AYU15 v Minister for Immigration and Anor (No.2)

[2016] FCCA 2309

FEDERAL CIRCUIT COURT OF AUSTRALIA

AYU15 v MINISTER FOR IMMIGRATION & ANOR (No.2) [2016] FCCA 2309

Catchwords:
MIGRATION – Application for review of decision of Refugee Review Tribunal (Tribunal) – whether during the hearing before the Tribunal the applicant suffered from a medical or mental condition that deprived him of a real and meaningful opportunity to give evidence and present arguments to the Tribunal – whether Tribunal correctly understood or applied the criteria for the granting of a Protection (Class XA) visa – whether Tribunal considered documents submitted by applicant – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a) 36(2)(aa), 424, 425(1)

Cases cited:

Minister for Immigration and Citizenship v SZNCR [2011] FCA 369

Minister for Immigration & Multicultural & Indigenous Affairs v SCAR [2003]

FCAFC 126; (2003) 128 FCR 553

SZQBN v Minister for Immigration and Border Protection [2014] FCA 686

Applicant: AYU15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1550 of 2015

Judgment of: Judge Manousaridis

Hearing date: 25 August 2016

Delivered at: Sydney

Delivered on: 9 September 2016

REPRESENTATION

The applicant appeared in person assisted by an interpreter

Solicitors for the Respondents: Mr J Pinder of Minter Ellison

ORDERS

1. The application is dismissed.

2. The Administrative Appeals Tribunal is substituted for the Refugee Review Tribunal as the second respondent.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1550 of 2015

AYU15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant, a citizen of Bangladesh, seeks judicial review of a decision of the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant to the applicant a Protection (Class XA) visa (Protection visa).

Claims for protection

1. The applicant, who arrived in Australia in June 2012 as an irregular maritime arrival,  articulated his claims for protection on three occasions: first, as recorded in a BIODATA form completed by an officer of the Department of Immigration and Citizenship (Department) on 15 June 2012; second, at an Irregular Maritime Arrival Entry Interview (IMAEI) conducted by an officer of the Department on 28 June 2012; and third, in a statement that formed part of the application for a Protection visa the applicant lodged on 25 September 2013. The applicant also provided further information at a Detention Client Interview conducted by an officer of the Department on 3 June 2012.

2. According to the BIODATA form completed by an officer of the Department,[1] the applicant cited as the primary reason for his seeking protection in Australia: “there is political situation + also group by group fighting (BNP) + also Armalic Nah Party + also having difficult for earning for poor life. My family is very big”.[2]

   [1] CB3

   [2] CB3

3. At the IMAEI the applicant claimed his parents and siblings “could benefit” from the applicant’s being in Australia. In response to being asked why he left Bangladesh, the applicant first referred to a period of seven months when he lived in Malaysia. The applicant stated he “was supposed to have permission to work there”, he was issued a work permit, but he “couldn’t move freely”.[3] The applicant referred to an Indian population in Malaysia, and to instances where people were robbed of their watches and mobile telephones. The applicant then heard about Australia being a “good country” and made contact with a smuggler.[4] The applicant said he left Bangladesh because one of his brothers had a kidney problem and sought treatment in Calcutta, which cost the applicant’s family “lots of money”. The applicant claimed his family were forced to sell land and property, and attempts were made to marry off the applicant’s seven sisters. The applicant also referred to a political problem in Bangladesh and conflict and fighting. When asked what was the main reason the applicant left Bangladesh, the applicant claimed that his family had financial problems and, because there is a political problem in Bangladesh, often there are robberies. The applicant claimed that he supported the Bangladesh Nationalist Party (BNP), and that one of his brothers was associated with the BNP, but was not currently active.

