BLS16 v Minister for Immigration
[2018] FCCA 2384
•31 August 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BLS16 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2384 |
| Catchwords: MIGRATION – Migration Act 1958 (Cth) – application for Protection visa – claim that decision of Administrative Appeals Tribunal was affected by jurisdictional error due to bias, using inconsistencies in the evidence of the applicant during the visa assessment process and that the applicant was harassed by the Administrative Appeals Tribunal member at the Administrative Appeals Tribunal hearing – no jurisdictional error established – Administrative Appeals Tribunal decision not affected by any form of bias – Administrative Appeals Tribunal was empowered to consider all of the evidence before it – no evidence of any harassment by the Administrative Appeals Tribunal member or of bias – application for judicial review dismissed. |
| Legislation: Evidence Act 1995 (Cth), s.43 Migration Act 1958 (Cth), ss.36, 424 Migration Regulations 1994 (Cth) |
| Cases cited: AAJ17 v Minister for Immigration and Border Protection [2018] FCA 205 AQF17 v Minister for Immigration and Border Protection [2018] FCA 966 AWA15 v Minister for Immigration [2018] FCA 604 Michael Wilson & Partners Ltd v Nicholls & Ors (2011) 244 CLR 427 Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 Minister for Immigration and Citizenship v Li & Anor (2013) 249 CLR 332 Re Refugee Review Tribunal & Anor; Ex parte Aala (2000) 204 CLR 82 Re Refugee Tribunal and Another; Ex parte H and Another (2001) 179 ALR 425 South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16 Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 SZUSH v Minister for Immigration and Border Protection [2016] HCATrans 112 |
| Applicant: | BLS16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1507 of 2016 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 19 September 2017 |
| Delivered at: | Sydney |
| Delivered on: | 31 August 2018 |
REPRESENTATION
| The Applicant appeared in person. |
| Counsel for the First Respondent: | Ms C. Saunders |
| Solicitors for the First Respondent: | DLA Piper |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
The Application filed in this Court on 15 June 2016 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1507 of 2016
| BLS16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant in this proceeding is a male citizen of Bangladesh aged 35 years, having been born on 1 December 1982.
By Application filed in this Court on 15 June 2016, he seeks to quash and have re-determined a decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 17 May 2016 which affirmed the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 10 December 2014 refusing to grant to him a Protection (Class XA) visa (Protection visa).
The Applicant arrived in Australia using his Bangladeshi passport on 21 April 2014 on a one month Business Visitor (Class FA) (Subclass 600) visa issued at the Australian High Commission in Bangladesh. He had graduated with a degree of Bachelor of Science in 2006 from the University of Dhaka and a degree of Master of Science from the same University in 2008. Up until shortly before he came to Australia the Applicant had been employed as a quality assurance manager in a garment business.
The Applicant lodged a Protection visa application on 20 May 2014 and was granted a Bridging visa in association with that application.
Claims for Protection
In response to questions 43 to 48 of the Applicant’s Protection visa application form, the Applicant made the following claims:
a)he was involved in politics with the Bangladesh Nationalist Party (BNP) during his student life and up to his last day in Bangladesh;
b)in the lead up to the 5 January 2014 elections in Bangladesh he played a leading role in advocating for a traditional election procedure via protests against the ruling party, the Bangladesh Awami League (BAL);
c)he was involved in a political procession that was advocating for an election procedure during a caretaker government on 29 December 2013. The procession was attacked by police which resulted in an injury to the Applicant, requiring medical attention at a hospital;
d)he was targeted by agents of the ruling party in his workplace and at his home from November 2012 to January 2014;
e)two of his friends involved in the political affairs of the BNP were victims of silent killings;
f)after the election on 5 January 2014 he was attacked by agents of the BAL and required to pay 50,000 Taka to guarantee his safety while living in Bangladesh and that if he did not provide the money he would also be the victim of a silent killing;
g)he reported the assault and threats to the police and attempted to file proceedings in Court but his Court application was not accepted and he was unsuccessful in achieving any resolution or protection;
h)he feared that he would be a victim of kidnapping, silent killing, or be required to pay a debt to the ruling party of 50,000 Taka to save his life should he return to Bangladesh;
i)he fears that groups of people such as the members of the ruling party, terrorists who are sheltered by the ruling party and their agents will harm him;
j)the police will not be able to offer him suitable protection should he return to Bangladesh and as a result he fears that he will endure further physical and mental attacks;
k)he is unable to move anywhere else in Bangladesh as he will easily be tracked down by his assailants; and
l)none of the authorities in Bangladesh could or would protect him if he went back.
