BKB16 v Minister for Immigration
[2017] FCCA 555
•7 April 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BKB16 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 555 |
| Catchwords: MIGRATION – Protection visa application – review of decision of Administration Appeals Tribunal – whether the Tribunal’s decision was affected by an apprehension of bias or actual bias – whether the Tribunal erred by not providing the applicant with particulars under s.424A of the Migration Act 1958 (Cth) – whether the applicant was denied procedural fairness - whether the Tribunal’s decision was affected by an error of law – whether the Tribunal erred by failing to consider additional information and the relocation issue – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.40, 46, 166, 170, 175, 188, 192, 258D, 423A, 424A, 430(1) Migration Regulations 1994 (Cth) |
| Cases cited: ACR15 v Minister for Immigration & Border Protection & Anor (2015) 302 FLR 431; [2015] FCCA 2992 Minister for Immigration & Citizenship v SZQHH (2012) 200 FCR 223; [2012] FCAFC 45 Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507, 531; [2001] HCA 17 Minister for Immigration & Multicultural Affairs v Rajalingam (1999) 93 FCR 220; [1999] FCA 719 Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28 SZBYR v Minister for Immigration & Citizenship (2007) 81 ALJR 1190; [2007] HCA 26 |
| Applicant: | BKB16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1458 of 2016 |
| Judgment of: | Judge Smith |
| Hearing date: | 13 March 2017 |
| Date of Last Submission: | 13 March 2017 |
| Delivered at: | Sydney |
| Delivered on: | 7 April 2017 |
REPRESENTATION
| The applicant appeared in person. |
| Counsel for the First Respondent: | Mr G Johnson |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1458 of 2016
| BKB16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of Bangladesh who arrived in Australia on 15 March 2015 as a crew member on a cruise ship. He deserted his ship and made an application for a protection visa on 14 April 2015. That application was refused by a decision made by a delegate of the Minister on 30 October 2015. On 16 May 2016, the Administrative Appeals Tribunal affirmed the delegate’s decision. The applicant now seeks judicial review of the Tribunal’s decision.
In his amended application and written submissions, the applicant raises numerous grounds of review, many of which are difficult to understand and some of which are unparticularised.
The applicant appeared unrepresented at the hearing. Although he relied upon his written submissions, the only ground addressed by him orally was that the Tribunal was biased. For that reason, it is convenient to deal with that ground first and then to deal with the other grounds that appear in the amended application and written submissions.
Background and claims
First, it is necessary to set out the background matters including the claims upon which the applicant’s application for a protection visa was based, and the reasons for which the Tribunal rejected those claims.
The applicant claimed that he was involved with the Bangladesh Nationalist Party (BNP) through its student wing, the Jatiyatabadi Chhatra Dal (JCD). He said that he was assaulted and severely injured in 2008 by “goons” from the Chhatra League[1] as a result of this involvement. In December 2008, the applicant left to work as a waiter in Dubai to escape further harm. The applicant returned to Bangladesh in November 2011 but left for Dubai again due to threats by the “goons”. He returned again in August 2013 to visit his sick mother for a short period, returning to Dubai in September 2013. The applicant obtained employment on a cruise ship in February 2015 and arrived in Australia on this cruise ship in March 2015.
[1] Student wing of the Bangladesh Awami League.
In support of his visa application the applicant relied upon a number of references. This included references from officeholders of the JCD, a document appearing to be a prescription for medication and country information concerning political violence in Bangladesh.
The delegate of the Minister found that the applicant was not a credible witness and that the documents relied upon by him were not genuine. The delegate did not accept that the applicant was a member of the BNP but found that even if he were, he would only be a “rank and file member with no profile” sufficient to attract the level of claimed persecution.
The applicant applied to the Tribunal for review of the delegate’s decision on 4 November 2015. In addition to the claims already made, the applicant claimed before the Tribunal that he feared persecution at the hands of local law enforcement because of his status and political profile. The applicant also provided the Tribunal with a number of further statements purporting to be from officers of the JCD and BNP, as well as a number of photographs of the applicant at meetings.
