Ayb19 v Minister for Immigration
[2019] FCCA 3034
•23 October 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AYB19 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 3034 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) |
| Cases cited: Minister for Immigration v SZMTA; CQZ15 v Minister for Immigration; BEG15 v Minister for Immigration [2019] HCA 3 |
| Applicant: | AYB19 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 541 of 2019 |
| Judgment of: | Judge Driver |
| Hearing date: | 23 October 2019 |
| Delivered at: | Sydney |
| Delivered on: | 23 October 2019 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Ms J Noakesmith of DLA Piper |
INTERLOCUTORY ORDERS
The title of the first respondent is amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,737 in accordance with rule 44.15(1) and Item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 541 of 2019
| AYB19 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from Transcript)
Introduction and background
The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). The decision was made on 13 February 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 the applicant’s claims for protection and the Tribunal’s decision on them are set out in the Minister’s outline of submissions.
The applicant is a male citizen of Bangladesh who arrived in Australia on 12 May 2015 as the holder of a visitor visa.
On 22 June 2015, the applicant lodged an application for a protection (class XA) visa.[1] The basis of the applicant’s claims for protection was that he was homosexual and he feared he would be harmed by homophobes or religious fanatics in Bangladesh.
[1] Court Book (CB) 1-34
The applicant attended an interview with the delegate on 30 December 2015 and on 4 March 2016, the delegate refused to grant the applicant a protection visa, finding his claim to be a homosexual not to be credible.[2]
[2] CB 108-123
On 19 March 2016, the applicant sought review of the delegate’s decision with the Tribunal.[3]
[3] CB 129-133
On 6 July 2018, the applicant provided documents to the Tribunal in support of his application including an Outward Remittance document, untranslated documents including an identity card of his partner, a Sydney Gay and Lesbian Mardi Gras membership card, and a medical document in English and Bengali.[4]
[4] CB 161-182
The applicant was subsequently invited to and attended a hearing before the Tribunal on 19 September 2018.[5] At the hearing, the applicant provided further documents including various tickets to Mardi Gras events, and country information.[6] Following the hearing, the applicant also provided financial documents and additional photographs.[7]
[5] CB 192-195
[6] CB 197-272
[7] CB 274-323
The applicant was invited to and attended a second hearing before the Tribunal on 18 December 2018.[8] Following the hearing, the applicant provided a translation of a letter which was said to be from his local mosque to his landlord.[9]
[8] CB 335-338
[9] CB 341-342
On 24 January 2019, the Tribunal invited the applicant to comment on translations it had obtained of the applicant’s lease agreement and police “General Diary” document.[10]
[10] CB 344-347
On 14 February 2019, the Tribunal notified its decision to affirm the decision of the delegate.[11]
Tribunal Decision
[11] CB 350-384
Credibility
The Tribunal found the applicant’s claims regarding his sexual orientation to be unreliable and contradictory and did not accept the applicant was a gay man.[12] The Tribunal considered the applicant had provided contradictory information about whether he had told people he was gay,[13] and that his evidence about his activities as a gay man in Bangladesh was inconsistent.[14]
[12] at [42]
[13] at [44]-[45]
[14] at [46]-[47]
The Tribunal was of the opinion that the applicant showed little understanding of gay community activities, despite claiming to have interest. The Tribunal did not accept the applicant was based in Silhet in his last two years in Bangladesh nor that this explained why he did not attend or know about the “Boys of Bangladesh” activities.[15] Additionally, based on inconsistent information about the founder of “Boys of Bangladesh”, the Tribunal was of the opinion that the nature and level of information provided at hearing was not indicative of a person who had any first-hand knowledge of or interest in the gay community in Bangladesh while living there.[16]
[15] at [48]
[16] at [50]
