Boc17 v Minister for Home Affairs
[2019] FCCA 323
•13 February 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BOC17 v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 323 |
| Catchwords: MIGRATION – Review of decision by Administrative Appeals Tribunal – whether Administrative Appeals Tribunal’s decision affected by jurisdictional error – whether Administrative Appeals Tribunal credibly findings were open to it on the evidence and material before it and for the reasons it gave – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5, 31, 36, 65, 411, 422B, 424A, 424AA, 425, 474, 476 |
| Treaties: Protocol Relating to the Status of Refugees, opened for signature 31 January 1967 (entered into force 4 October 1967). Cases cited: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 |
| Applicant: | BOC17 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1094 of 2017 |
| Judgment of: | Judge Emmett |
| Hearing date: | 13 February 2019 |
| Date of Last Submission: | 13 February 2019 |
| Delivered at: | Sydney |
| Delivered on: | 13 February 2019 |
REPRESENTATION
| Applicant: | Appeared in person with the assistance of an interpreter |
| Counsel for the Respondents: | Mr Greg Johnson |
| Solicitors for the Respondents: | DLA Piper |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1094 of 2017
| BOC17 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
This is an application pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Administrative Appeals Tribunal dated 16 March 2017 (“the Tribunal”), affirming a decision of a delegate of the first respondent made on 19 May 2015 (“the Delegate”) refusing the applicant a Protection (Class XA) visa (“Protection Visa”).
Legislative Framework
Pursuant to s.65(1)(a) of the Act, if satisfied of a number of matters, the first respondent may grant a visa. Section 65(1)(b) of the Act provides that, if the first respondent is not satisfied about those matters, then the Minister must refuse to grant the visa.
Section 31(1) of the Act provides that there are to be prescribed classes of visa. One class of visa is a Protection Visa (reg.2.01 of the Migration Regulations 1994 (Cth) (“the Regulations”) and Schedule 1 to the Regulations).
Section 36(2)(a) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia in respect of whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 36(2)(aa) of the Act provides that:
“(2) A criterion for a protection visa is that the Applicant for the visa is:
(aa) a non-citizen in Australia (other than a citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm.”
Sections 36(2A) and 5 of the Act defines “significant harm.”
Under s.411(1)(c) of the Act, a decision to refuse to grant a protection visa is a decision which may be reviewed by the second respondent.
The requirements of the natural justice hearing rule are exhaustively stated in Division 4 of Part 7 of the Act (s.422B(1) of the Act). Division 4 Part 7 includes ss.424A and 425, which provide that:
“424A Information and invitation given in writing by Tribunal
(1) Subject to subsections (2A) and (3), the Tribunal must:
(a) give to the Applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review.
425 Tribunal must invite Applicant to appear
(1) The Tribunal must invite the Applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.”
Section 424AA of the Act permits the Tribunal to give orally to an applicant clear particulars of any information that the Tribunal considers would be the reason or part of the reason for affirming the decision under review. The Tribunal must ensure that the applicant understands the relevance of the information and the consequences of any information being relied upon. The Tribunal must also invite the applicant to comment on or respond to the information and advise the applicant that the applicant may seek additional time to comment on or respond to the information.
Under s.474(2) of the Act, a decision of the second respondent is a “privative clause decision”. Under s.474(1)(a) of the Act, a privative clause decision is final and conclusive.
However, a purported decision of the second respondent which is affected by jurisdictional error is not a decision which is made under the Act and therefore is not a privative clause decision (see Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476).
