BLT19 v Minister for Home Affairs

[2019] FCCA 3055

FEDERAL CIRCUIT COURT OF AUSTRALIA

BLT19 v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 3055

Catchwords:
MIGRATION – Application for safe haven enterprise visa – adverse credibility findings – inconsistencies on applicant’s claims – no jurisdictional error demonstrated – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H(1)(a), 5J(1), 36(2)(a), 36(2)(aa), 36(2A), 36(2B), 424A, 438, 476(1), 499

Cases cited:

Minister for Immigration and Citizenship v SZIAI [2009] 259ALR 429

Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2001) 74 ALJR 405

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

Applicant: BLT19

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 345 of 2019

Judgment of: Judge Egan

Hearing date: 21 October 2019

Date of Last Submission: 21 October 2019

Delivered at: Brisbane

Delivered on: 21 October 2019

REPRESENTATION

Applicant: In person

Solicitors for the First Respondent: Ms L. Helsdon

ORDERS

1. The name of the First Respondent be amended to read ‘Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs’.

2. The application for review filed on 8 April 2019 be dismissed.

3. The Applicant pay the First Respondent’s costs of and incidental to the application for review fixed in the amount of $5,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 345 of 2019

BLT19

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of Bangladesh who arrived in Australia by boat in February 2013. The boat on which the applicant was a passenger was intercepted by Australian authorities on 25 February 2013. The applicant was detained as an unlawful non-citizen, and transported to Darwin.

2. On 7 March 2013 the applicant attended an irregular maritime arrival entry interview with a departmental officer.

3. On 22 April 2016 the applicant applied for a Safe Haven Enterprise Visa (SHEV). The applicant attended an interview with a delegate of the Minister on 28 April 2016. The delegate refused to grant the applicant the SHEV on 9 August 2016.

4. After referral to the Immigration Assessment Authority (the Authority) and the subsequent affirmation by the Authority of the delegate’s decision, the Federal Circuit Court subsequently declared, by consent, that the applicant had not been notified appropriately of the decision made by the delegate, and the Authority’s decision was accordingly quashed.

5. On 5 July 2018 the Department re-notified the applicant of the delegate’s decision, outlining the applicant’s review rights to the Administrative Appeals Tribunal (the Tribunal) at the same time.

6. On 10 July 2018 the Department issued a non-disclosure certificate to the tribunal pursuant to the provisions of s.438 of the Migration Act 1958 (Cth) (the Act).

7. On 12 July 2018 the applicant applied to the Tribunal for review of the delegate’s decision. On 11 August 2018 the applicant provided further supporting material to the Tribunal and on 20 September 2018 further extracts were submitted to the Tribunal.

8. On 11 February 2019 the applicant appeared before the Tribunal with the assistance of an interpreter.

9. On 18 February 2019 the Tribunal wrote to the applicant pursuant to the provisions of s.424A of the Act and invited the applicant to comment on, or respond to, certain information. On 24 February 2019 the applicant provided a submission in response to the s.424A letter.

10. On 18 March 2019 the Tribunal affirmed the decision of the delegate.

11. On 8 April 2019 the applicant filed an originating application seeking judicial review of the decision of the Tribunal dated 18 March 2019 pursuant to the provisions of s.476(1) of the Act.

12. The applicant’s claims for protection were as set out in a written statement dated 22 April 2016, a submission dated 5 May 2016, the s.424A response, orally at the applicant’s entry interview, and during the course of hearings before the delegate and the Tribunal.

13. In summary, the applicant’s claims are as follows:

    a)The applicant and his father were supporters of Jamaat-e-Islami (JEI) who were persecuted by the Awami League (AL). It was said that the applicant’s father had a high profile in JEI. The applicant, though illiterate, said that though he did not have an official position in JEI he assisted it in other ways.

    b)The applicant asserted that he had been threatened and assaulted by members of the AL who tried to force him to join them. Though he reported the assaults to the police, the police did not assist. The applicant said he went into hiding for two years and fled Bangladesh after the last assault allegedly perpetrated upon him in 2013.

    c)In 2009 the applicant asserted that police had come to his family home and had charged the applicant with the offence of possessing another person’s passport, thereafter detaining the applicant for four days. It was said by the applicant that a court case ensued which was resolved in April 2014.

    d)In 2015, the applicant asserted that AL members had visited the applicant’s family home after his departure and had destroyed it. The applicant said that he had lost contact with his wife and daughter after that event.

    e)The applicant claimed that he feared returning to Bangladesh because he would be seen as a failed asylum seeker and also because of what was said to be a data breach.