The applicant was invited to, and attended a hearing on 1 February 2016. As well as taking evidence from the applicant, the Tribunal, at the applicant’s request, obtained evidence by telephone from a number of people including the applicant’s brother. It will be necessary to return in more detail to some aspects of the hearing in due course.
After the hearing the applicant’s adviser submitted additional documents, including:
a)Further written submissions;
b)a timeline of the studies undertaken by the applicant;
c)a statutory declaration by the applicant; and
d)a further medical prescription.
The Tribunal made its decision on 16 May 2016 affirming the delegate’s decision.
Tribunal’s decision
The Tribunal found that there were a number of problems with the applicant’s evidence, including his evidence about the following:
a)when he started college in 2008: [53];
b)the office which he claimed to have held in the JCD: [54];
c)the claim that he had been attacked in September 2008 and the people responsible for that attack: [55]; and
d)the fact that he returned to Bangladesh in 2011 in spite of his claim that his persecutors had come to his family home looking for him and asking for his whereabouts: [57].
The Tribunal also found difficulties with documentary evidence relied upon by the applicant to corroborate his claims: [58].
The Tribunal gave greater weight to the problems that it had with the applicant’s own evidence than the documents he produced in support of his claims and the oral evidence given by his witnesses. In light of that evidence, the Tribunal did not accept that the applicant ever held senior office in the JCD or that he was injured at a rally in 2008. The Tribunal did accept that the applicant may have had some limited involvement in the JCD or the BNP; however it did not accept that that involvement was the reason he left Bangladesh or that the applicant had been threatened by members of the opposing party.
The Tribunal did not accept that:
(i)people had gone looking for the applicant at his family home when he was overseas;
(ii)there were any false allegations against him;
(iii)the applicant could only stay in his home for one night because people wanted to kill him; or
(iv)there could be another attack on him and it was not safe for him to remain in Bangladesh.
The Tribunal found that the applicant returned to Bangladesh in 2011 and 2013 to see his family. While it accepted that the applicant’s mother had medical problems as indicated by the document produced by the applicant, the Tribunal did not accept the extent of those problems as given by the applicant in his own evidence. The Tribunal did not accept that the applicant’s brother had been attacked by people, assaulted or detained by political opponents or arrested by the police.
The Tribunal accepted that, since his arrival in Australia, the applicant had been involved in the BNP Australia branch and accepted that news of his involvement in Australia had reached Bangladesh. However, it found that if the applicant returned to Bangladesh he would continue his low-level involvement in the BNP and its affiliated organisations. In light of a report from the Department of Foreign Affairs and Trade (“DFAT”), the Tribunal found there was little to no risk of him coming to any persecution for that reason in Bangladesh.
For those reasons, the Tribunal found that there was no real chance that the applicant would be persecuted by the police, security forces or the government of Bangladesh for any real or imputed political opinion in support of the BNP or his membership of the BNP or any affiliated organisations.
On the basis of the same factual conclusions, the Tribunal was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Bangladesh, there was a real risk that he would be killed or otherwise suffer significant harm.
For those reasons the Tribunal was not satisfied that the applicant met the criteria for the grant of a protection visa and affirmed the decision of the delegate.
Consideration
First issue: bias
As I have observed, the applicant’s principal submission was that the Tribunal’s decision was affected by bias. The ground in the amended application asserted a reasonable apprehension of bias, whereas the applicant’s written and oral submissions asserted actual bias.