The Tribunal found the applicant’s story about how his sexual orientation was discovered in Bangladesh to be inconsistent and implausible.[17] The Tribunal was of the view that information about the applicant’s claimed partner, Azharul, was not supportive of the claim that he was gay or in a gay relationship.[18] The Tribunal found the applicant’s general description of his claimed partner Azharul to be at odds with contentions to have strong feelings for him and additionally was of the view that the applicant’s submitted photographs showed nothing more but the pair sitting or standing next to each other, indicating nothing more than a close friendship.[19] The Tribunal, whilst accepting the pair shared an apartment in Bangladesh, did not consider the lease indicated there was a relationship.[20]
[17] at [49]
[18] at [51]
[19] at [52]-[53]
[20] at [54]
The Tribunal did not accept the applicant was gay or has been in a gay relationship based on the vagueness and lack of information provided by him about being a homosexual.[21]
[21] at [58]
Having found that the applicant was not gay, the Tribunal did not accept the applicant’s claim that he was harassed and tortured by his work colleagues, noting there was also inconsistent evidence provided at the hearing.[22]
[22] at [59]-[61]
The Tribunal did not accept any of the claims involving the Mosque Committee since there were significantly different accounts between the protection visa application and the hearing.[23] Additionally, the Tribunal formed a view that the letter submitted in evidence of the notice to terminate the applicant’s lease was not genuine, as the contents of it were in contradiction to the discrete relationship between the applicant and Azharul.[24]
[23] at [64]-[65]
[24] at [66]
The Tribunal did not accept the applicant was attacked by members of the Islami Chhatra Shibir (ICS) or any other organisation in Bangladesh because he was perceived to be or was homosexual as this claim was raised for the first time during the second hearing.[25] The Tribunal could not see any reason why the applicant would not mention this terrible incident and not care about the warning.[26] Additionally, the Tribunal considered that the applicant had given contradictory evidence as to whether he reported the incident to the police[27] and found that the doctor’s discharge note lacked conformity with the applicant’s oral evidence.[28]
[25] at [68]-[69]
[26] at [70]
[27] at [71]
[28] at [72]
The Tribunal did not consider the claimed police “General Diary” document supported the applicant’s claims as there was no mention of the physical attack claimed by the applicant and there were inconsistencies with the applicant’s place of residence at the time.[29]
[29] at [73]
The Tribunal accepted the applicant took membership in the Sydney Gay and Lesbian Mardi Gras and attended the parade as a volunteer while in Australia.[30] However, the Tribunal was not satisfied the applicant engaged in this conduct for any other reason but to strengthen his claim, therefore disregarded it in determining whether the applicant had well-founded fear of persecution under s.5J of the Migration Act 1958 (Cth) (Migration Act).[31]
[30] at [76]
[31] at [77]
Fear of harm in Bangladesh
The Tribunal found the applicant’s claims of attacks and abuse in Bangladesh not to be credible.[32]
[32] at [78]
Although the Tribunal accepted the applicant’s membership and participation in the Sydney Gay and Lesbian Mardi Gras, it disregarded this activity under s.5J(6) of the Migration Act.[33] The Tribunal was further not satisfied there was a real risk the applicant would be subjected to significant harm on return to Bangladesh as a result of participation in the Sydney Gay and Lesbian Mardi Gras, given there was no indication that anyone in Bangladesh was aware of the participation.[34]
[33] at [79]
[34] at [82]-[80]
The Tribunal noted that the applicant lived in Bangladesh without any indication of suffering harm or threat because of his lack of faith. The Tribunal was therefore not satisfied the applicant would face serious or significant harm because he did not have faith in Islam.[35]
[35] at [83]
The Tribunal was not satisfied the applicant had a well-founded fear of persecution in Bangladesh as defined in s.5J(1) of the Migration Act.[36] The Tribunal was not satisfied there was a real risk the applicant would be subjected to significant harm on return to Bangladesh.[37]
[36] at [85]
[37] at [86]
The Tribunal was not satisfied the applicant was a person in respect of whom Australia has protection obligations under s.36(2)(a) or s.36(2)(aa) of the Migration Act.