14. The grounds of review as set out in the originating application are as follows:

    “Grounds of application

    1. The Tribunal misconstrued the risk and fear of significant harm as set out in s36(2A) of the Migration Act 1958.

    The Tribunal construed erroneously (and narrowly) the existence of risk to life and fear of significant harm to the applicant upon his returns to Bangladesh.

    2. The AAT decision is unjust and was made without taking into account the full gravity of my circumstances and the consequences of the claim.

    3. The Tribunal did not act according to the law.”

Tribunal’s Consideration of Grounds of Application

1. At [2]-[7] inclusive of its reasons, the Tribunal relevantly set out the protection criteria and complementary protection criteria as set out under the provisions of s.36(2)(a) and s.36(2)(aa) of the Act. It also noted policy guidelines as provided for by Ministerial Direction No. 56 made pursuant to the provisions of s.499 of the Act, as well as relevant country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT).

2. At [8] of its reasons, the Tribunal found that it had concerns about the applicant’s credibility to such an extent that it was justified in concluding that the decision under review should be affirmed. At [9]-[17] inclusive of its reasons, the Tribunal carefully set out the applicant’s evidence as provided to the tribunal. It compared that evidence to the evidence provided by the applicant to the Department. In doing so, the Tribunal highlighted a number of inconsistencies relating to the reasons why the applicant had left Bangladesh ([18] of Tribunal reasons), whether the applicant had been threatened or assaulted by the AL ([90] of the Tribunal reasons), whether the applicant had had any encounter with the police, whether they had repeatedly gone to his home ([20] of Tribunal reasons), whether the applicant had remained living in the family home until his departure, and whether he went into hiding for two years prior to his departure ([21] of Tribunal reasons). The Tribunal put those discrepancies to the applicant in its s.424A letter. [1]

   [1]        Court Book pages 233 – 236 inclusive.

3. In response, the applicant claimed that any inconsistency was due to a misinterpretation made by the interpreter, as recorded at [22] of the reasons of the Tribunal, as well as in [23] of such reasons. The Tribunal was unpersuaded by the applicant’s explanations.

4. At [24] of its reasons, the Tribunal noted that if the applicant had said, at the entry interview, that members of the Awami League had threatened him and that he had then been attacked, he could have also said that at the same time. The applicant did not do so. At [26] of its reasons, the Tribunal rejected responses made by the applicant to the effect that if he had only mentioned his dealing with the police once then he had made a mistake. The Tribunal noted, at [26] of its reasons, that it had closely questioned the applicant concerning his dealings with the police during the course of the Tribunal hearing, finding that the applicant’s evidence that he had only had one encounter with the police was clear.

5. At [27] of its reasons, the Tribunal found that there were serious discrepancies between the applicant’s evidence at the entry interview and his evidence at the Tribunal hearing, the Tribunal finding that the applicant had not provided any satisfactory explanation for such discrepancies. The Tribunal reiterated its lack of preparedness to accept the applicant’s responses as to his inconsistencies in evidence at [29] and [30] of its reasons.

6. At [31]-[36] of its reasons, the Tribunal closely considered the applicant’s claims about the circumstances relating to his having left Bangladesh.

7. At [37] of its reasons, the Tribunal found that it was not persuaded by the applicant’s responses to questions asked by the Tribunal as to why the applicant’s father would not have saved him, given that the applicant, on the applicant’s story, appeared to be in far greater danger than his brother. The applicant’s response that he did not want to leave Bangladesh was found to be unconvincing, as was the explanation that the applicant would have found it hard to arrange transport out of Bangladesh.

8. At [38] of its reasons, the Tribunal found that it did not believe that the applicant had remained in Bangladesh so long after an alleged court case was brought against him, and long after he first went into hiding, because he did not want to leave Bangladesh. The Tribunal found that it was sceptical that the applicant would not have left Bangladesh earlier, had the alleged events truly occurred.

9. At [39] of its reasons, the Tribunal did not accept that in circumstances where the applicant was alleging that the court case had been brought against him by the ruling party, that the applicant would choose to remain in Bangladesh, hoping for a favourable result from the courts.