Relevant Criteria and Law Applicable to Protection Visa Applications
A convenient summary of the relevant grounds and criteria for the grant of a Protection visa can be found in the judgment of Charlesworth J in AWA15 v Minister for Immigration [2018] FCA 604 at [5]–[7] as follows:
[5] The Minister is to grant a visa if satisfied that the visa applicant satisfies the relevant criteria. If the Minister is not so satisfied, he must refuse to grant the visa: s 65(1) of the Act. For the appellant to qualify for the grant of a protection visa it was necessary for the Minister to be satisfied that (among other things) the appellant fulfilled either the criterion in s 36(2)(a) of the Act (Refugee Criterion) or the criterion in s 36(2)(aa) of the Act (Complementary Protection Criterion).
[6]The Refugee Criterion requires that the Minister be satisfied that the visa applicant is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention, as amended by the Refugees Protocol, namely a person who:
... owing to 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, is 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 as a result of such events, is unable or, owing to such fear, is unwilling to return to it.
[7]Relevantly, the Complementary Protection Criterion requires that the visa applicant be a non-citizen in Australia 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; ....
Decision of Delegate
The Applicant was invited to an interview to take place with the Delegate on 10 December 2014, but he did not attend. Accordingly the Delegate, having found that all reasonable steps had been taken to give the Applicant an opportunity to substantiate his claims, recorded in her Decision Record that she was unable to test the Applicant’s assertions and therefore unable to be satisfied as to the veracity of his claims and was not satisfied that the Applicant was a person to whom Australia had protection obligations under s.36 of the Migration Act 1958 (Cth) (the Act) and cl.866.221 of Sch.2 to the Migration Regulations 1994 (Cth) (the Regulations). Accordingly, the Delegate refused to grant a Protection visa to him.
Decision of Tribunal
The Applicant applied to the Tribunal on 22 December 2014 for merits review of the Delegate’s decision.
On 3 May 2016 the Applicant appeared before the Tribunal to give evidence and present arguments with the assistance of an interpreter in the Bengali and English languages.
At [8] – [33] of its Decision Record the Tribunal reviewed the evidence given by the Applicant at the hearing in response to its questioning.
From [8] – [17] the Tribunal recorded what it considered to be basic inconsistencies and discrepancies in the chronology of a number of claimed events of which the Applicant gave evidence to the Tribunal.
At [18] – [20] of its Decision Record the Tribunal recorded its refusal to accept the Applicant’s claims that he would “get big threats from other parties and be easily killed” because he was a “central leader” of the BNP and so moved to different places in Bangladesh to avoid such threats and harm, but at the same time claiming that he took a prominent position in a BNP rally in 2013 where he could have easily come to the attention of the same people he said he feared.
From [21] – [23] of its Decision Record the Tribunal considered as unsatisfactory the Applicant’s evidence that whilst he travelled to India for a few days in January 2014 he made no attempt to stay in India and did not think to make any enquiries about whether or not he could stay in India, notwithstanding that at that time he claimed to be in fear of his life from the BAL.
At [24] – [26] the Tribunal recorded its concerns that notwithstanding the Applicant’s claims to have been heavily involved in political activities for the BNP as a student over a period of some 6 years, he never even enquired about or discussed with his own father what party his father voted for and supported.
From [27] – [29] the Tribunal expressed its concern with the claims and evidence given by the Applicant at the Tribunal hearing that had not been mentioned in his Protection visa application form.
At [30] of its Decision Record the Tribunal recorded its finding that the Applicant was not a witness a truth and that the account of events on which his protection claims had been based was false. The Tribunal stated that it “disbelieves the applicant’s claims that he supported, belonged to and undertook activities for the BNP in Bangladesh” and “the applicant’s claims about suffering harm from the BAL in the form of threats, demands to pay money or provide goods, being assaulted, being abducted and having to go into hiding in fear of that Group”.
At [31] of its Decision Record the Tribunal recorded that it had taken into consideration letters from the BNP and a collection of photographs which had been included in his Protection visa application but recorded that they did not overcome the concern which the Tribunal held about the Applicant’s credibility.
