BPN16 v Minister for Immigration
[2019] FCCA 916
•9 April 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BPN16 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 916 |
| Catchwords: MIGRATION – Application to review decision of Administrative Appeals Tribunal – whether Tribunal denied the Applicant procedural fairness, erred in fact finding or in consideration of untranslated documents or otherwise fell into jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.36, 415, 424A, 425, 476 |
| Cases cited: ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; (2016) 250 FCR 109 Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2003) 230 FCR 431 Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1 Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429 Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 |
Applicant: | BPN16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1665 of 2016 |
| Judgment of: | Judge Barnes |
| Hearing date: | 20 September 2018 |
| Delivered at: | Sydney |
| Delivered on: | 9 April 2019 |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the Respondents: | Ms Coleman |
| Solicitors for the Respondents: | Mills Oakley |
ORDERS
The application is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1665 of 2016
| BPN16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for review of a decision of the Administrative Appeals Tribunal (the Tribunal) dated 12 June 2016, affirming a decision of a delegate of the First Respondent to refuse to grant the Applicant a protection visa.
The Applicant, a citizen of Bangladesh, arrived in Australia in February 2013. In May 2013 he lodged an application for a protection visa. He attended an interview with a delegate of the First Respondent. His application was refused by the delegate on 9 September 2014.
On 16 September 2014, the Applicant sought review of the delegate’s decision by the former Refugee Review Tribunal (now the Administrative Appeals Tribunal).
On 18 February 2016 the Applicant attended a Tribunal hearing. The only evidence before the court of what occurred in the hearing is the Tribunal’s account in its reasons and the material in the Courtbook.
The Applicant claimed to fear harm in Bangladesh from members or supporters of the Awami League (AL) for reason of his support and activities for the opposition Bangladesh Nationalist Party (BNP) and his family’s Indian origin.
The Applicant claimed that his parents were born in India and arrived in Bangladesh in or around 1971. He worked at his father’s fish farm in Bangladesh from about the age of 12 until his departure from Bangladesh in 2013. He claimed that for three years prior to his departure from Bangladesh he was a supporter of the BNP, attended their meetings and participated in election campaigns.
In a statement in support of his protection visa application the Applicant claimed that on 4 January 2013 about 8 members of the AL came to his father’s place of business and asked him for money and fish. He claimed he refused to give them anything, that they threatened to kill him and that he pushed one of the men and then started running away. He claimed that the men then threw an explosive device towards him, but that as he was some distance away he was not hurt.
The Applicant also claimed that on 27 January 2013 about 10-12 people (who he believed were associated with the AL) came to the family home late at night, shouting and calling him by name and asking him to come outside. The Applicant claimed that when he failed to emerge, the men threw two explosive devices towards the house, that they poured petrol over and burnt his dog and shouted that if they found him they would “burn [him] as a dog”.
The Applicant also suggested that the family’s Indian origins may be part of the reason they were asked for money. His agent made further claims about the relevance of the family’s Indian origin.
In his statement, the Applicant claimed that because his father had reported this incident to the police he feared he would be killed by “the terrorist” people who attacked him. It appears that in the departmental interview the Applicant told the delegate that his father had lodged complaints with the police after both incidents, but no action was taken because the AL controlled the police.
In addition, the Applicant claimed to the delegate that in June 2014 his family was “extorted” by AL members who took two carloads of fish away and threatened to kill his father if he complained to the police.
The Applicant provided documents to the Department, including untranslated Bengali documents which were described as documents in relation to the family’s move to Bangladesh from India and police reports.
Despite concerns about aspects of the Applicant’s claims, the delegate accepted that two attacks had occurred in January 2013, that the Applicant would be recognised as a BNP supporter in his local area and that he faced a real and substantial chance of suffering serious harm from local AL supporters. However the delegate found that it would be reasonable for the Applicant to relocate within Bangladesh.
The Applicant sought review by the Tribunal. In pre-hearing submissions to the Tribunal his migration agent addressed country information, violence in Bangladesh, state protection and the reasonableness of relocation.
The Applicant’s lengthy post-hearing submissions to the Tribunal addressed other aspects of the delegate’s decision and elaborated on his claims. Particular issue was taken with the delegate’s view that the Applicant could reasonably relocate within Bangladesh.
