Bhe15 v Minister for Immigration
[2016] FCCA 1914
•26 July 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BHE15 v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 1914 |
| Catchwords: MIGRATION – Review of decision by Administrative Appeals Tribunal – whether Administrative Appeals Tribunal’s decision affected by jurisdictional error – whether the Administrative Appeals Tribunal erred in having regard to inconsistencies in the applicant’s evidence given at the hearing before a differently constituted Administrative Appeals Tribunal – whether the Administrative Appeals Tribunal was entitled to rely on country information in deciding whether applicant’s supporting documents were bogus – whether the Administrative Appeals Tribunal acted in bad faith in the conduct of its review – no jurisdictional error – application dismissed. |
| Legislation: Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5, 31, 36, 65, 411, 422B, 424A, 425, 474, Migration Regulations 1994 (Cth), reg.2.01 |
| Cases Cited: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 SZEPZ v Minister for Immigration & Multicultural Affairs (2006) 159 FCR 291 SZITD v Minister for Immigration and Citizenship [2007] FCA 1343 SZJBE v Minister for Immigration and Citizenship [2007] FCA 190 Minister for Immigration and Citizenship v WZANC (2010) 119 ALD 275 Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749 Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 | ||
| Applicant: | BHE15 | |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1881 of 2015 |
| Judgment of: | Judge Emmett |
| Hearing date: | 26 July 2016 |
| Date of Last Submission: | 26 July 2016 |
| Delivered at: | Sydney |
| Delivered on: | 26 July 2016 |
REPRESENTATION
| The applicant appeared in person with the assistance of a Bengali interpreter. |
| Solicitor for the Respondents: | Ms Natasha Blake (Clayton Utz) |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1881 of 2015
| BHE15 |
Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
EX TEMPORE
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal dated 9 June 2015 and handed down on 10 June 2015.
The applicant claims to be a citizen of Bangladesh, who fears harm from members of the Awami League due to his claimed affiliation with the Bangladesh Nationalist Party (“the BNP”).
Procedural history
The applicant arrived in Australia on 14 October 2012, having departed legally from Bangladesh on a passport issued in his own name and a visitor visa issued on 9 August 2012.
On 26 November 2012, the applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”).
On 19 March 2013, the Department invited the applicant to attend an interview with a delegate of the Department (“the Delegate”) on 8 April 2013. However, the applicant did not attend that interview.
On 2 July 2013, the Delegate refused the applicant’s application for a protection visa on the basis that the applicant was not a person to whom Australia had protection obligations under the Refugees Convention and did not meet the alternative complementary protection criterion in s.36(2)(aa) of the Act.
On 30 July 2013, the applicant lodged an application for review of the Delegate’s decision by the then Refugee Review Tribunal (“the First Tribunal”).
On 4 June 2014, the First Tribunal affirmed the decision of the Delegate not to grant a protection visa to the applicant.
By consent, the decision of the First Tribunal was remitted to a differently constituted Tribunal (“the Second Tribunal”) for determination according to law.
On 10 June 2015, the Second Tribunal handed down its decision affirming the decision of the Delegate not to grant a protection visa.
On 7 July 2015, the applicant filed an application in this Court seeking judicial review of the Second Tribunal’s decision.
Legislative framework
Pursuant to s.65(1) of the Act, if satisfied of a number of matters, the first respondent may grant a visa. Section 31(1) of the Act provides that there are to be prescribed classes of visa. One class of visa is a Protection (Class XA) visa (reg.2.01 of the Migration Regulations 1994 (Cth) (“the Regulations”) and Schedule 1 to the Regulations).
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia in respect of whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 36(2)(aa) of the Act provides that:
“(2) A criterion for a protection visa is that the Applicant for the visa is:
(aa) a non-citizen in Australia (other than a citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm.”
Sections 36(2A) and 5 of the Act defines “significant harm.”
Under s.411(1)(c) of the Act, a decision to refuse to grant a protection visa is a decision which may be reviewed by the second respondent.
The requirements of the natural justice hearing rule are exhaustively stated in Division 4 of Part 7 of the Act (s.422B(1) of the Act). Division 4 Part 7 includes ss.424A and 425, which provide that:
“424A Information and invitation given in writing by Tribunal
(1) Subject to subsections (2A) and (3), the Tribunal must:
(a) give to the Applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review.
425 Tribunal must invite Applicant to appear
(1) The Tribunal must invite the Applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.”
Under s.474(2) of the Act, a decision of the second respondent is a “privative clause decision”. Under s.474(1)(a) of the Act, a privative clause decision is final and conclusive.