The applicant’s written submissions were:
…
In section “Conclusion” of the Tribunal’s decision it is clearly evident that the tribunal was rather interested to discredit the applicant’s claim than to have a proper and fair look into the reason of his ‘well-founded fear’. (Please refer to the attached hearing transcript P–18, para–35 where major part was spent on just to know the applicant’s educational chronology, mother’s medical diagnosis and other irrelevant issues). The tribunal was desperate to damage the applicant’s credibility by unreasonably pursuing him on the aforementioned issue which was one of the information and or part of the information for which the Tribunal alleged the applicant as an incredible [sic] witness and have affirmed the primary decision. (Please refer to the attached Tribunal hearing transcript, page # 24, para # 15[2] and further onto page # 25. It is noticeable how unfriendly and pre-occupied the Tribunal was, the tone and the manner of the tribunal was not professional. The Tribunal did not follow s.258D of the Migration Act in this regard when checking on the identity of the witness. In fact that was the witness’s phone number and the witness was sitting next to the person who picked up the phone at the first place but did not dare to hand over the phone to the key witness due to the terrifying tone of the tribunal. In Bangladeshi perspective people usually get nervous when they deal with a foreigner. The Tribunal did not take those issues in consideration. At some stage the applicant has lost confidence in himself by the Tribunal’s harsh wordings and had to beg to the Tribunal for another chance to phone his brother.)
…
(Emphasis in original)
[2] The references to paragraphs in the transcript are in fact references to line numbers.
The applicant’s oral submissions largely repeated this submission. In addition, the applicant asserted that bias was apparent from the fact that the Tribunal relied upon the prescription which the Member said only a chemist could read. Further, in light of the difference in age shown on that document, the Tribunal disbelieved the whole certificate and did not give the applicant a chance to get a new certificate.
The transcript extracts relied upon by the applicant are as follows:
Member[3]: As I say, that’s not what the medical certificate says. The medical certificate also says your mother is 98 years old.
[3] Transcript p.18.38.
…
Member[4]: Thank you. Thank you very much. Okay. … do next is take evidence from your witnesses overseas. … Hello. Is that [applicant’s brother]? Hello, can you hear us, Mr – can you hear us?
Interpreter: He is repeating the question. Do you – are you [applicant’s brother]?
Member:Well, I want to know if you’re [applicant’s brother]?
Interpreter: Who are you?
Member:Yes, well, until I know who is calling I can’t…
Interpreter: I want to know who it – what is your name?
Member: I can’t tell you that until you tell me your name.
Interpreter: Is that so? Why you cannot tell your name? What is your problem?
Member:Well, it’s the protocol we have to follow. You – I’ve been told you’re expecting this call. It’s in relation to your brother.
[4] Transcript p.24.15-24.38.
Interpreter: Is that so?
Member[5]: Are you expecting a call in relation to your brother who is in Australia?
[5] Transcript pp.24.40-25.35.
Interpreter: No. Sorry, but my name is [R]. My roommate’s name is [applicant’s brother].
Member:I want to speak to [applicant’s brother], please.
Interpreter: I have his number. You can take his number from me. I am in the guard room. He is on the line.
Member:Well, I’m afraid I can’t take the number from you. This is the number his brother has given me.
Interpreter: You – you can call in this number but this is not his number. You can take his number from me.
Member:Okay. Well, if it’s not his number thank you very much for your time and I’m going to hang up the phone now. [Applicant], can you explain that?
Applicant:Sorry,… the number because I am confident that my brother number what I present that is my brother and he is handling the phone and he know that he expect the call.
Member:Well, I called the number that you gave me, [applicant].
Applicant:Can I see the number if you don’t mind.
Member:This is the number that you filled in on the form.
Applicant: Yes. It’s [number], sir.
Member:Yes. Well, that’s the number I called and we just got a man called [R] who says he is your brother’s roommate and he can give us another number for your brother but that’s not your brother’s number. You heard what he said.
Applicant: Yes, I heard but…
Member:Yes.
Applicant:… sir that is my brother number. [Number].
Member:Yes. Well, that’s the number I called, [applicant].… I got.
Interpreter[6]: But on this number I call and I talk my brother every day and yesterday night I talk to him.