The Tribunal Decision
On 12 June 2016, the Tribunal affirmed the delegate’s decision. It summarised the Applicant’s claims in his protection visa application to support the BNP and to fear “terrorist people” from the AL who attacked him in January 2013.
It stated at paragraph 12:
The applicant has provided to the Department a copy of his Bangladeshi Birth Certificate and a barely legible Power of Attorney, in relation to some land, dated 6 May 1965. He has also provided documents in Bengali which he claimed were in relation to his family’s move from India to Bangladesh and Police Reports but as he has not provided any English translations of these documents the Tribunal is unable to place any weigh on these documents.
The Tribunal also summarised new claims made at the departmental interview and referred to pre- and post-hearing submissions and evidence from the Applicant.
The Tribunal found that the Applicant was not a witness of truth and that he had fabricated his material claims. In making these findings the Tribunal had regard to various concerns about the Applicant’s credibility and the veracity of his claims. In particular, it found there were inconsistencies between his oral and written evidence, and between his evidence to the Department and to the Tribunal, that certain aspects of his evidence were “vague and lacking in detail” and that other aspects were implausible. The Tribunal also had regard to the fact that the Applicant had made “several new claims throughout the process”.
The Tribunal detailed various inconsistencies in the Applicant’s evidence in his application, at the departmental interview, at the Tribunal hearing and in post-hearing submissions, about the nature and extent of his role in the BNP, which it described. It addressed his explanation at the hearing, but also had regard to the fact that in
post-hearing submissions his account of what he did as a supporter of the BNP was very different from his previous evidence.
The Tribunal was of the view that the Applicant’s evidence at the hearing had been vague and limited and lacked detail about what he did as a supporter of the BNP for three years. Further, while the Applicant had made oral claims to the effect that “if there was something they wanted him to do he would join them”, that he joined in marches or demonstrations and went to meetings, in post-hearing written submissions he had made very detailed and specific claims about his activities as an active supporter and organiser of the BNP.
The Tribunal found it implausible that as a supporter of the BNP for 3 years the Applicant would have been involved in the “making decisions” he referred to in his post-hearing submission, such as “identifying the purpose and agenda for meetings, identifying leaders who would attend the meetings, setting budgets for the meetings, organizing facilities for the meetings, liaising with the Police to organize security for the meetings” and that he would have been given the “responsibility to main harmony during the meetings and ensure that they occurred in a peaceful manner” (at paragraph 25).
It continued (at paragraph 26):
The Tribunal would expect that these types of decisions would have been made by local leaders, office holders and senior members of the BNP and carried out by members of the BNP and not left to young, inexperienced supporters in the party. The applicant’s failure to mention these details previously, despite being asked specific questions about this issue and being given plenty of opportunities to respond, and the implausibility of these claims raise serious concerns about the credibility of these claims.
The Tribunal also considered the Applicant’s evidence to the delegate and to it in support of his claim that he had participated in election campaigns in support of the BNP. It had regard to his limited evidence at the hearing and to the fact that while asked a number of questions about what he did to support the BNP he made no mention of being involved in any election campaigns and when the Tribunal raised this he responded that he joined the BNP after the elections.
However in his post-hearing submission he claimed he worked for the BNP in the national election in 2008, despite the fact that, as the Tribunal observed, he was not a supporter or member of the BNP in 2008. He was not in Bangladesh at the time of the 2014 national election.
It also found that his claim that he had walked to places some 100 to 150km from his home to attend election campaigns was implausible.
The Tribunal also had regard to the Applicant’s poor knowledge of the BNP, including its policies, the BNP flag and its colours. It considered the Applicant’s explanation that he was not well-educated or knowledgeable and did not think he should know the colour of the BNP flag, but was of the view that supporters and BNP members who carried the flag to meetings, demonstrations and rallies would be expected to have some familiarity with the flag.
The Tribunal accepted that (as the Applicant claimed in his post-hearing submission) in Bangladesh many people supported the political party their parents or older family members supported. However it found that the Applicant’s evidence tended to indicate that his father was not an active member or supporter of the BNP and that it was therefore unlikely that the Applicant became an active supporter of the BNP because he was following in his father’s footsteps.
The Tribunal accepted that the Applicant was not very well-educated and was therefore unlikely to have a sophisticated understanding of BNP policies, but found that given his claims about attending and organising meetings, rallies and demonstrations, it would expect him to at least have some knowledge of the colours of the BNP flag. It also noted that he had not made any claims in relation to supporting the BNP whilst in Australia since 2013.
