.
Three, the written submissions of 13 April 2018, that is, the second written submissions. They also appear to be addressed to the question of an arguable case. However, I have, similarly taken the view that they represent a second application to amend the grounds of the originating application. The applicant also needs leave for that purpose. The Minister opposes the grant of any such leave.
Four, in the second written submissions, the applicant, amongst other things, asks for an order that, in effect, seeks review of the delegate’s decision. In the circumstances of this case, as is clear from the evidence before the Court, this Court has no jurisdiction to review the delegate’s decision. I note here the provisions of s.476 of the Act. I have taken the view that order six, sought by the applicant, is a reference to what the Court deems “fit”.
Turning to the application before the Court. The first sentence of ground one asserts that the Tribunal fell into jurisdictional error because it “mistook and misconstrued the facts”. No explanation is given in the particulars for that assertion.
In the absence of any coherent or relevant particulars, and even having regard generally to the applicant’s complaints before the Court, this grievance, or this assertion, on the evidence before the Court, is no more than an attempt to express disagreement with the Tribunal’s assessment of the applicant’s claims as expressed in its findings. That part of ground one seeks impermissible merits review. No jurisdictional error is indicated, let alone revealed.
The second sentence asserts that the Tribunal “discarded” and, in context, I understood that to mean did not accept his oral and written evidence, “without giving any solid reasons”.
This also is a request for the Court to engage in impermissible merits review. The Tribunal did have a probative basis for not accepting the applicant’s evidence. It gave cogent reasons to explain its findings in rejecting key parts of the applicant’s claims, and his account of events, which gave rise to his claimed fears.
The applicant complains that there is an absence of, “solid reasons” in the Tribunal’s reasoning. On what is before the Court, to borrow Mr Bharati’s phrase, the “solid reasons” were that the Tribunal, with explanation, took an adverse view of the applicant’s own evidence, and his inability at the Tribunal hearing to explain the many various concerns held by the Tribunal. Again, this sentence is no more than a request for impermissible merits review.
The third and fourth sentences appear to complain about the Tribunal’s approach to the assessment of the complementary protection criterion. That part of the ground itself, again, lacks relevant meaning.
Nor do the purported particulars assist. The particulars to ground one of the application appear to be in two parts. The first makes reference to “the definition of Substantial background and Marginal backgrounds”. The applicant was not able to explain this to the Court. More importantly, neither did Mr Bharati explain what that meant. If this was some attempt to argue that the Tribunal mistook and misconstrued the facts, then there is nothing in the evidence before the Court to support that proposition, or in fact to even indicate that any such proposition can be reasonably advanced.
The second part of the particulars to ground one repeat the claims made by the applicant to the Tribunal. As I have now said on many occasions today, the Tribunal made findings that were reasonably open to it, probative of the material before it. Yet again, the applicant seeks impermissible merits review. In all, ground one of the application is not only not made out, it must be said, it is without merit.
Ground two, in essence, asserts the Tribunal was biased, and that the applicant was denied natural justice because the Tribunal found his oral and written evidence to be “false,” and that it did so without “proper investigation”. The actual complaint appears to focus on the Tribunal’s concern that the claims the applicant made regarding the “robbery” lacked a [Refugees] Convention nexus.
While this was, on the evidence, a matter raised at the Tribunal hearing, the Tribunal’s conclusion on this matter was based on findings that rejected the truth of the applicant’s claims (see [26] at pages 7 to 8 of the Tribunal’s decision record).
This conclusion, and the findings that informed it, were reasonably open on what was before it. I note that at [26] to [30] (pages 7 to 9 of the Tribunal’s decision record), the Tribunal explained this conclusion in some detail. Again, the Tribunal’s conclusion, and the findings that informed it, were reasonably open to it. The Tribunal gave an intelligible analysis for reaching that conclusion.
