BJT15 v Minister for Immigration

[2016] FCCA 1084

FEDERAL CIRCUIT COURT OF AUSTRALIA

BJT15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1084

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political persecution in Bangladesh – applicant not believed – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), s.424A

Cases cited:
Chen v Minister for Immigration [2011] FCAFC 56
Minister for Immigration v SZNSP (2010) 184 FCR 485
MZXSA v Minister for Immigration (2010) 117 ALD 441
ReMinister for Immigration; Ex parte Applicant S20/2002 (2003) 198 ALR 59; [2003] HCA 30; (2003) 77 ALJR 1165
VAAD v Minister for Immigration [2005] FCAFC 117

Applicant: BJT15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1961 of 2015

Judgment of: Judge Driver

Hearing date: 6 May 2016

Delivered at: Sydney

Delivered on: 31 May 2016

REPRESENTATION

Counsel for the Applicant: Mr B Zipser

Counsel for the Respondents: Ms R Francois

Solicitors for the Respondents: DLA Piper

ORDERS

1. The application filed on 15 July 2015 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1961 of 2015

BJT15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

1. This is an application to review a decision of the former Refugee Review Tribunal, now the Administrative Appeals Tribunal (Tribunal).  The decision was made on 23 June 2015.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. 

2. The following statement of background facts is derived from the submissions of the parties.

3. The applicant is a 32 year old male citizen of Bangladesh.[1]  The applicant first arrived in Australia on 31 August 2012 as the holder of a one year “Temporary Work and Holiday” visa.[2]  The applicant stayed in Australia for approximately 10 months before departing again for Bangladesh on 24 June 2013.[3]  The applicant returned to Australia on 30 July 2013 and made the application for the protection visa on 28 August 2013.[4] 

   [1] Court Book (CB) 12-13.

   [2] CB 67.5

   [3] CB 67.5

   [4] CB 67.5.

4. In his “Statement” in support of the visa application dated 27 August 2013, the applicant claimed he had been subjected to one incident of violence on “12 June 2010” as result of his involvement with the student wing of the Bangladeshi National Party (BNP).[5]  The applicant claimed that when he returned to Bangladesh “a group of Awami cadres” attacked his home in July 2013 “searching for him”[6] and later, after he sought police assistance, some “plain clothes police” began searching for him and he decided to leave Bangladesh at the urging of his mother.[7]

   [5] CB 27–29.

   [6] CB 29 [10].

   [7] CB 29 [11].

5. In October 2013 the applicant provided to the Minister’s Department a number of documents which, on their face, were contemporaneous records from Bangladesh which corroborated aspects of the applicant’s claims.[8]  The documents included:

   [8] CB 40-58.

   a)a letter from the President of a college dated 20 July 2013 (which states that the applicant was “very active in student politics” when at the college, and was involved in Chhatra Dal which is the student wing of the BNP);[9]

   b)a letter from the President of Rupganj Thana Chatra Dal dated 18 July 2013 (which states that the applicant was the joint Secretary of the Rupganj Thana Chhatra Dal);[10]

   c)a letter from the General Secretary of a branch of the BNP (which states that the applicant was “an activist of Dhaka Mohanagar Jatyotabadi Dal” within the BNP);[11]

   d)a letter from the President of the Narayanganj District branch of the BNP dated 23 July 2013 (which refers to some of the applicant’s political activities);[12]

   e)an undated letter from the General Secretary of Narayanganj District branch of the BNP (which refers to some of the applicant’s political activities);[13]

   f)medical records concerning occasion on which the applicant claimed he was beaten up in June 2010;[14]

   g)police record of report by the applicant to police in July 2013;[15]

   h)newspaper article from the 21 July 2013 edition of The Daily Muktakhaba reporting a death threat against the applicant;[16]

   i)newspaper article from a July 2013 edition of The Daily Janatar Sangbad reporting a death threat against the applicant.[17]

   [9] CB 40.

   [10] CB 41.

   [11] CB 42.

   [12] CB 43.

   [13] CB 44.

   [14] CB 46-47.

   [15] CB 53-54.

   [16] CB 55-56.

   [17] CB 57-58.

6. On 11 February 2014, the applicant attended an interview with the Minister’s delegate.[18]  The delegate questioned the applicant and disbelieved his claims.  The delegate set out excerpts from the transcript of the interview highlighting the applicant’s lack of knowledge of BNP matters which a high level BNP supporter would be expected to know, the applicant’s new and inconsistent claims and his lack of reference to his own documentary evidence.[19]  The delegate also referred to the incidence of document fraud in Bangladesh.[20]

   [18] CB 69.6.

   [19] CB 72-78.

   [20] CB 79.5.

7. On 31 July 2014, the delegate refused the application.[21]

   [21] CB 60- 89.