The Tribunal was of the view that the issues in relation to the Applicant’s evidence raised serious concerns in relation to his claims that he was an “active supporter and organiser” in the BNP.
The Tribunal also considered the Applicant’s claims about incidents in January 2013 which were said to have caused him to leave Bangladesh and to fear returning. It recorded his initial claims that on 4 January 2013 about 8 members of the AL went to his father’s fish farm and asked for money and fish, threatened to kill him and threw an explosive device at him as described at [7] above. It recorded that he believed that his parents’ Indian descent played a role in the men picking on his father to ask for money.
The Tribunal had regard to the fact that during the interview with the Department the Applicant had made new claims about this incident, including that a shelter on the property was set alight and that the men pointed a gun at him, but did not shoot.
The Tribunal recorded that it had raised with the Applicant at the hearing that it would have expected him to have mentioned these events in his protection visa application if they had occurred and that his failure to do so raised concerns in relation to the credibility of his claims.
The Tribunal did not accept the explanations that the Applicant had made these claims to his migration agent and that his migration agent had not included them in his visa application, or that different interpreters on different occasions had “misinterpreted” important evidence that was relevant to the Applicant’s claims.
The Tribunal found it implausible that if members/supporters of the AL or a criminal gang went to the Applicant’s father’s fish farm for the purpose of extorting money and fish and were unable to get any money, that they would have left without taking any fish, as the Applicant claimed, especially as the Applicant’s evidence was that the farm was left unattended.
The Tribunal also considered the Applicant’s claims about an attack on his house on 27 January 2013 set out at [8] above, involving 10 to 12 people who he believed were associated with the AL. He claimed that they threw two explosive devices in front of his house, poured petrol on his dog and burnt it and threatened that if they found him they would burn him like a dog.
The Tribunal addressed the Applicant’s evidence in relation to whether either or both of the claimed incidents were reported to the police as follows (at paragraph 42):
The applicant gave evidence to the Tribunal that his father reported the first incident to the Police and the Police investigated it. He stated that when these people heard about the investigation, the second attack took place on 27 January 2013. This evidence is inconsistent with his earlier evidence to the Tribunal that when his father reported the first incident to the Police, the Police did not respond and his subsequent evidence to the Tribunal that there is no use in reporting anything to the Police because the Police will not do anything for them. It is also inconsistent with his evidence in his visa application that the Police are corrupt and help these people. This raises further concerns in relation to the credibility of the applicant’s claims.
The Tribunal found that the claim that the Applicant’s father reported the second incident to the police was implausible in light of the Applicant’s conflicting evidence. It stated (at paragraph 44):
…Firstly, if it was the case that his father reported the first incident to the Police, the Police investigated it and this [led] to these people attacking their house and killing their dog, then a further report to the Police would have only aggravated the situation and invited more problem for his family. Secondly, if, alternatively, his father reported the first incident to the Police and they did not respond, there would have been no point in reporting the second incident to the Police.
The Tribunal also found the Applicant’s claims that two bombs caused no damage to his house and that 8 to 12 people armed with bombs and pistols could not gain entry to the house to be implausible. It placed no weight on his post-hearing claim that there was a security grille in his house and a heavy lock on the door, or on the printout from the internet showing photographs of security grilles used in Bangladesh, in the absence of evidence as to where the security grille was on his home or a photograph of his house.
The Tribunal considered the Applicant’s new claim to the delegate that on 18 June 2014 his family had been subjected to extortion by the AL who took two carloads of fish and threatened to kill his father if he made a complaint to the police. It had regard to the fact that the Applicant had not referred to this incident when asked several times at the February 2016 Tribunal hearing whether his family had been involved in any further incidents after he left Bangladesh. It did not accept his explanation that there was a “misinterpretation”. The Tribunal found that this failure to mention a claim that people had extorted fish and threatened the Applicant’s family in June 2014 was consistent with his earlier evidence at the hearing that nothing else had happened after he lodged his visa application. It found that the inconsistencies in the Applicant’s evidence in this respect raised further concerns about the credibility of his claims.
The Tribunal addressed the claim that the Applicant’s father’s business was targeted in part because his family members were the only refugees from India in the area and/or because their Indian origin would lead them to be perceived as outsiders and/or because they were part of a minority in Bangladesh. It was of the view that if this was the motivation, it would have expected that the Applicant and his father would have had earlier ongoing problems in Bangladesh, not just from 2013 on. It found the claim that the family first had a problem on 4 January 2013 was not consistent with the family being targeted for these claimed reasons.