It is the case that bias is a serious allegation for an applicant, and a solicitor, to raise against a Tribunal member. This is because, unlike other assertions of legal error, an allegation of bias attacks the very integrity of the decision-maker. For that reason, such allegations must be distinctly made and clearly proven (Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 at [69] and [127])
The applicant’s particulars to the ground do not meet even the first of those “requirements”. The reference to “The AAT made decision with preoccupied thought that the applicant’s claim was not political”, is not a proper assertion of bias. Ultimately, what can be understood on the particulars to ground two is a complaint that “somehow” the Tribunal had already, perhaps prior to the hearing (it is unclear), made up its mind that the applicant’s claim did not have a Refugees Convention nexus. This is what appears to be meant by the reference to “political”.
The real nature of the complaint is revealed with the “reason the AAT discredited all the written and oral evidences presented by the applicant…claims that he was denied procedural fairness”. That is, the Tribunal denied the applicant procedural fairness because it “discredited” his evidence. At best this, again, can only be some, it must be said, clumsy, attempt to take issue with the Tribunal’s adverse findings as to the credibility of the applicant’s claims.
There is nothing in the evidence before the Court to show that simply because the Tribunal could not find a Refugees Convention nexus in the applicant’s claims, that in the circumstances, this required a closed mind on the part of the Tribunal. To the contrary, on the evidence, the Tribunal gave the applicant the opportunity to explain what were, plainly, the difficulties with his application.
Therefore, whether this is some attempt to assert bias, or some attempt to assert that the Tribunal did not explain, or that it was not open to the Tribunal to make the findings that it did, then the ground is without merit for the reasons that I have already explained.
I should also note that if this was some attempt to argue bias as revealed by the Tribunal’s references to what occurred at the Tribunal hearing, the applicant has not provided evidence by way of transcript of that hearing before the Court. The only relevant evidence is what is reported in the Tribunal’s decision record. No bias or denial of procedural fairness is indicated, let alone can be made out.
In all, the applicant’s grounds of the application to the Court are not made out. The application should be dismissed on that basis.
As I said, I have treated the written submissions as attempts to amend the grounds of the application. For the following reasons, leave should be refused.
“Ground one” of the first written submissions, repeats the complaint dealt with above relating to the “mistaking” or “misconstruing” of the applicant’s claims. As I have already said, this really seeks merits review. It does not reveal any jurisdictional error.
“Grounds two to eight” of the first written submissions merely set out the applicant’s claims to protection, particularly as they were expressed before the delegate, and to some lesser extent, before the Tribunal.
As I said earlier, if this is some attempt to say that the Court should find the truth of these asserted facts, or rather that the Tribunal should have found favourably for the applicant, then this again, is no more than a request for impermissible merits review. No merit is revealed in those proposed “grounds”.
“Ground nine” appears to take issue with what the Tribunal put to the applicant at the hearing concerning his claim that the “robbers” had political connections, and to take issue with the Tribunal’s subsequent finding. However, again, as I have already explained, this finding was reasonably open to the Tribunal. “Ground nine” also does not rise above a request for impermissible merits review.
“Ground ten” also claims that the Tribunal “misconstrued” the facts. However, when regard is had to the remainder of the proposed ground, it is again no more than yet another attempt now before the Court to explain the deficiencies in the applicant’s evidence to the Tribunal, and as those deficiencies were found by the Tribunal, and which informed its ultimate conclusion.
This appears to be a recurring theme in the applicant’s written submissions. That is, this is another request for impermissible merits review. There is no merit in this complaint. This is because, in any event, on the evidence, the Tribunal did not misunderstand the applicant’s evidence, as the proposed ground appears to claim. On the evidence, the Tribunal properly understood that the applicant’s evidence was that he believed, as he now asserts in the proposed ground, that the “robbers” were associated with the AL. That is exactly what the Tribunal considered and assessed.
“Ground eleven” complains that the Tribunal made its decision on limited information, and did not have regard to other information that was available. The difficulty is that the applicant, and again, in essence, Mr Bharati, has not, and did not identify, what other information there was to which the Tribunal should have had regard.
In any event, as the Minister, in my view, correctly, submits, the choice of, and weight to be assigned to, country information, is for the Tribunal to assess and determine as part of its fact finding function. I would add only that this is subject to its acting reasonably, as, on the evidence, the Tribunal did in the circumstances of this case. For example, the Tribunal did have regard to country information contemporaneous with the events as claimed by the applicant. Again, there is no merit in this complaint.