10. At [40] – [47] of its reasons, the Tribunal closely considered the evidence advanced by the applicant concerning the court case, and the documents submitted to the Tribunal, by the applicant, in support of his claims. The Tribunal found that the applicant was not a witness of truth, and that his claims ought to be disbelieved on the issue as to whether he had been arrested, held in custody, and the subject of a false case. It also found that the applicant ought to be disbelieved on the issue as to whether he had gone into hiding, and also as to whether he was of adverse interest to the police or the AL.

11. At [49] of its reasons, the Tribunal found that the contents of documents submitted by the applicant:

    “[49] … do not overcome the serious inconsistency in the applicant’s evidence about harm he suffered in Bangladesh, and how he responded to that harm.”

12. At [50] of its reasons, the Tribunal referred to country information, which indicated a wide prevalence of document fraud in Bangladesh, concerning official identity documentation, as well as in relation to employment. The Tribunal was entitled to infer that such fraud extended to falsification of documentation issued by police and other related law enforcement agencies.

13. At [51] of its reasons, the Tribunal found that it was not prepared to give any evidentiary weight to the documents submitted by the applicant.

14. At [52] – [54] inclusive of its reasons, the Tribunal analysed the applicant’s claims, which involved him asserting that he was nervous and anxious, and that his memory had suffered accordingly. The Tribunal was not persuaded by the applicant’s explanations. 

15. At [55] of its reasons, the applicant’s claims about his having scars on his body as being evidence of his having been attacked by members of the Awami League were not accepted by the Tribunal, as the applicant was not a person of credit.

16. At [56] of its reasons, the Tribunal did not accept that the applicant supported and undertook activities for JEI, and was therefore found that he was not at risk for that reason.

17. At [57] of its reasons, the Tribunal accepted that the applicant followed Islam, but did not consider that the applicant would suffer harm, for that reason, if returned to Bangladesh. It stated that there was no credible evidence before the Tribunal that the applicant had suffered harm in Bangladesh on religious grounds, and it was noted by the Tribunal that the applicant had made no claim that he was unable to practice his religion in Bangladesh.

18. At [59] of its reasons, the Tribunal found that notwithstanding that there had been a data breach, it did not find that the applicant would suffer harm as a result of such data breach, because of the applicant’s lack of credibility, about him being of adverse interest to the authorities in Bangladesh, as well as on country information grounds.

19. At [64] of its reasons, the Tribunal rejected submissions, as set out in [60] – [63] inclusive of its reasons, to the effect that the applicant would face harm if returned, because he had left Bangladesh illegally, or for the reason that the applicant allegedly belonged to a particular social group of “Returned asylum seekers”. The Tribunal rejected the assertion by the applicant that as a result of the data breach, the Bangladesh government would have identified the applicant as someone who had applied for protection in Australia, and that he would therefore be seen as a traitor to his country.

20. At [65] of its reasons, the Tribunal found that the applicant was not a witness of credit and that, accordingly, the applicant did not meet the relevant refugee criteria as set out under s.5H(1)(a) of the Act. It further did not hold that the applicant had a well-founded fear of persecution within the meaning of that term under s.5J(1) of the Act.

21. At [66] of its reasons, the Tribunal found that for the same reasons as in relation to its protection criteria findings, the applicant was not  owed any obligations under the relevant complimentary protection criteria.

22. At [67]-[68] of its reasons, the Tribunal referred to a non-disclosure certificate that was before it pursuant to the provisions of s.438 of the Act, and recorded that it placed no weight on the material contained in it. The Tribunal noted that it had reached its views about the applicant’s credibility independently of any information covered by the certificate.

23. As to Ground 1 of the application for review, there is nothing on the face of the record to indicate that the Tribunal misconstrued the test for significant harm, as set out in the Act. The Tribunal appropriately set out the considerations relevant to its decision-making process at [6] of its reasons, identifying the provisions of s.36(2A) and s.36(2B) of the Act in particular. It also directly addressed the issue at [66] of its reasons. There is no merit to this ground.

24. As to Ground 2 of the application to review, the ground is without substance. The Tribunal, in close detail, examined all of the claims made by the applicant prior to arriving at its decision. It must be inferred that the Tribunal appropriately took into account the subject matter of those claims. It cannot be said that the Tribunal, when analysing the matters of relevance before it, failed to make an obvious inquiry about a critical fact, as was the subject of consideration by French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ in Minister for Immigration and Citizenship v SZIAI [2009] 259ALR 429 at [25]-[27] where it was said:

    “[25] Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a “duty to inquire”, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction.35 It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case. There are two reasons for that.