Background
The applicant’s claims and the Tribunal’s decision are accurately summarised in the submissions of the first respondent’s counsel as follows:
“BACKGROUND AND CLAIMS
2. The applicant is a citizen of Bangladesh. On 24 October 2014 he applied for a protection visa, claiming to fear harm in Bangladesh due to his support for/membership of/involvement in the Bangladesh Nationalist Party (BNP) and his status as a businessman. In particular, the applicant claimed to have been the organising secretary of the BNP’s ward 18 Kodalia Branch, and the executive member of the local Tangail Thana Branch, and to have been involved in elections for BNP candidates in 1996, 2001, 2008 and 2014. He also claimed to have donated money to the party. The applicant claimed that ‘BAL’, or Awami League, members and thugs extorted businesses for protection, and that the applicant refused to pay. He was harassed by Awami League activists and thugs, and they threatened to kill him. The applicant’s claims were that this was due to both extortion and the applicant’s political involvement.
3. The applicant described two incidents in 2011 and 2013 where he was attacked at his office by Awami League thugs. He claimed that the police refused to act in relation to his report of the second incident. The applicant claimed further that both he and his father were the subject of false cases brought by the Awami League, and that the applicant had been falsely accused of being involved in the terrorist group Jamat e Islami. He claimed that the police were arresting and detaining all political opponents to the Awami League. He claimed that he had been detained in 2014 due to false charges brought by the Awami League and that during this time he was tortured by the police.
4. On 19 May 2015 a delegate of the Minister refused to grant the applicant a visa: CB 81. The applicant applied to the RRT (as it then was) for review of the delegate’s decision.
5. On 1 September 2016 the Tribunal invited the applicant to attend a hearing scheduled for 1 November 2016: CB 118. On 13 October 2016 the applicant’s migration agent emailed the Tribunal and asked that the hearing be rescheduled as the applicant was suffering from depression, anxiety and stress and was unable to attend the hearing. An adjournment of four months was requested: CB 124. The following evidence was provided:
(a) Psychologist’s report dated 12 October 2016 which recorded the applicant’s account that he had recently learned that his father had cancer, that he wanted to visit his father but could not due to a fear of harm in Bangladesh. The applicant reported that these circumstances caused him great distress. The applicant was diagnosed as suffering from moderate/severe anxiety, moderate/severe stress and moderate depression. The report recommended that the AAT hearing be postponed for four months to allow the applicant time to deal with his psychological issues.
(b) Medical reports regarding the applicant’s father’s condition.
6. On 17 October 2016 the Tribunal wrote to the applicant, via his agent and advised that it had decided not to postpone the hearing and that the hearing would proceed as scheduled: CB 134. The agent emailed the Tribunal on 26 October 2016 again requesting that the AAT defer the hearing for four months: CB 136. The following evidence was provided:
(a) Psychologists report: progress report dated 26 October 2016 which repeated the matters set out in the previous report and stating that the applicant had been unable to prepare for his hearing and needed more time to do so.
(b) The AAT wrote to the applicant, via his agent, on 27 October 2016 advising that it had decided not to postpone the hearing and that the hearing would proceed as scheduled.
7. On 1 November 2016 the applicant’s agent emailed the Tribunal and again asked that the hearing be rescheduled: CB 143. The email attached a medical certificate dated 1 November 2016 stating that the applicant is receiving treatment for anxiety, depression and stress, and was not able to attend any interview with the Immigration Department.
8. The applicant attended the hearing on 1 November 2016 (CB 148), but did not respond to questions regarding his claims (see [25] of the Tribunal’s reasons: CB 198). The AAT determined to adjourn the hearing.
9. By letter dated 2 November 2016 the AAT invited the applicant to provide a report from his treating medical practitioner or specialist outlining certain matters such as when the applicant first attended a consultation, the length of the consultation and the basis of any diagnosis, and why the applicant would be unable to attend a hearing before the Tribunal: CB 154.
10. On 17 November 2016 the applicant’s agent provided the following documents (CB 156):
(a) Psychologist’s report dated 15 November 2016. It stated that the applicant had consulted with the psychologist on 12 October and 26 October 2016, and was subsequently referred for treatment on 27 October 2016. Since that referral the applicant had consulted twice, on 2 and 9 November 2016. The report set out the applicant’s diagnoses of anxiety, stress and depression and stated that they were reached through psychological interview. The report expressed the view that the applicant’s conditions made it difficult for him to attend a hearing in the near future, and that he would not be able to give appropriate answers to questions and present cogent arguments. It recommended that the applicant undergo psychological treatment for three to six months.