There is no proposed “ground twelve”.
“Ground thirteen” asserts a denial of procedural fairness at the hearing with the Tribunal. Two reasons are given for this.
One, the Tribunal did not understand the difficulties faced by the applicant, because he was a “non-legal” person appearing before the Tribunal. The difficulty for the applicant with that assertion is that it does not take any knowledge of the law to give credible evidence and make arguments at a Tribunal hearing about, after all, why the applicant says he fears harm in Bangladesh. Further, if this is what was implicit, there is no right to legal representation before the Tribunal (SZRIF v Minister for Immigration and Border Protection [2015] FCA 680 at [26]).
In any event, I note that at the time the applicant had made his application to the Tribunal, he was represented by lawyers and migration agents (CB 111). The applicant would therefore have had some access to migration, and to the extent relevant, legal advice. Further, there is no legal error in the Tribunal proceeding to a hearing and to making a decision in the absence of any legal representation.
Two, there appears to be a complaint that the Tribunal “intentionally” asked irrelevant questions to “confuse” the applicant, and this affected the “credibility Test.”
Neither the “ground”, nor the applicant, nor Mr Bharati identified what these questions might have been. The applicant was given the opportunity to file evidence, including a transcript of the Tribunal hearing, by orders made by the Registrar. Despite having filed a number of other documents, he has not provided evidence of what occurred at the Tribunal hearing.
The Tribunal’s obligation pursuant to s.425 of the Act is to invite an applicant to a hearing. In the current case, the Tribunal did this. The hearing must be a meaningful opportunity for the applicant to give evidence and make his arguments. On the only relevant evidence before the Court, that is, the Tribunal’s account of what occurred at the hearing, there is nothing to indicate that the Tribunal asked irrelevant questions in the sense as explained, for example, by such authorities as Minister for Aboriginal Affairs v Peko Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24; (1986) 66 ALR 299, or that the hearing was other than a meaningful opportunity for the applicant to give his evidence and make his arguments.
The evidence before the Court reveals that the Tribunal squarely put its concerns to the applicant. It gave him the opportunity to explain. The fact that the applicant was unable to provide reasonable, satisfactory, or plausible explanations in answer to the Tribunal’s concerns does not reveal jurisdictional error. The Tribunal was not required, as I said earlier, to uncritically accept the applicant’s claims and evidence. There is no failure of procedural fairness in the current circumstances simply because the Tribunal, with intelligible reasons, probative of the material before it, disbelieved the applicant’s claims.
“Ground fourteen” appears to assert that the Tribunal fell into legal error because it had regard to an interview conducted by the Minister’s department with the applicant on his arrival (the entry interview). As the Minister submits, the Tribunal was entitled to refer to the entry interview as it was given to it pursuant to s.418(3) of the Act (SZOIN v Minister for Immigration and Citizenship [2011] FCAFC 38; (2011) 191 FCR 123; (2011) 276 ALR 247). That is, it was considered relevant to the review. If all that the applicant is saying is that this was not a “relevant consideration”, any such assertion is simply not made out.
“Ground fourteen” also repeats the claim of the denial of procedural fairness. Again, no particulars are provided. As I have already said, there is no merit in any such complaint in the circumstances presented.
“Ground fifteen” contains a number of general assertions.
One, the Tribunal’s findings and reasons were “confused”. This, on any plain reading of the Tribunal’s decision, is simply an expression of grievance by the applicant, or Mr Bharati, with the Tribunal’s decision. The evidence before the Court does not support this assertion, and, it must be said, does not even provide the basis for any indicator of any such confusion.
Two, that the Tribunal failed to apply the “test for persecution” in accordance with the Act. This, again, is simply a general assertion with no explanation, or particulars, whatsoever. It must be said, again, there is nothing in the evidence before the Court to even indicate any such failure.