However, a purported decision of the second respondent which is affected by jurisdictional error is not a decision which is made under the Act and therefore is not a privative clause decision (see Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476).
The applicant’s claims for protection
The applicant claimed that he was the assistant secretary at his local branch of the BNP. He also claimed to have been involved with the BNP in Dhaka, the capital city of Bangladesh. The applicant claimed that members of the Awami League targeted and threatened him many times due to his popularity. The applicant also said that he was physically attacked twice.
Additionally, the applicant claimed that his business was destroyed by members of the Awami League. The applicant said that, when his wife went to the police, the police refused to accept the accusation as it was against members of the Awami League. The applicant further claimed that the Awami League influenced the police to harass him. The applicant claimed that, in October 2012, the police came to arrest him and that he was forced to go into hiding before coming to Australia.
The applicant claimed that he will be attacked and killed by members of the Awami League if he returns to Bangladesh. The applicant also claimed to fear being arrested and placed in detention by the police. Additionally, the applicant stated that he feared the police may add his name to existing criminal cases. The applicant claimed that the Rapid Action Battalion (“RAB”) and the police may place him in a “crossfire” incident.
The Second Tribunal’s review and decision
On 5 March 2015, the applicant attended a hearing before the Second Tribunal and gave evidence. At the hearing, the applicant provided further documents in support of his review application.
The Second Tribunal summarised in some detail the various claims made by the applicant, both at the hearing before First Tribunal and before the Second Tribunal. The Second Tribunal noted that it put various concerns that it had about the applicant’s evidence to him for comment, and noted his responses.
As stated above, on 10 June 2015, the Second Tribunal affirmed the decision of the Delegate not to grant a protection visa. The Second Tribunal’s findings and reasons are accurately summarised in the submissions of the first respondent’s solicitor, Ms Blake, as follows:
“Tribunal findings
10. The Tribunal found that the applicant was not a credible witness. At [20]-[21] of its decision record the Tribunal detailed several inconsistencies in the applicant's evidence regarding his:
(a) position in the party. The applicant was unable to credibly account for the discrepancies between his claimed role as Assistant Secretary, and the role of Vice President that was claimed in his protection application and certain of his supporting documents. The Tribunal observed that his evidence before the previous Tribunal was similarly inconsistent, and at one stage included the additional claim to have held the role of President. The Tribunal did not accept the applicant's suggestion that these terms were interchangeable;
(b) knowledge and activism. When the applicant's limited knowledge of the party exhibited before the previous Tribunal was put to him, he responded by downplaying the scope of his role in vague terms. The applicant suggested that his role was largely limited to providing donations and encouraging local people to join. This was inconsistent with his claim to have been a popular BNP leader who led large demonstrations against the Awami League and held senior positions within the party;
(c) actions whilst in hiding. Despite claiming that Awami League members were actively searching for him, which forced him to live in hiding, the applicant claimed to have appeared in a public demonstration in October 2012. The Tribunal did not accept that this was explicable by the applicant's "love of the party";
(d) claim of false cases. Despite claiming to have false cases against him, which caused him to go into hiding, the applicant was able to leave and enter the country using a passport in his own name when he travelled to the UK in 2011 and 2012;
(e) return from the UK. The applicant's voluntary return from the UK in 2011 and 2012 was inconsistent with the applicant's claimed fear of harm.
11. The Tribunal also considered much of the applicant's evidence about the harm he allegedly suffered to be “at best, unlikely”;
(a) the Tribunal found it generally implausible that in the two years between 2011 and his departure for Australia in late 2012 his home was visited on 40 to 50 occasions by Awami League supporters and on 15 to 20 occasions by the police/RAB, and yet he was able to avoid harm by, inter alia, “hiding under the bed”;
(b) the applicant's claim to have escaped death in September 2012 when he was assaulted by as many as 15 or 16 Awami League supporters appeared improbable;
(c) the applicant's delay of over two months between an Australian visa being granted and his travel to Australia appeared incompatible with his claimed fear of harm. When put to him, the applicant suggested that he wished to visit Australia as a tourist and it was coincidental that, some months after the visa was issued, he was forced to flee the country. The Tribunal observed that this explanation would require the Tribunal to accept that despite having already been threatened, attacked and forced to go into hiding, he decided to visit Australia for some sight-seeing after which he intended to return to Bangladesh. The Tribunal found this far-fetched, and did not accept the applicant's evidence.