   [3] CB23

   [4] CB24

4. In the statement that formed part of his application for a Protection visa, the applicant claimed to fear harm due to his political opinion and membership of a particular social group, being BNP supporters.[5] According to that statement, the applicant’s brother was involved in the BNP and the applicant first became involved as a child. Party leaders told supporters to collect money from people who had refused to pay bribes and who were involved with drugs. The applicant refused, because he did not wish to be involved in illegal activities, and he tried to distance himself from the BNP. By distancing himself from the BNP, however, the applicant became vulnerable to attacks by supporters of the Bangladesh Awami League. When he was 17 years old, the applicant was attacked by seven Awami League supporters who beat and cut him with a machete, and threatened to kill him. The incident took place in a field and one of the attackers, Mr R, was known to the applicant as a leader of the Awami League. The attack left the applicant unconscious, and he was taken to the village doctor who reported the incident to the police. After the attack, the applicant did not go out at night, and stayed in his village, because he feared he would be attacked again.

   [5] CB74-76

5. The applicant further claimed that in around June or July 2010, a person was killed at Nawali, a village close to where the applicant and his brother lived. The victim’s son, Mr L, went to the police station and named the applicant and his brother as the people responsible. The applicant believed that Mr L did so because Mr R had pressured him, as he was often at the victim’s house. The applicant and his brother subsequently went into hiding from the police. Two weeks later the applicant and his brother received a warning that the police were coming to arrest them. The applicant went and hid in a bamboo forest near a graveyard, and later travelled to his maternal grandfather’s house where he stayed in hiding for one and a half months. After hearing that the police had scaled back their search, the applicant and his brother returned home. Around one and a half months later, the applicant received another warning that the police were coming to arrest him, and the applicant again hid in the bamboo forest, and then went to stay with a friend. The applicant then travelled to his sister’s house where he stayed for two weeks, after which he travelled to Dhaka. He stayed there for one month while trying to make arrangements to leave Bangladesh. The applicant returned to his village, moving around every few days to avoid arrest.

6. In September 2011 the applicant retuned to Dkaha, and travelled to Malaysia “to escape the persecution [the applicant] was facing in my country”.[6] After seven months the applicant made arrangements to travel to Australia, first travelling to Indonesia in around April 2012, and then boarding a boat in June 2012 which was intercepted by the Australian Navy. After he arrived in Australia, the applicant’s brother told him that the police had dropped the charges against the applicant. The applicant’s brother, however, is still under pressure from the Awami League. The applicant fears that if he were to return to Bangladesh the police will implicate him in another case.

   [6] CB75

Tribunal’s decision

1. The Tribunal found the applicant was not a credible, truthful, or reliable witness, and that he fabricated the entirety of his claims to gain a favourable migration outcome. The Tribunal relied on a number of matters.

2. First, the Tribunal placed significant weight on its view that the claims the applicant put forward in the IMAEI contradicted substantially the claims the applicant made in his application for a Protection visa. The Tribunal observed that, in the IMAEI, the applicant gave a “strong indication” that it was financial matters, rather than the matters subsequently claimed in his application for protection, that caused him to leave Bangladesh.[7] The Tribunal referred to the following contradictions and discrepancies between what the applicant claimed at the IMAEI, and what he claimed in his application for a Protection visa and before the Tribunal:

   a)The nature of the involvement the applicant in the IMAEI claimed to have had with the BNP was different from the involvement with the BNP the applicant claimed he had in his application for protection visa.[8]

   b)The applicant did not in the IMAEI mention that false murder charges had been filed against him, despite this claim being an important part of this application for protection.[9]

   c)In response to the Tribunal’s question whether the police, security, or intelligence organisations impacted on the applicant’s day-to-day life, the applicant responded “no”. The Tribunal found that contradicted the claims the applicant made in his application for protection, namely, that the police came to arrest him on several occasions, and that this forced him into hiding for months before he left the country.[10]

   d)At the IMAEI the applicant, when asked why he left Bangladesh, referred to his family’s financial situation, brother’s ill health, and general political problems. The applicant did not refer to any political violence he experienced personally, despite his stated involvement in BNP activities.[11]