Three, the proposed ground asserts that the Tribunal failed to apply the correct test in relation to complementary protection. As has by now been revealed as typical of this document, no particulars are provided. On the evidence before the Court, the Tribunal set out its understanding of the test. It did so in unexceptional terms. The Tribunal made findings relevant to the proper assessment of the complementary protection criterion. It was open to the Tribunal in assessing the complementary protection criterion to rely on anterior findings of fact expressed earlier in is analysis (SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774 and SZSHK v Minister for Immigration and Border Protection [2013] FCAFC 125; (2013) 138 ALD 26). Again, there is no merit in this proposed ground.
In all, there is no merit in any of the proposed grounds of the first written submissions (or “first proposed amended application”). Leave is refused to the applicant to amend his application on that basis.
A similar approach to that set out above was attempted with the second written submissions. I note that there was no explanation provided for the delay in bringing forward these additional complaints at such a late stage. That is, well after the date for making submissions as set out in the orders of the Registrar.
In any event, the reason to refuse the leave that the applicant seeks, is because, again, there is no legal merit in the proposed grounds. They are largely another recitation of the matters sought to be raised in the grounds of the application to the Court and the first written submissions.
“Ground one” is a general assertion relating to complementary protection. It is not explained. But in any event, I have already addressed the “complementary protection grievance”, if I can call it that, earlier.
“Ground two” is simply an attempt to refer to the definition of “significant harm”. There is no assertion of jurisdictional error. It, again, has no merit.
“Ground three” appears to be some complaint that the Tribunal acted unreasonably in making findings in relation to country information “prepared” by the Department of Foreign Affairs. That is, that it should have taken into account “new” information about Bangladesh.
I have already dealt with what appears to be the first aspect of the complaint. That is, the Tribunal’s use of country information. The choice of, and weight to be assigned to such information is a matter for the Tribunal. However, there is nothing before the Court to show, nor is it otherwise argued, that some attempt was made to put additional information before the Tribunal, and it somehow refused to consider it. If this is just another attempt to argue that the Tribunal should have “investigated the matter”, then I have already dealt with that complaint above.
“Ground four”, at best, appears to seek to repeat claims to fear harm that were already addressed by the Tribunal in terms that I have already referred to. Again, there is no merit in this proposed ground.
“Ground five” again seeks to repeat the complaint about the entry interview. I have already dealt with that above.
The document then sets out a number of un-numbered statements following on from proposed ground five.
One, a reference to “irrelevant questions”. I have dealt with that matter earlier.
Two, the complaint appears to be that the Tribunal “designed” questions at the hearing to “confuse” the “mind” of the applicant. The written submissions then state “It is expected that the Tribunal hearing will be conducted in a judicial manner”. I note that the Tribunal is not a Court, therefore it does not need to act in a “judicial” manner.
Contrary to the applicant’s assertion (through Mr Bharati) that the Tribunal failed to deal with the applicant in an “individual manner”, whatever that may mean, the Tribunal is entitled, and indeed is required, to question the applicant at the hearing about his claims. The Tribunal’s process is not a judicial process, it is not an adversarial process. The conduct of the review involves a process of interrogation. The Tribunal is entitled to ask questions, and indeed, may ask them vigorously (Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425, Minister for Immigration and Border Protection v SZTJF [2015] FCA 1052; (2015) 149 ALRD 552 and SZLUD v Minister for Immigration and Citizenship [2009] FCA 549). As I said earlier, there is no transcript of what transpired at the Tribunal hearing. Whatever is meant by this complaint, again, no merit is revealed.
Three, there is again some reference to the entry interview. I have already dealt with this above.
Four, again, there is a general statement about procedural fairness. Again, no particulars are provided. In context, this is some expression of nothing more than a grievance about the Tribunal’s decision. It also lacks merit.
To the extent that the applicant seeks leave to amend the grounds of the application by way of the second written submissions, then leave is to be refused.
Conclusion
In all, it is appropriate to refuse leave to amend the application as sought by the first written submissions. Second, it is appropriate to refuse leave to amend the grounds as sought by the second written submissions. The application to the Court is to be dismissed. I will make the appropriate order.
I certify that the preceding one hundred and twenty-six (126) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Associate:
Date: 12 November 2018
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