Member:Well, given that you say he was expecting the call and that we didn’t – not only did we call that number but we didn’t get him. We got his roommate, [R].
Interpreter: Can I request the member, please, can you call a second time.
Member[7]: No, I can’t call a second time. I’m just going to get [R] again. You heard what he said. Your brother is on the line. I don’t know what that means. I don’t know where your brother works. I will try your other person in Italy. You’ve given two numbers for him. Is there any preference as to which number we should call?
[6] Transcript p.25.37-25.45.
[7] Transcript p.26.1-26.5.
…
The Tribunal then called the telephone number given to it by the applicant. The first telephone call was unsuccessful but the witness was contacted on the second attempt. The Tribunal also took evidence from another of the applicant’s witnesses. After that, the Tribunal outlined to the applicant some of its concerns in respect of his application and gave him the opportunity to address those concerns. The Tribunal then asked the applicant’s agent whether there was anything that had not been covered[8]. The agent expressed concern that the applicant’s brother had not been able to be contacted. It appears that the applicant was given an opportunity to leave the hearing room in order to obtain the correct number for his brother[9] and, upon his return, the Tribunal called the applicant’s brother and took evidence from him[10].
[8] Transcript p.32.36.
[9] Transcript p.33.40.
[10] Transcript pp.33.46–35.46.
The applicant also argued that the Tribunal revealed its bias by not allowing him time to prove when he had commenced college and by relying on the delegate’s decision.
In order to establish a reasonable apprehension of bias, the applicant must show that a fair-minded lay observer with knowledge of the material objective facts, might entertain a reasonable apprehension that the Tribunal might not bring an impartial and unprejudiced mind to the resolution of the question in issue: Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28, [27]. An allegation of apprehended bias must be “distinctly made and clearly proved”: Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507, 531; [2001] HCA 17 at [69], (“Jia”) (Gleeson CJ and Gummow J).
The allegation of actual bias appears to have been focused upon prejudgment. The state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented: Jia at [72].
Contrary to the applicant’s submission, nothing in the material supports the conclusion that the Tribunal’s decision was affected by bias, either apprehended or actual.
The portion of the transcript relied on by the applicant reveals that the Tribunal acceded to a request to obtain evidence from overseas witnesses. The initial difficulty was dealt with by the Tribunal courteously and even-handedly. There is no indication that it was “unfriendly and pre-occupied” or determined to undermine the applicant’s credibility. The fact that the Tribunal asked the applicant questions about the documents relied on by him, was simply part of its task of evaluating that material and giving the applicant the opportunity to explain matters that were of concern to the Tribunal.
The Tribunal did not simply rely upon the delegate’s decision. It made its decision based upon its own assessment of the facts and evidence before it: cf ACR15 v Minister for Immigration & Border Protection & Anor (2015) 302 FLR 431; [2015] FCCA 2992 at [26].
Finally, the suggestion in the applicant’s written submission (see [22] above) that the overseas witnesses were overborne by the Tribunal’s demeanour is not supported by any evidence.
The applicant has not established any of the matters required to prove an appearance of, or actual bias. This ground is rejected.
For the sake of completeness, I note that the suggestion in the applicant’s written submissions that the Tribunal failed to follow the procedure in s.258D of the Migration Act 1958 (Cth) is misconceived. Section 258D(1) provides that the Migration Regulations 1994 (Cth) may prescribe the manner in which an identification test is to be carried out on a person under ss.40, 46, 166, 170, 175, 188 and 192. None of those provisions relates to overseas witnesses giving evidence in support of an application for review of a delegate’s decision to refuse to grant a visa.
Second issue: procedural fairness
The applicant’s arguments in respect of procedural fairness were broad ranging but not well developed. They can be assembled into two categories although on one view, these categories overlap: first, allegations of breach of particular provisions of the Act; and secondly, broader allegations that the applicant was not given an opportunity to properly present his case.