   [7] CB214, [16]

   [8] CB214, [17]

   [9] CB215, [18]

   [10] CB215, [20]

   [11] CB215, [21]

3. Second, the Tribunal found the applicant was not truthful in his claim that he feared persecution either from members of the Awami League, or because he was a member of, or because he supported, the BNP, or from the BNP because the applicant did not want to collect money for the BNP:

   a)Despite the applicant’s claims being centred on his involvement with the BNP, the applicant was “very evasive” in his responses to the Tribunal’s questions about that involvement. The applicant was also unable to explain what the BNP joining process was, he could not recall the date on which he joined the BNP, and he claimed that he may have been 16 or 17 years old at the time he joined, which conflicts with the BNP Constitution which sets a minimum age of 18 for party membership.[12]

   [12] CB216, [25(a)]

   b)The applicant claimed he made a mistake when he was unable to recall during his Departmental interview what BNP stands for.[13]

   c)The applicant claimed he joined the BNP when he was 16 or 17, and informed the Tribunal that he was beaten up two years after he joined the party. In his written statement, however, the applicant claimed he was beaten when he was 17 years old.[14]

   d)Before the Tribunal, the applicant said the beating took place on his way home from the shop, where he was kidnapped by four people, taken to a field, and hit on the head. In his written statement, on the other hand, the applicant said he was beaten by seven people in a field. In addition, the applicant informed the Tribunal that he could not recall what weapon was used during the beating, whereas in his written statement the applicant claimed he was hit with a machete.[15]

   e)Before the Tribunal the applicant claimed he did not report the beating to the police, whereas in his written statement he claimed that a doctor reported the incident to the police.[16]

   f)The applicant claimed that after the attack he only went to the shops irregularly and did not go out at dusk, yet he confirmed he continued to reside at the same address and work in the shop irregularly. That indicated the applicant was of no adverse interest to anybody.[17]

   g)The applicant was unable to recall before the Tribunal when he was accused of murder, suggesting it was in June or July or possibly earlier. He ultimately told the Tribunal the murder occurred around March 2010, which contradicted his written evidence in which the applicant stated it was in June or July 2010 that he was accused of murder.[18]

   h)Before the Tribunal the name the applicant gave of the victim of the murder was different from the name the applicant stated in his written statement. Further, before the Tribunal, the applicant stated that it was the murder victim’s sons who reported the murder, whereas, according to a written document that accompanied the application for a Protection visa, it was the murder victim’s wife who reported the murder.[19]

   i)The applicant claimed he, his brother, and a third person were accused of the murder. The applicant, however, was unable to recall the third person’s name.[20]

   j)The applicant gave evidence that he had escaped from the police three or four times. In response to the Tribunal’s concern that the applicant could not recall the exact number of times, the applicant stated it was five times. The Tribunal noted that the applicant’s written statement referred to three occasions, and when these discrepancies were put to the applicant, he said he was “right the first time” and “he could not remember”.[21]

   k)The applicant gave contradictory evidence about his employment status in Bangladesh. Before the Tribunal he claimed to have worked in the family shop daily as a shop assistant, whereas in his application for protection he claimed to be unemployed.[22]

   [13] CB216, [25(a)]

   [14] CB217, [25(b)]

   [15] CB217, [25(c)]

   [16] CB217, [25(d)]

   [17] CB217, [25(e)]

   [18] CB217, [25(f)]

   [19] CB218, [25(g)]

   [20] CB218, [25(h)]

   [21] CB218, [25(i)]

   [22] CB219, [25(k)]