At [32] – [34] of its Decision Record the Tribunal confirmed its view that the Applicant was not a witness of truth and that there was no credible evidence before the Tribunal that he had suffered harm in Bangladesh or that anyone in Bangladesh still sought to harm him.
Accordingly, the Tribunal found that the Applicant had not met the criteria provided for by s.36 of the Act and affirmed the decision of the Delegate not to grant a Protection visa to him.
Grounds of Attack on Tribunal Decision in this Court
The Grounds relied upon by the Applicant were verbatim as follows:
1.Inconsistent evidence about harm from the Awami League after 2008:
In the interview, I was asked the same question in several times. From the beginning, I was nervous and at the time of interview because of the same question repeatedly- I was lost and my brain was just flash out. I believe that it's a kind of mental harassment and it is against the law. Harassment would never be the way of true seeking and it would be way of misguiding. So, the decision was concluded just based on the disorganized statement of harassed man.
2.The applicant's willingness to undertake political activities while living in hiding:
I had the political ambition as well I was used to like the politics of BNP. In end of 2013, I was strongly in believe that the national election with one party is not going to held without participation of opposition. That's why I took risk though I had fear. Usually the opposition members are used to hide in tough time and come out in public opposition programs and rallies and participate and protest. The decision maker ignore this matter without knowing the political culture and country history of Bangladesh.
3.Evidence about travel to India:
India is not safe country to hide for Bangladeshi people. This ruling party of Bangladesh is backed by India from international diplomatic zones. Moreover both country have agreement to exchange the wanted people. Whereas the decision maker was trying compel me to accept as my fault for not asking protection India which country is most unsafe for Bangladeshi wanted people.
4.Evidence about discussing politics with father:
Yes, my father also support BNP and he always vote for BNP. But I am the only one son who is living in abroad and there is very few people to look after my father. I wasn't sure that if I disclose my father's political opinion, he will have any difficulties or not? From that fear, I didn't want to disclose his political opinion. Moreover, my file can't be assessed based on the political opinion of my father.
5.Evidence in the Protection Visa form:
Already I had mentioned that I had lodged the application within very short time and so it wasn't detailed. Moreover, as of my knowledge as per law I have complete right to add evidence or to cut off while the application is in processing. For adding information in later or for not adding in primary application, I should not be decided to refuse.
6.Conclusion on credibility and assessment of risk of suffering serious harm:
I already have discussion to my said boss to be witness of true for me and he promise me that he will be the witness. But without providing me the opportunity to prove with witness and of having the risk of serious harm, the decision had made.
It is clear like crystal that the decision was made based on the pre-decided bad faith.
Consideration
Ground 1
This Ground asserts that the Applicant was subject to “mental harassment” at the Tribunal hearing, apparently because of repeated questioning from the Tribunal member at the hearing.
However, there is not a skerrick of evidence which supports this Ground. It is clear from the Decision Record of the Tribunal that the Applicant must have been reasonably extensively questioned at the Tribunal hearing by the Tribunal member. However, that is the Tribunal’s job and it did not have the advantage in this case of a Decision Record from the Delegate recording oral evidence of the Applicant at an interview with the Delegate. The Tribunal is an inquisitorial decision-maker which is empowered under s.424 of the Act to “get any information that it considers relevant”. Where credibility is an issue the person conducting inquisitorial proceedings will necessarily have to test the evidence presented, often vigorously, and ensure that the person who will be affected by the decision is accorded procedural fairness by being plainly confronted with matters which bear adversely on his or her credit: see Re Refugee Tribunal and Another; Ex parte H and Another (2001) 179 ALR 425 at 435 [30] per Gleeson CJ, Gaudron and Gummow JJ. There is no evidence that the Tribunal engaged in hostile or dismissive questioning or that the Applicant was overborne or intimidated by the Tribunal member. Nor is there any evidence that the Applicant was not able to meaningfully participate in the hearing before the Tribunal.
Further, whilst the Applicant had the benefit at the Tribunal hearing of the assistance of an interpreter in the Bengali and English languages, he had stated in his Protection visa application that he could speak, read and write the English language and at [1] of its Decision Record the Tribunal recorded as follows:
[1] …The Tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages. At the beginning of the hearing the applicant said that he would communicate with the Tribunal in English but use the assistance of the interpreter when he thought that was necessary. The hearing proceeded on that basis and, at different times, the applicant made use of the interpreter as he saw fit.