The first provision of the Act said to have been breached was s.423A. That section provides:
How the Tribunal is to deal with new claims or evidence
(1)This section applies if, in relation to an application for review of an RRT–reviewable decision (the primary decision) in relation to a protection visa, the applicant:
(a)raises a claim that was not raised in the application before the primary decision was made; or
(b)presents evidence in the application that was not presented in the application before the primary decision was made.
(2)In making a decision on the application, the Tribunal is to draw an inference unfavourable to the credibility of the claim or evidence if the Tribunal is satisfied that the applicant does not have a reasonable explanation why the claim was not raised, or the evidence was not presented, before the primary decision was made.
(Emphasis in original)
Assuming that this provision applied to the applicant[11], it is not at all clear how a breach of this provision might constitute a denial of procedural fairness or even adversely affect an applicant on review. In any event, it is clear that the Tribunal did draw adverse inferences from the fact that the applicant raised evidence before it that he had not raised in the application before the primary decision maker: see for example [54] and [55] of the Tribunal’s reasons.
[11] Section 423A was inserted by operation of the Migration Amendment (Protection and Other Measures) Act2015 (Cth), No.35 of 2015: s.3, Sch.1, Pt 2, Item 14.
The second provision said to have been breached by the Tribunal was s.430(1) of the Act. That section makes provision for the preparation by the Tribunal of a statement of reasons and the content of that statement. As that statement must be prepared “(w)here the Tribunal makes its decision on a review” it must be complied with at the end of the process of review. For that reason, the failure to comply with that, does not affect the applicant’s opportunity to present evidence. That is not to say, that the statement of reasons cannot reveal that such an opportunity has not been afforded, but only that the preparation of the reasons ordinarily stands outside the processes during which the applicant is to be afforded such opportunity.
The third provision said to have been breached by the Tribunal is s.424A of the Act. That section relevantly requires the Tribunal to give the applicant clear particulars of any information that it considers would be the reason, or a part of the reason, for affirming the decision that is under review.
The applicant argued that the Tribunal breached s.424A by failing to give him particulars in writing of the following:
a)country information contained in reports from DFAT;
b)inconsistencies in the applicant’s claims;
c)an extract from the delegate’s decision;
d)the error in his mother’s age, the chronology of this education and relocation options.
The Tribunal was not required by s.424A of the Act to provide the applicant with particulars of any of these matters.
The country information referred to was not specifically about the applicant or another person. It was information about a class of persons of which the applicant or another person was a member. For that reason it fell within sub-s.424A(3)(a) and was excluded from s.424A(1).
Inconsistencies in evidence given by the applicant are not “information” for the purposes of s.424A(1): SZBYR v Minister for Immigration & Citizenship (2007) 81 ALJR 1190; [2007] HCA 26; [18].
There was no extract from the delegate’s decision which appears to have been considered by the Tribunal at any stage, to be the reason, or part of the reason, for its decision. While the Tribunal summarised what had occurred at the interview with the delegate[12], nothing in that undermined the applicant’s claims in the way required for information to fall within s.424A of the Act. Further, even if it were, I am satisfied that the applicant sent the Tribunal a copy of the delegate’s decision for the purposes of the review[13] and so sub-s.424A(3)(b) operated to exclude any obligation under s.424A(1): Minister for Immigration & Citizenship v Chamnam You [2008] FCA 241.
[12] Tribunal’s reasons at [10] – [15].
[13] See Exhibit A, p.97, “Application for Review”, Pt.G, fourth box in question 18.
All of the information concerning the applicant’s mother’s age and chronology of the applicant’s education was provided by the applicant to the Tribunal and/or as part of the process that led to the decision under review: see sub-ss.424A(3)(b) and (ba). For that reason, those matters did not give rise to any obligation under s.424A(1) of the Act.