4. Third, the Tribunal had “considerable concerns” about a number of documents on which the applicant relied that purported to evidence a court case, the withdrawing of the court case, the applicant’s involvement with the BNP, and documents referring to the applicant’s being tortured and harmed because of his political activities. The Tribunal noted the documents did not contain adequate information to identify the writers or their contact information, thus offering no opportunity to the Tribunal to contact the writers and test the evidence; most of the documents referred to the applicant by an incorrect name; dates of the documents were inconsistent with dates the applicant gave in evidence before the Tribunal; and information before the Tribunal indicated that document fraud is prevalent in Bangladesh. The Tribunal concluded on the basis of these matters that the documents the applicant presented to the Tribunal were not genuine.[23]

   [23] CB219-220, [28]

5. The Tribunal, therefore, did not accept the applicant has ever had any involvement with the BNP, or that he was forced to collect money or take drugs, or that he had been subjected to any form of harm from Awami League supporters, or that he was harmed or beaten by the BNP, or that he has ever been of adverse interest to any party or political organisation, or that a false murder charge had been filed against him, or that on several occasions the police attempted to arrest him but he escaped and went into hiding, or that he left Bangladesh because of the matters described in his application for protection. The Tribunal, therefore, concluded the applicant was not a person in respect of whom Australia had protection obligations pursuant to s.36(2)(a) or s.36(2)(aa) of the Migration Act 1958 (Cth) (Act).

Grounds of application

1. The application filed by the applicant states three grounds of review. 

Ground 1

1. The first ground is as follows (emphasis in original):

   The Refugee Review Tribunal made a jurisdictional error when it did not follow the s424 of the Migration Act and started hearing without knowing that the applicant has psychological problems. The applicant claims that the Tribunal discarded all the considerations and precautions when the hearing was conducted. He was denied natural justice and procedural fairness when he was interviewed in a pressure of time and without any relief for his illness

   Particular: “In the decision the RRT has accepted that it has had regard to the psychometric assessment in relation to the applicant, conducted at . . . Detention Centre, which is included in the Departmental file. The applicant has not informed the Tribunal of his inability to give evidence or participate in the Hearing. He did so without any apparent difficulties. He appears to have understood and responded to the questions posed by the Tribunal. Overall, the Tribunal is satisfied that the applicant had a genuine opportunity to give evidence and present arguments”

   Applicant claims that he had no ability to express his evidnece I[sic] orally. He was always confused about what he is saying and what he understood the questions asked by the Tribunal. The Bangladeshi Language Interpreter never told the Tribunal about his ability to speak and understanding. The Tribunal presumed that the applicant did so without any difficulties. The Tribunal her self was not so sure and wrote in the decision that “He appears to have understood and responded to the questions posed by the Tribunal.”

   The applicant claims that he did not understood [sic] nearly half of the issues and question raised or asked by the Tribunal.

2. Most of the passage after the word “Particular” is taken from paragraph 14 of the Tribunal’s reasons for decision. The “psychometric assessment in relation to the applicant, conducted at . . . Detention Centre” to which the Tribunal referred appears to be a reference to the “ASeTTS Torture and Trauma Assessment Report” dated 14 May 2013 prepared by a psychologist at a detention centre.[24] Under the heading “Client Presentation Summary”, the report recorded, among other things, the applicant has an “[a]lert level of consciousness”, “[n]ormal thought form and content”, “[c]orrect orientation to time, place and person”, “[g]ood insight into current situation”, “[s]ound judgment”, and “[a]ble to perform all normal daily activities”. Under the heading “Psychometric Testing”, the report records the applicant scored 2.10 and 2.30 for anxiety and depression respectively, and notes that scores equal to or above 1.75 “are considered symptomatic”. The report also records the applicant completing a second test relating to PTSD, in which the applicant scored 2.25, and notes that an average score equal to or above 2.50 “are considered symptomatic for PTSD”. The report also concluded the applicant was “suffering from moderate levels of anxiety and depression”.