After the Applicant had received the Decision Record of the Tribunal he sent an email to the Tribunal on 14 June 2016 where he made no complaint of not being able to meaningfully participate in the Tribunal hearing or of any harassment by the Tribunal. All that he said verbatim on this issue was as follows:
…unfortunately I was nervous in the interview and couldn’t explain with my full satisfaction. Moreover, your accent was a little bit harder for me to understand and because of my nervousness, I was saying same thing repeatedly and my brain and memory were suddenly flash out.
Finally, at the first directions hearing in this Court on 8 July 2016 when procedural orders were made to get the matter ready for hearing and it was set down for final hearing, I specifically advised the Applicant that, because of the nature of his Grounds, he ought to obtain and tender to the Court a copy of the transcript of the Tribunal hearing and that the orders then made provided him with that opportunity and put the onus and responsibility of getting a copy of the transcript on him. The response was that the Applicant had already done that. This answer to my suggestion was entirely consistent with the Applicant’s request of the Tribunal by email of 30 May 2016 to give him a copy of the CD comprising the audio hearing of the Tribunal hearing, to which the Tribunal responded by letter to him dated 31 May 2016 attaching an audio CD recording of the Tribunal hearing held on 3 May 2016.
Notwithstanding all this, no transcript of the Tribunal hearing was tendered before me by the Applicant.
Ground 1 fails to establish that the decision of the Tribunal is affected by jurisdictional error.
Ground 2
This Ground seeks to argue with factual findings of the Tribunal and invoke a merits review which is not available in this Court. At [18] – [20] of its Decision Record the Tribunal considered the Applicant’s claims that as a “central leader” in the BNP he continued his political activities, notwithstanding that he was at the same time in hiding, and there is nothing in the Tribunal’s consideration of the Applicant’s claim in this regard which establishes that the Tribunal’s decision is affected by jurisdictional error.
Ground 3
This issue was considered by the Tribunal at [21] – [22] of its Decision Record and this Ground also seeks to invoke merits review of the Tribunal’s findings and fails to establish jurisdictional error.
Ground 4
This Ground also argues with the findings of the Tribunal and fails to establish jurisdictional error.
Ground 5
This Ground attacks the Tribunal’s use of a previous omission of a claim from the Applicant’s Protection visa application form which was orally made afterwards at the Tribunal hearing. This omission caused the Tribunal concern and there was nothing legally unreasonable in that. It is entirely conventional and common for the purposes of criminal and civil litigation for there to be consideration and comparison of any prior inconsistent statements or evidence of a party (or witness) in the course of the assessment of the trustworthiness and veracity of that party (e.g. see s.43 of the Evidence Act 1995 (Cth)). If that party has earlier said one thing and then subsequently says another thing about the same subject matter, this may, if not minor or trivial, throw suspicion on the accuracy or credibility of that party’s evidence. Likewise, if that party makes a claim later which he had not made earlier but which might have been expected to have been made at that earlier point of time. In this context Nettle J said in SZUSH v Minister for Immigration and Border Protection [2016] HCATrans 112 at 10 as follows:
…. it is not the law that the credit and reliability of an applicant’s evidence is irrelevant in the determination of a review of an application for protection visa. Where the establishment of facts is dependent on oral evidence, the evidence must be assessed and weighed in light of its apparent credibility and reliability and findings must be made according to that assessment (Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 (“MIMIA”) at 21-22 [42] – [44] per Gummow and Hayne JJ.)
No doubt, as SZUSH contends, refugee cases involve special considerations where credibility is in issue (MIMIA (2004) 207 ALR 12 at 33 [73(7)] per Kirby J, in dissent.) As Kirby J observed in MIMIA, “There is no necessary correlation between inconsistency and credibility in such cases”. It is necessary to keep in mind that there may be a host of ethnic, cultural, lingual, physical, behavioural and psychological considerations peculiar to refugees which, depending upon the circumstances of a given case, may explain inconsistencies that would otherwise be thought to reveal dishonesty. But, that said, it remains a process of evaluation for the tribunal of fact to determine what, if any, weight is to be placed on an applicant’s version of events; and where, as here, there were many reasons to disbelieve an applicant’s version of events it is not in error to reject it.
In this connection see also the judgment of Farrell J in AQF17 v Minister for Immigration and Border Protection [2018] FCA 966 [45] – [47].