Finally, even if the issue of relocation had arisen (which it did not), it was not “information” within the meaning of s.424A(1) of the Act. “Information” refers to knowledge of a fact conveyed by some document, material or other evidence, rather than to issues that might arise upon a particular claim to be owed protection obligations and so to satisfy the criteria for a protection visa.
There was no breach of s.424A(1) of the Act. This ground is rejected.
The second category of denial of procedural fairness relied upon by the applicant was, generally stated, a denial of an opportunity to present a case. This category potentially overlaps with the first category in that the allegations could also be classified as a breach of s.425 of the Act. That provision requires the Tribunal to invite the applicant to give evidence and present arguments relating to the issues arising in relation to the decision under review.
Here, the applicant asserts that the Tribunal failed to:
a)raise the issue as to whether the documents produced by him were fraudulent;
b)give him an opportunity post hearing to give evidence and make submissions; and
c)failed to ensure that he understood the question posed by the definition of a refugee in the Refugees Convention.[14]
[14] The Convention Relating to the Status of Refugees, 1951 as amended by the Protocol Relating to the Status of Refugees, 1967.
The applicant was well aware of the possibility that the Tribunal might not accept either his credibility or the genuineness of the documents relied upon by him. First, the delegate found that the applicant was not credible and that his documents were not genuine[15]. Secondly, during the hearing the Tribunal made it abundantly clear that it had difficulties with his evidence including the documentary evidence relied upon by the applicant[16]. The applicant was asked questions about these issues and given the opportunity to address the Tribunal’s concerns both in his evidence and in submissions by himself and by his migration agent, who also attended the hearing. In those circumstances, there is no basis for the contention that the applicant was denied the opportunity to address the issues about his documents and any other concerns held by the Tribunal about his evidence.
[15] See Exhibit A, pp.90–91.
[16] See for example, Transcript p.30.20.
Further, the definition of a “refugee” was a matter which was obvious. The questions posed in the application form for a protection visa completed by the applicant addressed each of the issues that arise under that definition[17]. In any event, the applicant clearly addressed those issues in his statement of refugee claim and each of the written submissions submitted on his behalf by his adviser. Further, the issues arising under the definition of “refugee” were addressed in the delegate’s claim and were explained by the Tribunal at the beginning of the hearing conducted by it. This argument has no merit.
[17] See Exhibit A, pp.21-23.
In his oral submissions the applicant added that the Tribunal had not explained or raised questions relating to the criterion in sub-s.36(2)(aa) of the Act, the complementary protection criterion. That is not true. First, the Tribunal did explain that criterion[18]. Secondly, the applicant only ever sought to satisfy the complementary protection criterion by virtue of the same facts upon which he relied to satisfy the refugee criterion in sub-s.36(2)(a) of the Act. It was the applicant’s evidence in respect of those facts and claims, that the Tribunal spent most of the hearing examining. In doing so, it was dealing with both the refugee criterion and the complementary protection criterion.
[18] Transcript p.3.7-14.
There was no denial of procedural fairness or a breach of s.425 of the Act. This ground is rejected.
Third issue: error of law
There are two errors of law asserted: first, that the Tribunal failed to apply the subjective and objective test in the definition of a refugee; and secondly, that the Tribunal simply used a template of the law relating to the Refugees Convention but “failed to show in its reasoning how the concept was in fact applied to the claims made by the applicant and evidence given by the applicant in support of his claim”. Neither error is apparent in the reasons of the Tribunal.
It is well-established that there are four key elements to the definition of “refugee” in Art.1A(2) of the Refugees Convention: Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559; [1997] HCA 22 at [35] (“Guo”). One is that the applicant must fear persecution. That includes what is often referred to as the subjective element; that is, that the applicant must actually have a fear of persecution. Another element is that that fear must be “well-founded”. That element is referred to as the objective element in the definition. In order to satisfy the definition of refugee, each of these elements must be met. Thus, where the Tribunal did not accept that there was any “well-founded fear of persecution” an applicant does not meet the definition of “refugee” and so does not satisfy the refugee criterion for the grant of a protection visa. In those circumstances, it is not necessary for the Tribunal to go on to consider any of the other elements of the definition.