   [24] CB114

3. The applicant, who is not legally represented, relied on a report dated 28 October 2014 prepared by a psychologist addressed to the Department.[25] The letter reported that the medical centre of which the psychologist is a member provides short-term intervention and counselling for clients with mental health issues, and that the applicant had already received four hours of assessment and intervention with the psychologist. The letter further states that the applicant:

   reports to be suffering from the following symptoms: Depressed mood, decreased appetite, decreased sleep, decreased energy levels, nightmares about past abuse, feelings of hopelessness about the future and visa status, and some suicidal thoughts (however no current plans). [The applicant’s] current symptoms meets [sic] the ICD10 diagnostic criteria for MAJOR DEPRESSIVE EPISODE.

   [The applicant] would benefit from further psychological intervention and support. . . .

   If possible please approve [the applicant] a further six psychological sessions. (Emphasis in original)

   [25] CB179

4. I read ground 1 as claiming that the applicant suffered from a medical condition which denied him a real and meaningful opportunity to present evidence and make submissions, as required by s.425(1) of the Act.

1. The Tribunal will make a jurisdictional error if an applicant participates at a hearing before it while labouring under a medical or mental condition that has the effect of denying the applicant a real and meaningful opportunity to give evidence and present submissions. The Tribunal will make a jurisdictional error in these circumstances even if the Tribunal is unaware or could not reasonably have become aware that the applicant was labouring under such medical or mental condition. The reason why that is so was explained by the Full Federal Court in Minister for Immigration & Multicultural & Indigenous Affairs v SCAR:[26]

   On the other hand, it is also clear that s 425 of the Act imposes an objective requirement on the Tribunal. The statutory obligation upon the Tribunal to provide a ‘real and meaningful’ invitation exists whether or not the Tribunal is aware of the actual circumstances which would defeat that obligation. Circumstances where it has been held that the obligations imposed by s 425 of the Act have been breached include circumstances where an invitation was given but the applicant was unable to attend because of ill health: Applicant NAHF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 140. They also include circumstances where the statements made by the Tribunal prior to the hearing have misled the applicant as to the issues likely to arise before the Tribunal: VBAB of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 804. They also include circumstances where the fact or event resulting in unfairness was not realised by the Tribunal. For example, circumstances such as where the applicant was invited to attend and did attend before the Tribunal, but was effectively precluded from taking part because he could not speak English and a translator was not provided or was inadequate: Tobasi v Minister for Immigration and Multicultural Affairs [2002] FCA 1050; W284 v Minister for Immigration and Multicultural Affairs [2001] FCA 1788.

   [26] Minister for Immigration & Multicultural & Indigenous Affairs v SCAR [2003] FCAFC 126; (2003) 128 FCR 553 at [37]

2. There is some uncertainty about the degree of incapacity resulting from an applicant’s medical or mental condition that must be demonstrated before it may be concluded the applicant was not given a real and meaningful opportunity to give evidence and present arguments. Flick J reviewed the authorities in SZQBN v Minister for Immigration and Border Protection.[27] His Honour referred[28] to Minister for Immigration and Citizenship v SZNCR where Tracey J said that “an applicant who has a diagnosed mental impairment which does not render him or her “entirely unfit”. [29] Flick J said, however, that Tracey J should not be taken “as setting forth the only circumstances in which the opportunity guaranteed by s 425 may be denied”.[30] His Honour further said that a “claimant falling short of being “unable” to give evidence and present argument may, in an appropriate case, nevertheless also be denied a meaningful opportunity to be heard”.[31]

   [27] [2014] FCA 686

   [28] [2014] FCA 686 at [46]

   [29] [2011] FCA 369 at [40]

   [30] [2014] FCA 686 at [46]

   [31] [2014] FCA 686 at [46]

3. In my opinion, whether an applicant has been denied a real and meaningful opportunity to participate in the hearing is to be determined by applying the words “real and meaningful” to the circumstances of the case. Attention will need to be given to what is required for a person to have a real and meaningful opportunity to participate at a hearing. At the very least, that would require the applicant to be able to understand the questions asked of him and her, and to answer such questions. It will also require the applicant to understand words and sentences spoken by the Tribunal member, and to be able to communicate answers by the construction and uttering of meaningful sentences. Whether or not an applicant has these abilities in a given case will depend on the person’s cognitive and intellectual capacities; but it may also depend on whether the applicant was suffering from physical ailments. For example, the applicant may have been in severe pain, or may have been experiencing severe respiratory problems.