Furthermore, in AAJ17 v Minister for Immigration and Border Protection [2018] FCA 205, the Tribunal in its decision had pointed to a number of inconsistencies in important aspects of the applicant’s claims as made at various times and between her accounts and those given by her husband at an earlier Tribunal hearing. The Tribunal also considered that the applicant’s answers were evasive and vague when those inconsistencies were put to it. In that context, Perry J said at [24]:
[24]The existence of such inconsistencies in important aspects of the appellant’s claims, and the failure to explain those inconsistencies in a way that the Tribunal considered was satisfactory, provide a logical and rational basis for the Tribunal’s adverse credibility findings. In this regard, it is well established that the Tribunal is not required to accept, uncritically, any and all claims made by an applicant: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451–452 (Beaumont J); Guo at 596 (Kirby J). Nor does the Tribunal have to possess rebutting evidence before holding that a particular assertion is not established: see eg Selvadurai v Minister for Immigration & Ethnic Affairs (1994) 34 ALD 347 at [7] (Heerey J).
This Ground again argues with factual findings of the Tribunal and fails to establish jurisdictional error.
Ground 6
This Ground appears to suggest that the Tribunal did not provide the Applicant with an opportunity to support his case by having “his boss” be a witness at the Tribunal hearing.
However, there is no evidence that the Tribunal precluded the Applicant’s previous employer from giving evidence. There is no suggestion in the evidence that the Applicant ever suggested to the Tribunal that he wanted to call his previous employer at the hearing. The only reference to the employer of the Applicant in the Decision Record of the Tribunal is at [33] where it recorded as follows:
[33] To the Tribunal, the applicant maintained that the Awami League also asked his employer for money and the employer also came to Australia with the applicant. The applicant said that the employer was still in Australia but did not know if he had applied for protection. He did not appear at the hearing as a witness.
In his post Tribunal decision email of 14 June 2016 the Applicant had merely stated:
f) Conclusion on credibility and assessment of risk of suffering serious harm:
I already had requested to my earlier boss to be witness of true for me and he promise me that he will be the witness.
In other words, it was a matter for the Applicant to call at the Tribunal hearing such evidence as he thought would advance his case. There is no evidence that the Tribunal refused to take and accept evidence from the Applicant’s employer.
Finally, insofar as this Ground is to be taken as suggesting that the decision of the Tribunal is affected by actual bias in the nature of pre-judgment it also fails to establish jurisdictional error.
Actual or apprehended bias are matters which go to procedural fairness and the denial of procedural fairness on the part of an administrative decision-maker, such as the Tribunal, may result in jurisdictional error justifying an order that the decision be set aside: Re Refugee Review Tribunal & Anor; Ex parte Aala (2000) 204 CLR 82 at 91 [17] per Gaudron and Gummow JJ; Minister for Immigration and Citizenship v Li & Anor (2013) 249 CLR 332 at 357 [48] per Hayne, Kiefel and Bell JJ.
Actual bias was described by Gleeson CJ and Gummow J in Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 532 [72] as follows:
[72]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.
A finding of actual bias is a grave matter: Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 at 127 per Burchett J. As the New South Wales Court of Appeal said in South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16 at [97]:
[97]The appellant alleges that the Arbitrator displayed actual, not apprehended, bias. A party asserting actual bias on the part of a decision maker carries a heavy onus. The allegation must be “distinctly made and clearly proved.” Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 at [69] per Gleeson CJ and Gummow J and [127] per Kirby J; SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 at [36] per von Doussa J. A finding of actual bias should not be made lightly; cogent evidence is needed: Sun Zhan Qui v Minister for Immigration and Ethnic Affairs [1977] FCA 1488; (1997) 81 FCR 71 at 123 per Wilcox J; a finding of bias is a grave matter: ibid (at 127) per Burchett J.
The test for actual bias in the form of prejudgement requires an assessment of the state of mind of the judge in question: Michael Wilson & Partners Ltd v Nicholls & Ors (2011) 244 CLR 427 at 437 – 438 [33].
In my view there is again not a skerrick of evidence that the Tribunal member in this case was actually biased or had in bad faith pre-judged or pre-decided the review application and this Ground fails also to establish jurisdictional error. For completeness I note also that there is nothing with a tendency to indicate that there could be any reasonable apprehension of bias in connection with the decision of the Tribunal.
Conclusion
In my view the Applicant has failed to establish that the decision of the Tribunal is affected by jurisdictional error and his Application filed in this Court is to be dismissed.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Date: 31 August 2018
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