BOI16 v Minister for Immigration

[2017] FCCA 2011

FEDERAL CIRCUIT COURT OF AUSTRALIA

BOI16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2011

Catchwords:
MIGRATION – Protection visa application – review of decision of Administrative Appeals Tribunal – whether the Tribunal erred in law by following the decision of the delegate rather than drawing its own conclusion – whether the Tribunal erred by failing to correctly identify the applicant’s nationality – whether the Tribunal failed to consider the applicant’s fear of harm as a member of a minority community – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.438

Cases cited:

BEG15 v Minister for Immigration & Border Protection (2016) 315 FLR 196; [2016] FCCA 2778

MFAFZ v Minister for Immigration & Border Protection (2016) 243 FCR 1; [2016] FCA 1081

Applicant: BOI16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1611 of 2016

Judgment of: Judge Smith

Hearing date: 19 July 2017

Date of Last Submission: 19 July 2017

Delivered at: Sydney

Delivered on: 19 July 2017

REPRESENTATION

The applicant appeared in person.

Solicitors for the Respondents: Mr L. Leerdam, DLA Piper Australia

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $7,206.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1611 of 2016

BOI16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Extempore and Revised)

1. The applicant arrived in Australia on 24 November 2013 and made an application for a protection visa on 23 December 2013.  That application was refused by the delegate of the Minister on 10 December 2014.The applicant then applied to what was then the Refugee Review Tribunal[1] (Tribunal) for review of that decision.  After a hearing conducted by the Tribunal, the Tribunal made its decision on 31 May 2016 to affirm the delegate’s decision.  The applicant now seeks judicial review of the Tribunal’s decision.

   [1] As it was then known. On 1 July 2015 it became the Administrative Appeals Tribunal: Tribunals Amalgamation Act 2015 (Cth).

Tribunal’s decision

1. In order to understand the issues that arise, it is important to deal first with the claims made by the applicant in support of his visa application, and the way in which the Tribunal dealt with those claims.  The applicant’s claims were set out in [9] of the Tribunal’s reasons, which I set out in full below (without alteration): 

   9.In his protection visa application the Applicant claims, in summary:

   ●He was born in Banshkali, Chittagong Bangladesh, in 1983.  He gives his ethnicity as Theravadama (sic) and his religion as Buddhist. He received a total of twelve years of formal education in Bangladesh, ending in April 2003, but was unable to obtain his Higher School Certificate as he was suffering mental distress. In parallel with this schooling he received a religious education and was ordained as a Buddhist monk in 1997. He gained higher ordination in 2003 He was unemployed after leaving school, living in a Buddhist monastery in Banskhali from 2001 to November 2004, in a Buddhist temple in New Delhi from August 2005 to April 2007 and in a Buddhist samaty (association) in Pargana, West Bengal, from June 2007 to November 2013.

   ●Minorities in Bangladesh, including Buddhists, are very disadvantaged by the attitude of the Muslim majority, who do not want them there.  There are 53 Buddhist families in his village, most of whom are illiterate and severely disadvantaged. They are employed by influential Bangladesh nationalist Party (BNP) and Jamaat-i-Islami figures as day labourers on their farms and are often not paid. His father, who operated a pharmacy in the local town, was a religious and social activists in the area and would stand up for the rights of the Buddhist community when there were disputes. He was threatened by activists of the BNP and Jamaat-i-Islami for these activities and they harassed him and other family members. He was attacked and badly beaten in June 1998 but refused to give up his work on behalf of the community.

   ●After becoming a monk he began teaching Buddhism to his followers. He became a target of a Jaber Ullah, a BNP leader and his gang. In April 2000 he organized a meditation program for all the youths of the village in a club. He was told by the gang to cease these activities but refused to do so. On 3 May 2000 he was beaten by a group on his way to school. In December 2000 he was sleeping in his temple when members of the gang forced their way in and tried to enter his room. They left after making threats to him. He moved to another temple for safety. After entering Banskhali Degree College he joined the Buddhist Student Welfare Association and in November 2001 he became its Organising Secretary. He helped Buddhist students become aware of their rights and escape discrimination. He became a member of the Banskhali Buddha Association in July 2003. In November 2004 he had to run from his temple when a group broke in searching for him.