(b) Psychologist’s report and mental health certificate dated 2 November 2016 setting out the history of consultations to date and the applicant’s diagnoses, as summarised above.
(c) Reports dated 26 and 12 October 2016, as submitted previously.
11. By letter dated 21 November 2016 the applicant was invited to attend a resumed hearing on 30 January 2017: CB 167. By letter dated 6 December 2016 the Tribunal advised that it had rescheduled the hearing at the request of the applicant, and invited the applicant to attend a resumed hearing on 28 February 2017: CB 173.
12. Subsequently the Tribunal advised the applicant by letter dated 16 February 2017 that the hearing was rescheduled to 2 March 2017 due to the member’s availability: CB 177. The applicant attended the hearing on 2 March 2017: CB 179.
13. At the hearing the applicant submitted a psychologist’s report dated 25 February 2017 stating that since being referred the applicant had attended six consultations and repeating the previous diagnoses of anxiety, stress and depression: CB 183. The report expressed the opinion that the applicant’s condition had improved and that he was now able to attend the Tribunal hearing but would require an interpreter.
TRIBUNAL’S DECISION
14. On 16 March 2017, the Tribunal affirmed the decision under review: CB 192.
15. The Tribunal found that the applicant was not a credible witness, that his evidence was ‘highly contradictory and often vague’: [31]; CB 204. It found that despite confirming that all of the information in his application was correct, the applicant’s evidence at the hearing was very different to that in his application: [31]; CB 204.
16. The Tribunal considered the applicant’s mental health concerns, but found that he showed no particular difficulty comprehending the discussion at the hearing on 2 March 2017 and had been able to provide detailed and ready responses regarding his work and family history. The Tribunal did not accept that the applicant’s vague and inconsistent evidence was due to the applicant’s psychological state: [32]; CB 204.
17. The Tribunal did not accept that the applicant held positions in the BNP or that he was politically active with the BNP ([33]; CB 205), or that he had donated money to the BNP ([34]; CB 204), or that he campaigned for or promoted the BNP: [35]; CB 205. The Tribunal did not accept that the applicant had paid money to Awami League members or leaders ([36]; CB 205), or that he had been harassed or threatened by Awami League activists or thugs: [37]; CB 206. It rejected the applicant’s claims regarding two incidents, one in which he was attacked at his office, the other in which Awami League goons kidnapped him and tried to kill him: [38]-[39]; CB 206. It also rejected his claims about false cases brought against him and his father, and did not accept that the RAB detained him or tortured him, or searched his house, or accused him of terrorist activity: [40]-[41]; CB 206-207. The Tribunal rejected a claim advanced at the hearing to have been targeted as a result of renting a building to a madrassa: [42]; CB 207.
18. The Tribunal did not accept that the applicant had problems with the Awami League or the police: [43]; CB 207. It accepted that the applicant and his family may be considered to be wealthy, but did not accept that they had been threatened or harmed because of this and did not accept that they would be harmed in the future on this basis: [44]-[45]; CB 207.”
The applicant was unrepresented before the Court this morning although had the assistance of an interpreter.
The applicant confirmed that he relied on the grounds his originating application, filed on 10 April 2017, as follows:
“1. The Tribunal failed to exercise its jurisdiction by failing to consider all aspects of my claims.
2. The tribunal failed to assess the harm that I may face based on my political opinion”
The applicant also confirmed that he had attended a directions hearing before a registrar of this Court with the assistance of an interpreter and a volunteer legal assistant from Justice Connect on 27 July 2017.