Here, the Tribunal was not satisfied that the applicant had a “well-founded fear of persecution”. It was not required to go on to consider whether there was a subjective fear. For that reason, there was no error of law in the Tribunal’s failure to do so.
The Tribunal attached a summary of the relevant law to its reasons for decision: see [70] – [81]. This, as the applicant notes in his written submissions, appears to be a template of the usual recital of the law relating to the Refugees Convention. There are some risks attached to the use of templates in reasons prepared by administrative decision makers: see for example SZRBA v Minister for Immigration & Border Protection (2014) 314 ALR 146; [2014] FCAFC 81; Minister for Immigration & Citizenship v SZQHH (2012) 200 FCR 223; [2012] FCAFC 45. However, generally speaking, there is no error that necessarily arises from the use of templates. Here, contrary to the suggestion by the applicant, the Tribunal clearly addresses the issues of law arising in respect of the criteria for the grant of a protection visa. In particular, it may be noted that the Tribunal’s decision was based upon two conclusions: first, that the applicant had no well-founded fear of persecution in Bangladesh; and secondly, that there was no real risk that the applicant would suffer significant harm upon return to Bangladesh. Those two findings disclosed a proper understanding of the criteria in sub-ss.36(2)(a) and (aa) of the Act.
This ground is rejected.
Remaining issues
There are four remaining issues raised by the applicant’s amended application and written submissions that do not need any detailed consideration.
The first is the failure to consider additional documents and the relocation issue. The additional documents referred to are the documents provided to the Tribunal along with written submissions submitted by the applicant’s agent. There was no failure to consider any of these documents. The Tribunal referred to these documents in its written reasons, addressed shortcomings in some of them, but was ultimately persuaded to reject the applicant’s claims on the basis of the difficulties in his own evidence: [60] and [66].
Secondly, the applicant says that the Tribunal failed to give him the benefit of the doubt. It is not entirely clear what this means. If it is intended to suggest that the Tribunal should have accepted the applicant’s claims then it is an assertion that goes no higher than an attack on the merits of the Tribunal’s decision. If, on the other hand, it is intended to be an assertion that the Tribunal should have asked “what if I am wrong?” (see Guo and Minister for Immigration & Multicultural Affairs v Rajalingam (1999) 93 FCR 220; [1999] FCA 719), then it must fail on the facts. The Tribunal did not express any doubt in its conclusions about the relevant facts such that, as part of the application of the definition of refugee, it had to determine the application on the basis that it might be wrong.
The third issue raised is that there was no evidence upon which the Tribunal could base its credibility findings. The Tribunal is not obliged to have evidence which contradicts the applicant’s claims before it can reject those claims. It is required to act according to reason. The Tribunal did so in this case. As I have observed, the Tribunal found a number of inconsistencies and implausibility in the applicant’s evidence and arrived at its decision on the basis of those matters. The Tribunal’s conclusion on credibility was not something it simply plucked out of the air or arrived at without any rational basis.
Finally, the applicant contends that the Tribunal took into account irrelevant considerations and failed to take into account relevant considerations. There are no particulars of this contention and, having considered the Tribunal’s reasons and the material before it, I cannot ascertain any basis for the contention.
Conclusion
There is no jurisdictional error in the Tribunal’s decision. The application is dismissed.
I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of Judge Smith
Date: 7 April 2017
Clause 15(4) in Sch.1 to that Act provides that s.423A as amended by Sch.1, Pt.2, applies to an application for a protection visa made on or after the commencement of Pt.1 of this Schedule. Part 1 of Sch.1 commenced on 14 April 2015. The applicant applied for his protection visa on 15 April 2015.
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