8. On 22 August 2014, the applicant lodged an application for review of the delegate's decision with the Tribunal.[22] On 8 May 2015, the Tribunal wrote to the applicant, pursuant to s.424A of Migration Act 1958 (Cth) (Migration Act), and sought his comments on the following issues:[23]

   a)his travel and stay in Australia in 2012 and 2013 for 10 months and his willing return to Bangladesh in June 2013;

   b)his failure to refer to other incidents in his written statement which were raised for the first time before the delegate; and

   c)his explanation to the delegate that he did not take any action after the 2010 incident because he allegedly did not want to disrupt his studies.

   [22] CB 106-142.

   [23] CB 147-148.

9. In that letter, the Tribunal explained, among other things, that the credibility concerns these issues raised could lead the Tribunal to find that the supporting documents he had provided were not “probative” and the Tribunal could decide to give them “no weight”.

10. By letter dated 29 May 2015, the applicant provided his response to the Tribunal’s 424A letter.  The letter gave rise to further inconsistencies in the applicant’s evidence.[24]

    [24] CB 154 – 155.

11. On 19 June 2015, the applicant attended a hearing before the Tribunal.[25]

    [25] CB 160, 179 [4].

12. On 23 June 2015, the Tribunal affirmed the decision not to grant the applicant a protection visa.  In substance, the Tribunal, like the delegate, thoroughly disbelieved the applicant’s claims.  There is a question whether, in the course of disbelieving the applicant, the Tribunal had regard to the allegedly corroborative evidence.  The Tribunal ultimately concluded that the documents provided were not probative and gave them no weight.[26]

    [26] 186 [31].

The present application

1. These proceedings began with a show cause application filed on 15 July 2015.  There are four grounds in that application:

   1.    The Tribunal found (at paragraphs 18 and 31) that the applicant was not a credible witness.  The Tribunal fell into jurisdictional error in making this finding.

   2. The Tribunal found at paragraph 31 that, because the applicant was not a credible witness, the documents he presented to the Tribunal had no probative value and should be given no weight.  The Tribunal fell into jurisdictional error in making this finding.

   3. The Tribunal found at paragraph 34 that the applicant did not have a genuine fear of harm if required to return to Bangladesh.  The Tribunal fell into jurisdictional error in making this finding.

   4. The Tribunal found at paragraph 38 that “there is no real chance that the applicant will be persecuted … if he were to return to Bangladesh”.  The Tribunal fell into jurisdictional error in making this finding.

2. A show cause hearing was conducted on 23 March 2016.  The applicant was at that hearing represented by counsel (who also represented the applicant at the final hearing).  I accepted that an arguable case had been advanced in relation to the first two grounds in the application and made the following order:

   Pursuant to rule 44.12(1)(b) of the Federal Circuit Court Rules 2001 (Cth), the Minister is to show cause why relief should not be granted in relation to Grounds 1 and 2 of the application filed as explained in the applicant’s written submissions, namely that, in relation to Ground 1, the Tribunal overlooked relevant material and, in relation to Ground 2, the Tribunal’s decision was unreasonable.

3. For the purposes of the final hearing, I have before me as evidence the court book filed on 3 September 2015. 

4. The applicant and the Minister both made additional pre-hearing submissions in writing and made oral submissions at the trial on 6 May 2016.

Consideration

Ground 1 – did the Tribunal overlook relevant material?

1. The applicant contends that the Tribunal overlooked an explanation he provided to the Minister’s delegate why he returned to Bangladesh in mid 2013 (to care for his sick mother).  I accept the Minister’s submission that this ground fails.

2. The fundamental difficulty for the applicant is that when he was given the opportunity to comment in writing (and later orally) to the Tribunal on the issue of his return to Bangladesh in 2013 he only gave the following explanation:[27]

   Yes, I did not apply an application for protection visa when I travelled to Australia at first time because at that time I was thinking that after passing one year everything would be normal and I lead a peaceful life.  When I left Australia in June 2013 I took a one-way air ticket.

   You refer that I failed to make the application for protection at first available opportunity.  But my opinion is that my life in Australia is some difficultly and hardship.  Here, I have no house, no relatives and no family.  I am very lonely.  I have to survive for everything, for house rent, grocery and traveling cost.  I do not apply for a good job because I am not permanent resident here.  When I apply for a good job they ask me permanent resident or not and I reply no and do not get that job.

   [27] CB 154.

3. At the Tribunal hearing, the applicant expanded upon this explanation by only saying that “he had the feeling that things had improved and that is the reason he decided to return to Bangladesh.”[28]  That is the explanation addressed by the Tribunal at [20] and [24].

   [28] CB 181 [20].

4. Further, the explanation given to the delegate is not only inconsistent with the evidence given to the Tribunal referred to above but also inconsistent with the applicant’s statement of 27 August 2013 where he claimed his intention in 2013 was to return and live permanently in Bangladesh (ie, not a quick mercy mission for his sick mother).[29]

   [29] CB 28 [9].