   ●He left Banskhali and went to Chittagong where he lived in a Buddhist Vihar (monastery)  After a few weeks his guru advised him t leave Bangladesh and arranged for him to travel, illegally, to India. He stayed with Buddhists in various locations in India and in 2006 paid a broker to obtain an Indian passport.

   ●In April 2007 he used the passport to return to Bangladesh to visit his father who had been hospitalised after being attacked by Islamic fundamentalists. He was unable to visit his home area and stayed in various temples, returning to India in May 2007.

   ●His oldest sister was kidnaped in July 2005 and forcibly converted to Islam. She married a Muslim man. His second sister was captured and raped by a Muslim gang in March 2013. His father’s pharmacy was burned down in August 2013 and his father died of a heart attack the same month.

   ●Islamic terrorists are active and powerful in Bangladesh and they continue to carry out barbarous attacks on minorities. In September 2012 they destroyed 26 Buddhist temples and about 100 houses belonging to Buddhists. Two Buddhists died and a senior Buddhist monk was hospitalised after suffering a heart attack.

   ●He could not lead a normal life as a Buddhist if he were to return to Bangladesh. He is completely helpless and unsafe in his country. His life would not be safe and he would have no future.

2. The delegate based her decision on the finding that the applicant was not, in fact, a citizen of Bangladesh as he claimed, but rather a citizen of India.  One of the bases for that finding was the result of a document examination conducted by the Department of Immigration on the Indian passport, pursuant to which the applicant entered Australia.  The examination concluded that the passport was genuine.  The applicant claimed that it was genuine but obtained through fraudulent means. 

3. In light of the delegate’s finding, the issue of the applicant’s identity was a live one before the Tribunal.  The Tribunal considered that this was a threshold issue, but resolved the issue in favour of the applicant, concluding that he was a Bangladeshi citizen and had travelled to India in 2005 and subsequently “obtained an Indian passport which is genuine, in the sense that it was issued by the relevant Indian authority, but which was granted on the basis of fraud”. 

4. The Tribunal then went on to consider the applicant’s claims as they related to Bangladesh.  It had strong doubts about the credibility of those claims, and gave a number of reasons for those doubts.  First, it found that it was unusual, in the least, that the applicant was unable to produce any substantiation, beyond some photographs and a report to the police about his sister’s disappearance after what he claimed to have been a lengthy history of serious abuse. 

5. Secondly, the Tribunal found that the photographs submitted by the applicant at the Tribunal hearing purporting to show the destruction of Buddhist temples and houses in the applicant’s village were copied from images appearing on the internet.  On that basis, the Tribunal found that the photographs did not, as alleged by the applicant, demonstrate that his father’s shop had been burned by Muslims in August 2013.

6. Thirdly, the Tribunal found that the country information considered by it did not support the claims that Barua Buddhists had been targeted for harm by the country’s Muslim majority, whether or not they belonged to the Bangladeshi National Party (BNP) or Jamaat-i-Islami.  The Tribunal summarised its conclusions at [28], which I set out below:

   Taking these matters together I accept that one of the Applicant’s sisters was reported missing in Chittagong City in March 2013 and that this lends support to his claim that she was abducted an draped by unknown persons. However, given that the incident occurred when she was living in a large city fifty or sixty kilometres away from her village, I am not satisfied there is any reason to believe that the culprits were connected with Jaber Ullah or the other Muslims in the Applicant’s immediate area. Having considered his responses at the hearing I am not satisfied as to the credibility of his claim that another of his sisters was abducted, forcibly converted to Islam and married off to a Muslim man without any further contact with his family. Nor am I satisfied as to the credibility of his claims that he himself suffered harm in Bangladesh. I am not satisfied that he was targeted by local leaders of the BNP or Jamaat-i-Islami, or by anyone else. I am not satisfied that he was harassed, threatened or beaten or that Muslims broke into Buddhist monasteries where he was living in order to find and harm him. I am not satisfied that he fled into hiding in Chittagong and later into India for such a reason or that his travel from India to Australia in November 2013 was prompted by a fear that he might not be able to remain in India and could be returned to Bangladesh where he would be harmed. I am not satisfied, finally, that in 2015 money was demanded of his mother by a local BNP figure, Jaber Ullah, with the threat that the Applicant would be killed if he returned to Bangladesh.