The present proceedings
These proceedings began with a show cause application filed on 7 March 2019. The applicant continues to rely upon that application. The grounds in it are:
Ground One:
The Administrative Appeals Tribunal has failed to apply the correct test pursuant to Section 36(2)(aa) of the Migration Act 1958 (Cth).
Particulars
In dealing with the Applicant's claims under Section 36(2)(aa) of the Migration Act 1958 (Cth), the Administrative Appeals Tribunal explicitly failed to disaggregate the statutory formulae under Section 36(2)(aa) of the Act.
Ground Two:
The Administrative Appeals Tribunal denied procedural fairness to the applicant.
The application is supported by a short affidavit filed with it, which I received. I also have before me as evidence the affidavit of Jessica Ruth Noakesmith made on 4 October 2019. Ms Noakesmith deposes as to a purported non-disclosure certificate and documents purportedly covered by it. I also received the court book filed on 24 May 2019.
Both the applicant and the Minister filed pre-hearing written submissions in this matter. The applicant also made quite extensive oral submissions, to which the solicitor for the Minister responded. The applicant was a powerful advocate in support of his case. His command of the materials was exceptional. His grasp of the Tribunal decision was also excellent.
The case the applicant had presented to the Tribunal for the review was unusually detailed. It proved necessary for the Tribunal to conduct two hearings to deal with it. The resulting Tribunal decision is also unusually detailed. It is noteworthy that the Tribunal’s decision ultimately turned on extensive adverse credibility findings. There are cases where the Court experiences a general feeling of unease about fundamental findings by decision-makers. This is one of those cases. It is, in my view, entirely possible that the applicant is a homosexual, as he claims. It is possible that the applicant has had same-sex relationships, as he detailed in the material he presented to the Tribunal. If the applicant is untruthful, he has gone to an extraordinary amount of effort in order to fabricate his claims.
The case, in my view, merits further consideration by the Minister and his Department. That is, of course, a matter beyond the scope of this proceeding.
In his oral submissions, the applicant directed my attention to the way in which the Tribunal dealt with several of the documents he presented. In his submissions in chief, the applicant referred in particular to a document he described as a “police diary”, and a Gay and Lesbian Mardi Gras document. He also referred to a document he described as a “mosque notice”. It is submitted that these documents were either not dealt with by the Tribunal, or not dealt with properly. The police diary, described by the Tribunal as a “General Diary”, was considered by it. In particular, the Tribunal deals with that document at [73].[38] The Gay and Lesbian Mardi Gras document was also considered by the Tribunal, and in the context of the Tribunal’s acceptance of the applicant’s activities in Australia. The Tribunal, for the purposes of its refugee assessment, disregarded the applicant’s activities in Australia as engaged in for the purpose of enhancing his protection claims. The applicant submits that this led the Tribunal into error in dealing with the complementary protection criterion.
[38] CB 379
I disagree. The Tribunal deals with the complementary protection criterion at [78] to [86], and plainly took into account, in that context, the applicant’s activities in Australia.
The mosque document was referred to by the Tribunal at [66] of its reasons.[39] The Tribunal found that this was not a genuine document. It appears to be the only document submitted by the applicant that the Tribunal found to have been fabricated. Having regard to the Tribunal’s reasons, I take the view that the Tribunal’s conclusions were open to it.
[39] CB 378
In his submissions in reply, the applicant referred to an online news article in Bengali, reproduced at pages 301 and 303 of the court book. The applicant contends that this was overlooked by the Tribunal after he handed it up during the Tribunal hearing. It appears correct that the Tribunal’s decision is silent upon that document. The Tribunal does refer generally to articles about homosexuality in Bangladesh.[40] The applicant contends, however, that the document in issue refers to him and his homosexual relations. That is not something I contest, as the document is in Bengali.