4. The question, therefore, is whether, in the circumstances of this case, there is evidence on the basis of which I can be satisfied the applicant suffered from any medical or mental condition that denied him a real and meaningful opportunity to give evidence and present arguments at the hearing before the Tribunal. The psychometric report does not suggest the applicant suffered from any condition that would or could have prevented the applicant from having a real and meaningful opportunity to give evidence and present arguments. On the contrary, the report suggests that, as at the day on which he presented for the assessment, the applicant had the capacity to participate in a real and meaningful way in a hearing before the Tribunal. Nor is the report of 28 October 2014 capable of establishing the applicant suffered from a condition that denied him a real and meaningful opportunity to appear at the hearing. It is true the report concluded the applicant suffered from a “major depressive disorder”. The report did not, however, state that that disorder impaired or potentially impaired the applicant’s ability to participate in a hearing.

5. There is also other evidence. First, as the Tribunal recorded in its reasons for decision, the applicant did not inform the Tribunal that he was suffering from any condition that impaired his ability to participate in the hearing. That suggests the applicant did not perceive he had any difficulties, and that his perception was accurate. Second, and as is also recorded by the Tribunal in its reasons for decision, the applicant gave evidence without any apparent difficulties, and that he appeared to understand and respond to the Tribunal’s questions.

6. In his written submissions, the applicant claimed he was “always confused about what he is saying and what he understood the questions asked by the Tribunal”, and that the applicant did not understand “nearly half of the issues and questions raised or asked by the Tribunal”. [32] These are no more than assertions. The applicant has not attempted to identify the matters about which he complains he was confused or did not understand; nor has the applicant provided any evidence on the basis of which it could be found that the applicant suffered from some condition that impaired his ability to understand the issues and the questions identified and asked by the Tribunal.

   [32]  Applicant’s Outline of Submissions, 11.08.2016, page 2

7. The applicant also submitted in his written submission that the interpreter “never told the Tribunal about his ability to speak and understanding”.[33] That implies the applicant said something to the interpreter about his ability or inability to speak and understand. There is no evidence, however, to support this claim; and the Tribunal’s reference to the applicant’s apparently being able to understand the questions asked of him, and to answer those questions, suggest the claim is incorrect.

   [33] Applicant’s Outline of Submissions, 11.08.2016, page 2

8. At the hearing before me, the applicant repeated his submissions that he could not understand the questions during the hearing before the Tribunal, and that he was too traumatised. I do not accept these submissions because they are assertions that are not supported by any evidence. 

9. For these reasons, ground 1 fails.

Ground 2

1. The second ground is:

   The applicant claims to fear serious harm in Bangladesh on the Conventional grounds of his actual or imputed political opinion in favour of the Bangladesh National Party and against the Awami League. The Refugee Review Tribunal made a jurisdictional error when it failed to real test of persecution and harm according to the Migration Act.

   Particulars

   The Tribunal raised several irrelevant issues to discredit the facts. The applicant did not express all the things at the time of first interview because of his mental and physical conditions and because of that he gave all the evidence in the Application which was correct and true. He was falsely accused for involvement of a case and latter [sic] on he was informed by the relatives that the charge has been dropped.  He never spoke any thing false or lie. He was a truthful witness and still believes that he was a fear of harm and persecution from the Awami League Party workers and leaders.. because of his membership of the BNP party. The applicant claims that the RRT failed to implement the UN Convention reasons in considering the Refugee Application of the Applicant.