7. For those reasons, the Tribunal was not satisfied that there was a real chance that the applicant would suffer serious harm because of his Buddhist religion or political opinion reputed to him.  The Tribunal was not satisfied that the applicant met the criteria for the grant of a protection visa, and so affirmed the decision of the delegate.

8. In his application, the applicant sets out three grounds of review.  The first is that the Tribunal “erred in law in that it blindly followed the decision of the AAT rather than making its own conclusion”.  In the particulars to the ground, the applicant states:

   Applicant claimed that he was from Bangladesh and the delegate concluded that he/she suspected Applicant was from India. Rather than making its own inquiries AAT followed the conclusion of the Delegate.

9. The factual basis of that ground is incorrect.  As I have observed, the Tribunal, in fact, found that the applicant was a citizen of Bangladesh.  Far from simply copying the delegate’s decision, the Tribunal considered the matter for itself and came to its own, different conclusion.  The first ground is rejected. 

10. The second ground is that the Tribunal erred in that it did not follow procedures to identify the nationality of the applicant.  In the particulars to the ground, the Tribunal was said not to have followed procedures “such as a linguistic test to ascertain the origin of the Applicant”.  In circumstances where, as already noted, the Tribunal in fact, accepted that the applicant was Bangladeshi, there is no error in the failure by the Tribunal to conduct tests which would, according to the applicant, have established the same fact.  Those tests would have made no difference to the Tribunal’s decision.  For that reason, it was not unreasonable for the Tribunal to fail to undertake any tests.  The second ground is rejected.

11. The third ground is that the Tribunal erred in law by failing to consider whether the applicant feared harm as a member of the minority Buddhist community from Islamic leaders or parties.  However, the Tribunal clearly considered that claim.  The Tribunal summarised the applicant’s claims at [18] of its reasons, but also dealt with it in particular terms at [26], [27], and [29] of its reasons.  In light of the fact that the Tribunal so obviously did deal with the applicant’s claim arising from his religion, it is apparent that what the ground is intended to take issue with, is that the Tribunal did not accept the applicant’s claims.  That however, does not amount to an allegation of jurisdictional error.  For that reason, the ground does not establish any basis upon which the Court would grant constitutional relief.  Third ground must be rejected.

12. In his written submissions, the applicant raises a number of other matters.  The first of these is that the Tribunal did not consider the photos provided by the applicant.  That claim too, is inconsistent with [25] of the Tribunal’s reasons, where it deals expressly with those photographs.  The applicant also says that the Tribunal did not consider the fact that Buddhists in Bangladesh have problems from the Muslims who do not want them there.  The Tribunal did consider the possibility of harm being suffered by the applicant at the hands of Muslims as a consequence of him being Buddhist: see in particular [26], [27] and [29].

13. Next, the applicant says that the Tribunal member failed to consider a particular social group, namely minority Buddhist community.  That is simply another way of putting the claim based upon the applicant’s religion, which as I have observed, has been dealt with by the Tribunal.  For those reasons, none of the grounds raised by the applicant have any merit. 

14. The Minister raises an issue concerning the existence of a certificate purported to have been given under s.438 of the Migration Act 1958 (Cth) (Act). 

    Tribunal's discretion in relation to disclosure of certain information etc.