5. Accordingly, the applicant’s explanation of his mother’s alleged illness can only confirm the Tribunal’s adverse credibility finding.  It cannot be said to be evidence of such compelling force that the Tribunal’s failure to consider it constituted an error.[30]

   [30] contrast VAAD v Minister for Immigration [2005] FCAFC 117; cf MZXSA v Minister for Immigration (2010) 117 ALD 441.

Ground 2 – did the Tribunal fail to address allegedly corroborative evidence?

1. The applicant makes the following submissions in support of this ground.

2. The Tribunal’s method of reasoning was to:

   a)first consider whether the applicant was a credible witness without regard to the documents; and

   b)after finding that the applicant was not a credible witness, then consider the documents.

3. This method of reasoning appears from [18], [30] and [31] of the Tribunal’s decision as follows:

   18. The Tribunal formed the view that the applicant is not a credible witness and that he has not been truthful in the claims he put forward in his protection visa application.

   …

   30. … the applicant presented with his application a number of supporting documents …

   31. For the reasons set out in this decision, the Tribunal has found the applicant not to be a credible witness and not to be a person of truth.  As such, the Tribunal does not consider that the documents presented by the applicant are of probative value.  The Tribunal gives these no weight.

4. The Tribunal’s method of reasoning “followed from” Re Minister for Immigration; Ex parte Applicant S20/2002;[31] and Minister for Immigration v SZNSP (SZNSP).[32]

   [31] (2003) 77 ALJR 1165 at [49].

   [32] (2010) 184 FCR 485.

5. In Ex parte Applicant S20/2002 at [49] McHugh and Gummow JJ stated:

   In a dispute adjudicated by adversarial procedures, it is not unknown for a party's credibility to have been so weakened in cross-examination that the tribunal of fact may well treat what is proffered as corroborative evidence as of no weight because the well has been poisoned beyond redemption. It cannot be irrational for a decision-maker, enjoined by statute to apply inquisitorial processes (as here), to proceed on the footing that no corroboration can undo the consequences for a case put by a party of a conclusion that that case comprises lies by that party. If the critical passage in the reasons of the tribunal be read as indicated above, the tribunal is reasoning that, because the appellant cannot be believed, it cannot be satisfied with the alleged corroboration. The appellant's argument in this court then has to be that it was irrational for the tribunal to decide that the appellant had lied without, at that earlier stage, weighing the alleged corroborative evidence by the witness in question. That may be a preferable method of going about the task presented by s 430 of the Act. But it is not irrational to focus first upon the case as it was put by the appellant.

6. In SZNSP the Full Federal Court considered this principle in more detail.  Some comments concerning the judgment of North and Lander JJ (with whom Katzmann J agreed) are as follows:

   a)their Honours stated at [33]:

   Thus, consistently with Applicant S20/2002 [2003] HCA 30; 198 ALR 59 it was open to the RRT to assess the credit of the first respondent and then, in the light of that assessment, consider what weight should be given to the witness statement. This was the process followed by the RRT which it described in the sentence "Given the adverse credibility finding, the Tribunal does not give weight to the document". Although expressed in the most cryptic terms, this statement shows that the RRT made an assessment of the value of the witness statement and then considered its effect in the light of the view it had formed to that point about the credibility of the first respondent.

   b)their Honours stated at [36]:

   When a decision maker has conducted a hearing of the kind which is conducted by the RRT and has heard the applicant, and has reached the tentative conclusion that the applicant’s claims have been fabricated, the decision maker is entitled in our opinion to reject evidence which would, if accepted, have corroborated the applicant’s account. That does not mean that any evidence of corroboration could be rejected. It would depend upon the nature, content and quality of the corroborative evidence before a decision maker could determine to reject it out of hand. In this case, as we have said, the document which is said to be the corroborative evidence is a document written in the Chinese language which has been interpreted, no doubt faithfully, into the English language and purports to be a statement of Lu. The applicant, whom the RRT believed was not a credible witness, proffered it as Lu’s statement, but there was no other evidence other than the applicant’s say so that it was. There is nothing irrational about the RRT in those circumstances rejecting the document by giving it no weight. In circumstances where the provenance of the document is unproved, but it is proffered by a witness whose credibility has been destroyed, the document has no more credit than the person proffering it. Consequently, the alternative argument relied upon by the appellants, outlined at [22] above, cannot be sustained.

   c)their Honours stated at [37] and [38]:

   Several further observations should be made concerning the type of situation addressed in Applicant S20/2002 [2003] HCA 30; 198 ALR 59. The case does not relieve the RRT from giving consideration to corroborative evidence. It concerns only the timing of that consideration. The case establishes that the RRT does not act irrationally, and thereby fall into jurisdictional error, by first making an assessment of the applicant’s credit and then giving attention to the corroborative evidence.