    [26] The first reason is that there was nothing on the record to indicate that any further inquiry by the tribunal, directed to the authenticity of the certificates, could have yielded a useful result. There was nothing before the Federal Magistrates Court or the Federal Court to indicate what information might be elicited if the tribunal were to undertake the inquiry which was said to be critical to the validity of its decision. The inquiry suggested was telephone contact with the persons whose mobile telephone numbers were shown on the certificates. But the question whether the certificates contained false statements as to authorship or otherwise would not be able to be determined by calls placed to those telephone numbers. If the respondents to the calls admitted to the tribunal or its officers that the certificates contained false statements, then the grounds for a decision adverse to SZIAI would have been strengthened. If the respondents said that the contents were true, it would have added nothing to the statements effectively conveyed by the certificates themselves. The second reason is that the response made by SZIAI’s solicitors to the tribunal’s letter of 14 January 2008 itself indicated the futility of further inquiry. There was nothing that SZIAI or his solicitors were able to add, beyond a bare denial of what appeared in the National Ameer’s letter. For these reasons there is no factual basis for the conclusion that the failure to inquire constituted a failure to undertake the statutory duty of review or that it was otherwise so unreasonable as to support a finding that the tribunal’s decision was infected by jurisdictional error.

    [27] No issue of procedural fairness otherwise arises. SZIAI was given an opportunity to comment upon the National Ameer’s letter and did so in the limited terms indicated. To invite SZIAI to a further hearing pursuant to s 425 of the Migration Act would have been an empty exercise. There was no such obligation in any event. The National Ameer’s letter was by way of information that the tribunal considered would be a reason, or part of a reason, for affirming the decision under review. It discharged its obligation, pursuant to s 424A of the Migration Act, by giving SZIAI the opportunity to comment on that information. The letter did not raise a new issue in the sense that that term is used in s 425.”

25. The Tribunal was not required to set out each and every part of its decision-making process when arriving at its decision. This ground is without foundation.

26. As to Ground 3, this unparticularised ground is encapsulated within Grounds 1 and 2. The Court has already dealt with such grounds as being without merit and finds also that this ground is without merit.

27. At [68] of its reasons, the Tribunal recorded that the documents provided to it pursuant to the certificate were “concerns expressed by the officer”, noting that such concerns were merely the opinions of that officer which were not substantiated by other supportive evidence. It cannot be suggested, therefore, that the content of the documentation so provided to the Tribunal in any way influenced it when arriving at its decision.

1. The Tribunal made adverse credibility findings against the applicant. A finding on credibility is a function of the primary decision maker par excellence. As was said by McHugh J in Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2001) 74 ALJR 405 at [67]:

   “[67] In addition, the prosecutor alleges that the Tribunal breached s 430(1) by failing to set out reasons for its finding that the prosecutor’s claim that members of PLOTE tried to recruit him were “utterly implausible”. However, this was essentially a finding as to whether the prosecutor should be believed in his claim — a finding on credibility which is the function of the primary decision maker par excellence. If the primary decision maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The Tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence. In any event, the reason for the disbelief is apparent in this case from the use of the word “implausible”. The disbelief arose from the Tribunal’s view that it was inherently unlikely that the events had occurred as alleged.”

2. It cannot be said that no other rational or logical decision maker could not have made the same decision as the Tribunal. As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130] and [135]:

   “[130] In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence.  In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.

   …

   [135] On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent’s claims. There was. The Tribunal did not believe the first respondent’s claim that he had engaged in the “practice of homosexuality” in the UAE and accordingly it was not satisfied that he feared persecution if he returned to Pakistan.”

3. Neither could the decision be considered as legally unreasonable, or one lacking an evident and intelligible justification, as such respective comments were considered by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76] where it was said:

   “[66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion.  That area resides within the bounds of legal reasonableness.  The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power.  Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker.  Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.

   …

   [76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust".  The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power.  Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at.  Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”

4. The applicant has not demonstrated any jurisdictional error on the part of the Tribunal. 

5. The application for review is without merit and is dismissed.

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge Egan

Date:  13 November 2019