12. The Tribunal noted that the applicant had provided documents in support of his claims, including a first information report (FIR), medical records, a letter purportedly from Mr Md Towhidur Rahman (Rahman letter) and letters from Mr Monirul Hoque George (George letter) and Dr Abdul Wahab (Wahab letter). However, the Tribunal did not place weight upon these documents for the following reasons:
(a) the FIR did not refer to the applicant's name in connection with the documented events;
(b) the Tribunal's "strong concerns" regarding the applicant's credibility, combined with country information regarding the prevalence of document fraud in Bangladesh, led the Tribunal to place limited weight upon the medical records and the Rahman letter;
(c) the Tribunal observed that the Wahab letter was inconsistent with the applicant's claims, in that it alleged that the applicant held the position of one of the Vice Presidents of the Jubodal in Murudnager. Both the Wahab letter and the George letter alleged harassment from the authorities and/or the RAB. Given the Tribunal's rejection of these claims, for the reasons set out above, the Tribunal did not accept the accounts in the letters.
13. Ultimately, the Tribunal was not satisfied that the applicant was a person to whom protection obligations were owed.”
The proceeding before this Court
The applicant was unrepresented before this Court, although had the assistance of a Bengali interpreter.
On 30 July 2015, the applicant attended a directions hearing before a Registrar of the Court. The applicant was given leave to file and serve an Amended Application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, as well as submissions in support. At the request of the first respondent, the matter was set down for a show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) on 23 September 2015.
On 23 September 2015, the applicant attended a show cause hearing before me. The applicant was again given leave to file and serve an Amended Application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, as well as submissions in support. The matter was then set down for final hearing.
At the commencement of today’s hearing, I explained to the applicant that the role of this Court is very different to that of the Tribunal, and that it is not for this Court to reconsider his claims and reach different findings or conclusions. I also explained to the applicant that the only issue before this Court is whether or not the decision of the Second Tribunal was made according to law. I explained to the applicant that this Court has no power to interfere with the decision of the Second Tribunal, unless the Court is satisfied that the decision of the Second Tribunal is affected by a mistake going to its jurisdiction. I further explained to the applicant that disagreement with the findings and conclusions of the Second Tribunal rarely, by itself, establishes such a mistake.
The applicant confirmed that he has not filed any Amended Application, evidence or submissions in support of his application and that he has no further documents to present to the Court this morning.
The applicant confirmed that he continued to rely on the grounds contained in his initiating application, filed on 7 July 2015, as follows:
“1. The Tribunal erred in law not disclosing information obtained from previous RRT proceeding. As such it breached s424A of the Migration Act 1958
Details:
The Tribunal used information obtained from previous RRT proceedings that it used to affirm the decision under review. The Tribunal did not disclose that information to the applicant.
2. The Tribunal incorrectly applied country information to determine “Bogus” “documents.
Details:
The applicant provided letters from BNP leaders in Australia to support his claims. The Tribunal used country information that states bogus documents were readily available in Bangladesh. The Applicant submits that using such country information in the applicant's matter is not appropriate because individuals in Australia wrote some of the letters he provided.
3. The Tribunal used bad faith in the applicant's case.
Details:
The Tribunal summarily rejected all claims made by the applicant. A thorough examination of the Tribunal proceeding would establish bad faith in the part of the Tribunal.”
(Errors in original).
Each of the grounds was interpreted for the applicant and the applicant was invited to say whatever he wished in support of each of the grounds and in support of the application generally.
Ground 1
In support of Ground 1, the applicant said that he had given all documents to the Second Tribunal and that those documents were true.
I explained to the applicant that the complaint he appeared to be making in Ground 1 was that the Second Tribunal used information that it had obtained from the hearing before the First Tribunal in affirming the decision under review. I explained that Ground 1 appeared to assert that the inconsistencies arising from the applicant’s evidence at the hearings before the First Tribunal and the Second Tribunal relied upon by the Second Tribunal were information that should have been given to him for comment pursuant to s.424A of the Act.
I explained to the applicant that the Second Tribunal was charged with the responsibility of conducting a valid review and, until such time as a determination had been made according to law, that review continued (see SZEPZ v Minister for Immigration & Multicultural Affairs (2006) 159 FCR 291 at [38]-[43] per Emmett, Siopis & Rares JJ; SZITD v Minister for Immigration and Citizenship [2007] FCA 1343 at [19]-[22] per Mansfield J; SZJBE v Minister for Immigration and Citizenship [2007] FCA 190 at [17] per Emmett J; Minister for Immigration and Citizenship v WZANC (2010) 119 ALD 275 at [26]-[43] per Siopis J; Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at [9] per French CJ and Kiefel J and at [50] and [77] per Gummow J (“SZGUR”)).