    (1)  This section applies to a document or information if:

    (a)  the Minister has certified, in writing, that the disclosure of any matter contained in the document, or the disclosure of the information, would be contrary to the public interest for any reason specified in the certificate (other than a reason set out in paragraph 437(a) or (b)) that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matter contained in the document, or the information, should not be disclosed; or

    (b)  the document, the matter contained in the document, or the information was given to the Minister, or to an officer of the Department, in confidence.

    (2)  If, in compliance with a requirement of or under this Act, the Secretary gives to the Tribunal a document or information to which this section applies, the Secretary:

    (a)  must notify the Tribunal in writing that this section applies in relation to the document or information; and

    (b)  may give the Tribunal any written advice that the Secretary thinks relevant about the significance of the document or information.

    (3)  If the Tribunal is given a document or information and is notified that this section applies in relation to it, the Tribunal:

    (a)  may, for the purpose of the exercise of its powers, have regard to any matter contained in the document, or to the information; and

(b)  may, if the Tribunal thinks it appropriate to do so having regard to any advice given by the Secretary under subsection (2), disclose any matter contained in the document, or the information, to the applicant.

(4)  If the Tribunal discloses any matter to the applicant, under subsection (3), the Tribunal must give a direction under section 440 in relation to the information.

The certificate states:

I certify that paragraph 438(1)(a) of the Migration Act 1958 applies to the information in the folios 63 - 68 of file number CLF2013/312745, because it contains information relating to internal business of the department.

…

1. The Minister correctly concedes that in light of that paragraph the certificate was not properly issued pursuant to s.438 of the Act. He submits that in those circumstances the decision of Beach J in –MZAFZv Minister for Immigration & Border Protection (2016) 243 FCR1; [2016] FCA 1081 (MZAFZ) may have some application.  I have considered MFAFZ in the decision of BEG15 & Minister for Immigration & Border Protection (2016) 315 FLR 196; [2016] FCCA 2778. I need not repeat what I said there. However, I find that the conclusions arrived at by Beach J in MZAFZ do not arise here.

2. First, in my view, there is nothing to suggest that the Tribunal acted in any way upon the certificate and, secondly, nothing in the documents to which the certificate related, could possibly have had any impact upon the decision made by the Tribunal.  Those documents are contained in exhibit JEP1 in the proceedings.  The first document appears to be a printout of a record of file notes made in connection with the applicant’s business visa pursuant to which he arrived in Australia.  I can see nothing in that document which in any way could have affected the Tribunal’s assessment of the applicant’s protection visa claims. Put another way, if the applicant had the opportunity to consider those documents, nothing he could have said about them would have changed the actual Tribunal’s decision.

3. The second document in JEP1 is a confirmation of a standard onsite interpreting request.  This document records a request for an interpreter in the Bengali language to be made available at an interview that was conducted by the delegate of the Minister for the purposes of considering the visa application.  Once again, there is nothing in this document that could have had any impact upon the Tribunal’s decision. 

4. The third document is a minute of the Department of Immigration and Border Protection dated 14 February 2014 constituting a document examination report. This was a document that, as I have noted above, was referred to in the delegate’s decision.  For that reason, the applicant was aware of not only its existence but its content; namely, that the Indian passport upon which the applicant arrived in Australia was a legitimately manufactured document.  In other words, as the delegate said, it was genuine.  That was consistent with the applicant’s claim.  Further, and perhaps more importantly, it was consistent with the Tribunal’s finding which accepted that the applicant, although a citizen of Bangladesh, went to India in 2005 and obtained a genuine passport by fraudulent means.

5. This document was not adverse to the applicant at all, and given that it was consistent with the Tribunal’s findings in any event, it could not have made any difference to the Tribunal’s decision.  For those reasons, the decision of Beach J in MZAFZ is distinguishable from the circumstances of this case. No jurisdictional error is revealed. In the alternative, if there were jurisdictional error because the certificate was not properly issued under s.438 of the Act and the Tribunal followed some procedure that was unlawful, then I would refuse to grant relief in the exercise of my discretion because, as I have said, the documents could have made no difference.

Conclusion

1. For those reasons I will dismiss the application.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Smith

Associate: 

Date:       22 August 2017