On that occasion, the applicant was given leave to file and serve an amended application, any further evidence and submissions in support of his application. The applicant was also provided with the contact details of legal services providers and translating and interpreting services in documents headed in his own language.
The applicant confirmed this morning that he had no further documents to provide to the Court.
Each of the grounds was interpreted for the applicant, and he was invited to say whatever he wished in support of those grounds and in support of his application generally.
The grounds make bare assertions that do not disclose an error capable of review by this Court. Further, they are not supported by particulars, evidence or written submissions.
At the outset of the hearing, I explained to the applicant that the role of this Court is very different to that of the Tribunal, and that it is not for this Court to reconsider his claims and reach different findings or conclusions. I also explained to the applicant that the only issue before this Court is whether or not the decision of the Tribunal was made according to law. I explained to the applicant that this Court has no power to interfere with the decision of the Tribunal, unless the Court is satisfied that the decision of the Tribunal is affected by a mistake going to its jurisdiction. I further explained to the applicant that disagreement with the findings and conclusions of the Tribunal rarely, by itself, establishes such a mistake.
Ground 1
In relation to Ground 1, I asked the applicant what were the claims that he asserts the Tribunal failed to consider. The applicant responded that when he left Bangladesh, he lost all contact and he could not arrange for paperwork to provide to the Tribunal. The applicant agreed that the Tribunal had dealt with the claims that he made. The applicant said that because he could not recover documents from Bangladesh, it was difficult for the Tribunal to consider his claims beyond what he had told the Tribunal. Ground 1 does not identify a jurisdictional error on the part of the Tribunal.
A fair reading of the Tribunal’s decision record makes clear that the Tribunal first identified the relevant law and summarised accurately the applicant’s claims. The Tribunal then summarised the claims and information provided by the applicant at his interview with the Delegate. The Tribunal subsequently considered the information provided by the applicant to the Tribunal.
The applicant first attended a hearing before the Tribunal on 1 November 2016. The Tribunal found that when the applicant attended that scheduled hearing with his representative, the applicant was able to provide responsive answers to general questions about his background but became silent when asked about his claims for protection. After a short time, the Tribunal stated that it decided to adjourn the hearing in the interests of the applicant to allow him a further opportunity to engage in the hearing.
On 17 November 2016, the applicant’s agent provided further documents, including 2 more reports by the applicant’s psychologist.
By letter dated 21 November 2016, the applicant was invited to attend a resumed hearing on 30 January 2017. By letter dated 6 December 2016, the Tribunal advised that it had rescheduled the hearing at the request of the applicant, and invited the applicant to attend a resumed hearing on 28 February 2017.
Subsequently the Tribunal advised the applicant by letter dated 16 February 2017 that the hearing was rescheduled to 2 March 2017.
The applicant attended the hearing on 2 March 2017.
On that occasion, the Tribunal referred to reports from the applicant’s psychologist which it cited in some detail. The Tribunal then summarised the information provided by the applicant at the hearing on 2 March 2017.
Ultimately, the Tribunal did not find the applicant to be a credible witness. The Tribunal found the applicant’s evidence to be highly contradictory and often vague.
The Tribunal noted that the applicant was seeing a psychologist and receiving treatment for anxiety, stress and depression. The Tribunal noted that the applicant did not suggest that he had difficulties and nor did he appear to have difficulties understanding questions about his claim, although he struggled to give specific and consistent information.
The Tribunal did not accept that the significant inconsistencies that it found to exist in the applicant’s evidence were due to his psychological state. Nor did it accept that the credibility concerns that it had about the applicant’s evidence were due to the applicant’s psychological state.
The Tribunal then summarised various exchanges that it had with the applicant and expressed in some detail the concerns that it had about that evidence.
Ultimately, the Tribunal did not accept that the applicant was an active supporter, member, official, leader or activist with the Bangladesh Nationalist Party; that he had problems with the Awami League leaders or its members; that he suffered threats from unknown people; or, that he had problems with the Rapid Action Battalion in Bangladesh.