   The RRT would fall into jurisdictional error if, after making an adverse credibility finding, it simply refused to consider the corroborative evidence. Applicant S20/2002 [2003] HCA 30; 198 ALR 59 does not sanction a practice of disregarding corroborative evidence. It still requires that the corroborative evidence be assessed and weighed in the balance with all the other evidence. Consequently, the observation concerning the dicta of McHugh and Gummow JJ at [49] in Applicant S20/2002 [2003] HCA 30; 198 ALR 59 made in SZDGC v Minister for Immigration and Citizenship [2008] FCA 1638; (2008) 105 ALD 25 at [23] is probably misdirected. Those observations addressed the situation where the corroborative evidence was disregarded.

7. The applicant accepts that on the one hand, parts of the Tribunal’s findings use language equivalent to a finding that he has lied or fabricated his claims, such as “he has not been truthful” at [18]. He submits, however, that on the other hand, a larger part of the Tribunal’s findings use language which is more qualified or uncertain. For example:

   a)at [22] the Tribunal states that “the applicant’s conduct offers a strong indication … that the events he described in his protection visa application did not take place”;

   b)at [26] the Tribunal states that the late raising of claims by the applicant “suggest such claims were fabricated … and that the applicant has been less than truthful in his protection visa application”;

   c)at [27(c)] the Tribunal states that inaction by the applicant “suggests to the Tribunal that the applicant may not have been truthful”;

   d)at [27(e)] the Tribunal states that the applicant’s conduct “suggests that he had no fear of harm and had not experienced the incidents to which he referred in his application”.

8. These findings are said to be not findings that the applicant has lied or fabricated his claims, but are instead more “qualified or uncertain” findings.

9. In SZNSP, North and Lander JJ stated that “the corroborative evidence [must] be assessed and weighed in the balance with all the other evidence” and that whether evidence of corroboration should be rejected “would depend upon the nature, content and quality of the corroborative evidence”.

10. On a judicial review application, it is for the court to decide whether or not the decision-maker “assessed and weighed in the balance” the corroborative evidence after considering:

    a)the nature of the credit findings against the applicant; and

    b)“the nature, content and quality of the corroborative evidence”. 

11. The applicant contends that, in the present case, it is open to the Court to conclude that the Tribunal did not properly carry out this assessment, giving rise to jurisdictional error. One reason is that it is said not to be clear from the Tribunal’s reasons for decision that it actually considered the content of all of the documents provided as corroborative evidence. A second reason is said to be that, as indicated at [28] above, some of the adverse credibility findings against the applicant were qualified.

1. I prefer the Minister’s submissions on this ground. In my opinion, this is a case where the Tribunal made comprehensive findings of untruthfulness against the applicant and, indeed, one of the documents the applicant relies upon was considered by the Tribunal in reaching its adverse credibility conclusions. The Tribunal had regard to the allegedly corroborating material prior to the Tribunal hearing, as is evidenced in the Invitation to Comment issued to the applicant pursuant to s.424A of the Migration Act.[33]  This is not a case where the Tribunal can be said to have completely disregarded allegedly corroborative material in the sense discussed in SZNSP. 

   [33] CB 147.

2. This ground is not advanced by the selected quotes from the Tribunal’s reasons which were employed to suggest that it had not emphatically rejected the applicant’s credit prior to addressing the question of the alleged corroborative material.

3. The first problem with this argument is that the Tribunal did address and consider the alleged corroborative material in rejecting the applicant’s credit.[34]  That is, this is not a case where the Tribunal put allegedly corroborative evidence from its mind in determining the applicant’s credit.

   [34] see [25(b)] of the Tribunal decision record at CB 182-183.

4. The second, and more fundamental, problem is that the Tribunal’s reasons read as a whole show it did emphatically reject the applicant’s credit.[35]

   [35] see the language in [18], [19], [20], [23], [24], [25], [26], [27], [31], [34] and [36].

5. Accordingly, even if the Tribunal only addressed the corroborative evidence after considering the issue of the applicant’s credit (which it did not), that approach was in accordance with the “poisoned well” method.[36]

   [36] see eg ReMinister for Immigration; Ex parte Applicant S20/2002 (2003) 198 ALR 59; [2003] HCA 30 at [49] per McHugh and Gummow JJ; Minister for Immigration v SZNSP (2010) 184 FCR 485 at [33], [37] to [38] per North and Lander JJ; Chen v Minister for Immigration [2011] FCAFC 56 at [35] per Bennett, Nicholas and Yates JJ.

Conclusion

1. The applicant has failed to establish that the decision of the Tribunal is affected by jurisdictional error.  The decision is therefore a privative clause decision and the application must be dismissed.  I will so order.

2. I will hear the parties as to costs.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date: 31 May 2016