2. This ground claims the Tribunal failed to apply the correct legal criteria for determining whether the applicant had a well-founded fear of persecution. I do not accept that claim. The Tribunal correctly stated the criteria by reference to which it was required to assess the applicant’s claims for protection, both on the basis that the applicant claimed he was a “refugee” within the meaning of Art 1A(2) of the Convention relating to the Status of Refugees (1951) as amended by the Protocol relating to the Status of Refugees (1967) (Refugees Convention), and on the basis the applicant claimed complementary protection. The Tribunal rejected the claims because it did not accept the applicant’s evidence on which his claims were based.

3. The particulars on which the ground relies, however, include matters on which the applicant relies for claiming that the Tribunal was incorrect in not accepting the applicant was a witness of truth. That does not disclose jurisdictional error by the Tribunal; it seeks merits review of the Tribunal’s decision.

4. The particulars also claim the Tribunal “raised several irrelevant issues to discredit the facts”. The particulars do not identify the irrelevant issues on which it is claimed the Tribunal relied for not accepting the applicant as a witness of truth. There is nothing in the Tribunal’s reasons for decision that could suggest it relied on irrelevant issues. In my opinion, it was reasonably open on the Tribunal to rely on the matters it did for not accepting the applicant to be a witness of truth.

5. The applicant’s written submissions repeated most of the particulars to ground 2, and there is no need to repeat what I said in the preceding paragraphs. At the hearing before me, the only submission the applicant made in relation to ground 2 is that he has been physically harmed, and he wanted justice. The applicant also said the Tribunal did not take heed of his mental trauma. Whether or not the applicant will be harmed if he returns to Bangladesh is not a matter that is relevant to whether the Tribunal made a jurisdictional error. And I do not accept the Tribunal did not consider the applicant suffered from any mental impairment that would deny him a real and meaningful opportunity to give evidence and present arguments to the Tribunal. The Tribunal referred to the psychometric assessment, and to the applicant’s not raising any inability to answer questions, and to the applicant’s apparent ability to comprehend and answer questions asked of him.

6. Ground 2, therefore, fails.

Ground 3

1. The third ground is:

   The Tribunal failed to apply the correct rest in relation to the complementary Protection Provision contained in section 36(2)(aa) of the Migration Act 1958. The Tribunal made a jurisdictional error when it did not follow Rules of Real Risk Test of persecution and harm.

   Particulars

   The RRT ignored the relevant consideration related with complementary Protection set out in s 36(2)(aa).

   The harm or the mistreatment feared by the applicant on return is for reasons of one or more of five grounds of recognized in the Refugee Convention.

   Applicant claims that his fear of harm or mistreatment is for the Convention reasons of political opinion and membership of the particular social group BNP.

   Applicant’s fear of farm is well-founded and that there is a real chance that he will suffer persecution if he returned to Bangladesh. The Tribunal totally discarded all the facts presented in oral and written evidence.

2. In this ground, the applicant claims the Tribunal failed to apply, or correctly to apply, the complementary protection criterion prescribed by s.36(2)(aa) of the Act, and also the criterion prescribed by s.36(2)(a) of the Act. The ground cannot succeed. As I have already found, the Tribunal correctly stated the criteria by reference to which it was required to assess the applicant’s claims for protection, both on the basis that the applicant claimed he was a “refugee” within the meaning of Art 1A(2) of the Refugees Convention, and on the basis the applicant claimed complementary protection. The Tribunal rejected the claims because it did not accept the applicant’s evidence on which his claims were based.

3. Ground 3, therefore, fails.

Other matters

1. At the hearing, the applicant submitted the Tribunal did not consider documents he provided to the Tribunal. That is not correct. As I have already noted, the Tribunal considered the documents but, for the reasons it gave, it did not accept the documents to be genuine. It was reasonably open to the Tribunal to so conclude for the reasons on which it relied.

Disposition

1. For these reasons, I propose to order that the application be dismissed. I also propose to order that the Administrative Appeals Tribunal be substituted for the Tribunal as the second respondent.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Date: 9 September 2016