In particular, I explained to the applicant that the High Court of Australia in SZGUR specifically found that inconsistencies that arise from information provided by an applicant at subsequent tribunal hearings does not constitute information that enlivens any obligation under s.424A of the Act.
In the circumstances, the applicant’s complaint in Ground 1 is misconceived. In any event, the Second Tribunal put the concerns that it had about various aspects of the applicant’s evidence to him for comment, and noted his responses.
Accordingly, Ground 1 is not made out.
Ground 2
Ground 2 asserts that the Second Tribunal incorrectly applied country information in determining whether the applicant’s supporting documents were “bogus” documents. In support, the applicant referred to two letters from BNP leaders in Australia that he had submitted to the Second Tribunal.
The applicant stated that, in rejecting those letters, the Second Tribunal referred to country information indicating that bogus documents were readily available in Bangladesh. The applicant said that it was not open to the Second Tribunal to use such country information in respect of the letters that were authored by two persons in Australia.
Whilst the Second Tribunal had regard to country information about the prevalence of document fraud in Bangladesh, it did so in considering the applicant’s documents that originated from Bangladesh. The Second Tribunal did not rely on that country information in respect of the two letters the applicant provided from persons in Australia. The Second Tribunal separately determined that, on the evidence and material before it, and for the reasons given, it could not place weight on the content of either of the letters originating in Australia.
It is well settled that the country information to which the Tribunal has regard and the weight it gives that information is a matter for the Tribunal (see NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10, and VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29).
The Second Tribunal’s findings were open to it on the evidence and material before it, and for the reasons that it gave, including its adverse credibility findings. Credibility findings are a matter par excellence for the Tribunal (see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J). A credit finding is sound if it was “open to [the Tribunal] on the material, was based on rational grounds and was arrived at on consideration of matters that were logically probative of the issue of credibility” (see Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547).
Accordingly, Ground 2 is not made out.
Ground 3
In Ground 3 the applicant asserts that the Second Tribunal “used bad faith in [his] case”. In support, the applicant asserted that the Second Tribunal summarily rejected all of his claims.
The principles in relation to bad faith are set out in the decision of the Full Court of the Federal Court of Australia in SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749 (“SBBS”). In order for bad faith to be established, it must be shown that the Second Tribunal acted dishonestly, arbitrarily or capriciously (see SBBS at [42] – [59] per Tamberlin, Mansfield and Jacobson JJ).
To the extent that the applicant asserts that the Second Tribunal summarily rejected the applicant’s claims, I note that the Second Tribunal’s decision record is some 16 pages in length. It includes a detailed summary of the applicant’s claims and the exchanges that the Tribunal Member had with the applicant about his claims. The decision record discloses that the Second Tribunal referred to particular concerns that it had about the applicant’s evidence, and noted his responses. The applicant’s allegation of bad faith is otherwise wholly un-particularised.
It is well established that a tribunal is not required to accept uncritically any and all claims made by an applicant (see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 per Beaumont J; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596 per Kirby J; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70 per Wilcox J). Nor does a tribunal have to possess rebutting evidence before holding that a particular assertion was not made out (see Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J).
As stated above, the Second Tribunal’s findings were open to it on the evidence and material before it, and for the reasons it gave, including its adverse credibility findings. A fair reading of the Second Tribunal’s decision record does not disclose that there was any conduct on the part of the Second Tribunal in carrying out its review that could suggest that it acted dishonestly, arbitrarily or capriciously.
Accordingly, Ground 3 is not made out.
Conclusion
A fair reading of the Second Tribunal’s decision record makes clear that the Second Tribunal understood the claims being made by the applicant; explored those claims with the applicant at a hearing; and, had regard to all material provided in support. The Second Tribunal put to the applicant matters of concern it had about his evidence and noted the applicant’s responses. The Second Tribunal identified independent country information to which it had regard. The Second Tribunal also put to the applicant independent country information before it and invited the applicant to comment upon it.
The Second Tribunal then made findings based on the evidence and material before it. Those findings of fact were open to the Second Tribunal on the evidence and material before it and for the reasons it gave. A fair reading of the Second Tribunal’s decision record makes clear that the Second Tribunal reached conclusions based on the findings made by it and to which it applied the correct law.
In the circumstances, the Second Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.
The Second Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no power to interfere.
The proceeding before this Court should be dismissed with costs.
I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Judge Emmett
Date: 5 August 2016
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