The Tribunal did not accept that the applicant or his family had been threatened or attacked because of their wealth in Bangladesh. The Tribunal found that there was no indication that the applicant or his family attracted adverse attention in Bangladesh or were at any risk of harm because of their actual or perceived wealth.
The Tribunal also did not accept that any expectation that the applicant and his family provide financial help to people in need amounts to significant harm.
The Tribunal noted that the applicant stated he had no other problems or fears in Bangladesh. The Tribunal found that none others arose on the evidence before it.
The Tribunal concluded that the applicant did not meet the protection criteria in s.36(2)(a) of the Act or meet the alternative criteria in s.36(2)(aa) of the Act.
It is well established that the Tribunal is not required to accept uncritically any and all claims made by an applicant (see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 per Beaumont J; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596 per Kirby J; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70 per Wilcox J). Nor does the Tribunal have to possess rebutting evidence before holding that a particular assertion was not made out (see Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J).
There is no evidence before this Court of any request made by the applicant to the Tribunal for further time to obtain particular documents or paperwork from Bangladesh, nor is there any suggestion in the decision record that such a request was made.
The applicant had the assistance of a migration agent in his review before the Tribunal.
The applicant was given leave to file and serve further evidence, including any transcript of the hearing, at the directions hearing on 27 July 2017. However, no step was taken by the applicant to rely on any such evidence. In the circumstances, the Court accepts as accurate the Tribunal’s summary of the oral evidence given by the applicant and the exchange that it had with the applicant at the hearing. The Court is entitled to accept the Tribunal’s decision record as accurately reflecting the matters to which it refers as taking place at the hearing in the absence of any evidence to the contrary (NAFF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1).
In the circumstances, the Tribunal’s findings were open to it on the evidence and material before it, and for the reasons it gave, including its adverse credibility findings. The Tribunal’s credibility findings were based on rational grounds and arrived at after considering those factors that were logically probative of the issue of credibility. The Tribunal’s findings were not tainted by any failure to afford procedural fairness; reaching a finding without a logical or probative basis; unreasonableness; and, were not without an intelligible foundation (see ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 at [83] per Griffiths, Perry, Bromwich JJ).
Accordingly, Ground 1 is not made out.
Ground 2
Ground 2 asserts that the Tribunal failed to assess the harm that he may face based on his political opinion. Again, Ground 2 was not supported by particulars, evidence or written submissions.
In support, the applicant said that there had been no change in the government in Bangladesh since he departed; that conditions in Bangladesh were deteriorating; that he would face harm if he became politically active in Bangladesh; and that, his risk of harm was now worse than when he left Bangladesh.
The Tribunal gave comprehensive reasons for its comprehensive rejection of the applicant’s claims that, as stated above, were open to it on the evidence and material before it and for the reasons it gave.
Following the respondent’s submissions, I invited the applicant to say anything further in support of his application. The applicant said that the lack of communication with persons in Bangladesh and the distance meant that he could not get documents and that he had a lot of mental health problems.
As I explained to the applicant, the only issue before this Court was whether or not the decision of the Tribunal was made according to law. Nothing the applicant has said this morning demonstrates any jurisdictional error on the part of the Tribunal, and none is apparent on the face of the Tribunal’s decision record.
Accordingly, Ground 2 is not made out.
Conclusion
A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims being made by the applicant; explored those claims with the applicant at two hearings; and, had regard to the information provided by the applicant, including his psychological reports.
The Tribunal made findings based on the evidence and material before it that were open to it for the reasons it gave. The Tribunal’s decision record makes clear that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law.
In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.
The Tribunal’s decision is not affected by jurisdictional error and is, therefore, a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no power to interfere.
The proceeding before this Court should be dismissed with costs.
I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Judge Emmett
Deputy Associate:
Date: 26 February 2019
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Statutory Construction
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