[40] at CB 357
The applicant conceded that he did not provide a translation of the article. On making review applications to the Tribunal, applicants are encouraged to provide translations of documents in foreign languages. In correspondence reproduced at court book 135 and 136, the applicant was offered the services of the telephone interpreter service. The Court does not have any evidence of what took place at the Tribunal hearing in the form of a transcript. The procedural orders made by Registrar Morgan on 28 March 2019 in this matter required any party wishing to rely on evidence of the hearing to file a transcript. That has not been done. On the evidence before me, I am unable to draw any conclusion, including even a preliminary conclusion, as to the significance, if any, of the untranslated online news article.
In his submissions in reply, the applicant also referred to numerous photos of him and his friend, a German letter of offer of study for him and his friend, and a medical certificate. Those were all dealt with by the Tribunal.
I am not persuaded from the applicant’s oral submissions that he has an arguable case of jurisdictional error by the Tribunal. In particular, the Tribunal dealt comprehensively with the applicant’s claims and the materials submitted in support of them.
In terms of the written grounds of review advanced, I agree with the Minister’s submissions.
Ground 1
Ground 1 alleges that the Tribunal failed to apply the correct test in its consideration of complementary protection. This ground does not reveal any error by the Tribunal:
a)the Tribunal rejected the factual basis of the applicant’s claims, being that the applicant was gay or had been in a gay relationship,[41] and subsequently rejected all of the applicant’s claims stemming from this;[42]
b)while the Tribunal accepted the applicant’s claim to have taken out a Sydney Gay and Lesbian Mardi Gras membership in 2017, attended a Sydney Mardi Gras parade as a volunteer for the organisation, and attended some other events organised by the organisation, it disregarded this conduct in determining whether the applicant had a well-founded fear of persecution pursuant to s.5J(6) of the Migration Act;[43]
c)the Tribunal noted that this section of the Migration Act did not apply to the Tribunal’s determination of protection obligations under the complementary protection obligations.[44] The Tribunal found there was no indication that anyone in Bangladesh was aware that the applicant participated in some events with the Sydney Gay and Lesbian Mardi Gras. In light of the Tribunal’s earlier finding that the applicant was not a gay man, the Tribunal found there was no reason for his activity in Australia to give rise to any fear on his return to Bangladesh.[45] The Tribunal found that even if it became known to people in Bangladesh that the applicant participated in these events, the Tribunal did not accept there would be any risk of him being subjected to significant harm in Bangladesh;[46] and
d)having rejected the factual basis of the applicant’s fear of harm and otherwise finding that the applicant’s conduct in Australia would not give rise to the applicant facing significant harm in Bangladesh, the Tribunal was not satisfied that the applicant met the criterion in s.36(2)(a) or (aa).[47]
[41] see [58]
[42] see [61], [67], and [74]
[43] at [77]
[44] at [79]
[45] at [80]
[46] at [81]
[47] at [88]
The Tribunal’s factual findings comprehensively dealt with the claims put forward by the applicant and it additionally found that the applicant would not face serious or significant harm for reason of his religion.[48] Furthermore, the Tribunal correctly made findings under the complementary protection criterion in respect of conduct which it disregarded under s.5J(6) of the Migration Act. Ground 1 is not arguable.
[48] at [83]
Ground 2
Ground 2 alleges that the Tribunal denied the applicant procedural fairness. The ground is unparticularised. The Minister makes submissions with respect to the Tribunal’s obligations under s.425 and s.424A of the Migration Act with which I agree:
a)the applicant was invited to two hearings pursuant to s.425 to discuss the issues arising in this matter. Section 425 also requires the Tribunal to identify for an applicant the dispositive issues in the review, where those issues differ from the issues considered dispositive by the delegate.[49] The Tribunal decision was based on the same dispositive issues as that of the delegate but nevertheless the Tribunal decision record makes clear that the dispositive issues were discussed with the applicant at the two hearings;
b)I accept that there was not any information which enlivened the Tribunal’s s.424A obligations in this matter; and
c)the Tribunal noted that it put to the applicant information pursuant to s.424AA of the Migration Act.[50] This information was that the recording of the Departmental interview recorded that the applicant stated his sister-in-law had written to the applicant’s brother and that the applicant’s middle brother had the same sexuality as the applicant. This is not information that falls within s.424A(1) of the Migration Act, as it does not contain a rejection, denial or undermining of the applicant’s claims. Rather, this was information that bore upon the Tribunal’s assessment of the credibility of the applicant's claims.[51]
[49] see SZBEL v Minister for Immigration (2006) 228 CLR 152; [2006] HCA 63
[50] at [17(ii.)]
[51] see Tribunal’s further consideration of this information at [19(ff.)]
Section 438(1)(a) certificate
The Minister, as a model litigant, also raises the question of the purported s.438 certificate. I agree with the Minister’s submissions concerning that certificate.
The applicant’s Departmental file includes a purported certificate and notification regarding the disclosure of information under s.438 of the Migration Act dated 24 March 2016 (the certificate).[52]
[52] CB 124; affidavit of Ms Noakesmith affirmed 4 October 2019 (JRN Affidavit), Annexure A
The documents subject to the certificate are as follows:[53]
a)internal case notes relation to the applicant’s business visitor visa;[54]
b)case note of a telephone conversation between the Minister’s Department and the applicant relating to the applicant’s protection visa application;[55]
c)an internal protection visa identification checklist of the applicant;[56] and
d)an internal disclosure decision checklist.[57]
[53] JRN Affidavit, Annexure B
[54] JRN Affidavit, Annexure B
[55] CB 127; JRN Affidavit, Annexure B
[56] CB 125-126; JRN Affidavit, Annexure B
[57] C; JRN Affidavit, Annexure B
The certificate is invalid. The certificate states that the disclosure of the documents described above would be contrary to the public interest because they “contain information relating to an internal working document and business affairs”, which does not provide a sufficient basis for a claim of public interest immunity.[58]
[58] MZAFZv Minister for Immigration [2016] FCA 1081 per Beach J at [37]
The Tribunal did not disclose its existence of the certificate to the applicant, nor is it referred to by the Tribunal in its decision.
The Minister concedes that procedural fairness required the Tribunal to disclose the existence of the certificate to the applicant, and that the Tribunal in the present case has accordingly breached its procedural fairness obligations.[59] Alternatively, if the Tribunal were found to have acted on the invalid certificate (although there is no indication that it did so in the present case), it would have followed a procedure contrary to law.[60]
[59] Minister for Immigration v SZMTA; CQZ15 v Minister for Immigration; BEG15 v Minister for Immigration [2019] HCA 3 at [27]
[60] MZAFZ at [40]
However, neither breach amounts to a jurisdictional error in the present case on the basis that the breach was not material, in that the breach did not deprive the applicant of a possibility of a successful outcome.[61]
[61] SZMTA at [44]-[45], [72]
The materials subject to the certificate were not relevant to the applicant’s claims for protection nor to the issues being considered by the Tribunal. Therefore:
a)if the Court were to find that the Tribunal acted on the invalid certificate, there is no realistic possibility that the Tribunal’s decision could have been different if the material covered by the certificate had been taken into account;[62] and
b)in relation to the failure by the Tribunal to disclose the existence of the certificate to the applicant, there is no realistic possibility that the Tribunal’s decision could have been different if the certificate had been disclosed so as to allow the applicant a full opportunity to make submissions about it.[63]
[62] SZMTA at [48]
[63] SZMTA at [49]
In short, the certificate is plainly invalid. It was not disclosed to the applicant by the Tribunal, and it should have been. Having regard to the documents purportedly covered by the certificate, that omission was, however, not material to the review.
Conclusion
I conclude that, notwithstanding his detailed submissions, the applicant is unable to demonstrate an arguable case of jurisdictional error by the Tribunal. I will order that, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules), the application be dismissed.
In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale. The application did not wish to be heard on costs.
I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,737 in accordance with rule 44.15(1) and Item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules.
I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 30 October 2019
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Jurisdiction
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Natural Justice
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Procedural Fairness
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Standing
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