The Tribunal also referred to the fact that it had told the Applicant it had difficulty accepting his new claims at the hearing that “he had heard that” the government was taking away properties owned by his father because they were categorised as refugees and were “not entitled to anything”, given that his father owned a house, land he had cultivated and a fishing business. It noted that there was no explanation as to when or why properties originally owned by the Applicant’s grandfather were confiscated and that this claim had not been made in the protection visa application.
The Tribunal referred to country information and the submissions of the Applicant and his agent about targeting of minorities and the relationship between politics and violence in Bangladesh.
The Tribunal stated that, having considered the Applicant’s claims and evidence, it found that he was not a witness of truth and that he had fabricated his material claims for the purpose of obtaining a protection visa.
The Tribunal did not accept that the Applicant or his father was an actual or perceived supporter of the BNP and did not accept any of the claims that flowed from these claims. It did not accept that the incidents alleged to have taken place on 4 and 27 January 2013 in fact took place or any of the claims that flowed from such incidents. The Tribunal did not accept that members/supporters of the AL or a criminal gang extorted fish and threatened the Applicant’s family in June 2014 or that they were looking for him with the intention of harming him. It did not accept that the Applicant was otherwise of adverse interest to, or that there was a real chance he would suffer serious harm at the hands of, the AL, its members or supporters, a criminal gang or the Bangladeshi authorities.
As the Applicant and his family members were citizens of Bangladesh, the Tribunal did not accept that the Applicant or any member of his family was, or was perceived to be a Bihari or refugee in Bangladesh. It did not accept that he or any member of his family was not allowed to own property for this reason, that the government of Bangladesh had confiscated property owned by the Applicant’s father or that his father was “not entitled to anything”. The Tribunal did not accept the Applicant’s claims that his father’s business was targeted because his parents were the only refugees from India in the area and/or as perceived outsiders and/or because he owned a business as an Indian refugee, and/or because Bangladeshi citizens of Indian origin were a minority in Bangladesh.
While the Tribunal accepted that Bangladeshi citizens of Indian origin were a minority in Bangladesh, it did not accept the claims that they were defenceless and easy targets or that the government was complicit in targeting this group. It did not that accept that the Applicant was targeted and attacked or that there was a real chance he would be targeted and attacked if he returned to Bangladesh because he was a minority businessman and/or an Indian “refugee” who owned a business.
The Tribunal accepted that the family’s Indian origin “may lead to some members of the community perceiving them to be outsiders” and “that this may even lead to some discrimination against the applicant and his family”. However it was not satisfied that such discrimination would lead to serious harm.
The Tribunal was not satisfied that the Applicant left Bangladesh for any of the reasons claimed or that there was a real chance that he would suffer serious harm for any of the reasons claimed if he returned to Bangladesh and, having considered all of the Applicant’s claims individually and cumulatively and all the evidence and submissions, found that there was no real chance that the Applicant would be at risk of persecution on the grounds of his actual or implied political opinion, his race or for any other Refugees Convention reason if he returned to Bangladesh now or in the reasonably foreseeable future. It concluded that he did not have a well-founded fear of persecution for a Refugees Convention reason and did not satisfy the criterion in s.36(2)(a) of the Migration Act 1958 (Cth) (the Act).
In view of these findings, the Tribunal also was not satisfied there was a real risk the Applicant would suffer significant harm for any of the reasons claimed if he returned to Bangladesh now or in the reasonably foreseeable future. It was not satisfied the Applicant would be subjected to any of the forms of significant harm described in the Act if he returned to Bangladesh now or in the reasonably foreseeable future. It found that the Applicant did not satisfy the complementary protection criterion in s.36(2)(aa) of the Act.
The Tribunal affirmed the decision under review.
These Proceedings
By application dated 29 June 2016 the Applicant sought judicial review of the Tribunal’s decision. He advanced five grounds of review in his application. No particulars were provided. The Applicant’s affidavit in support of that application, also dated 29 June 2016, attached the decision of the Tribunal.
However, on 5 April 2017 the Applicant filed an affidavit which had been affirmed on 27 March 2017. Apart from copies of documents discussed further below, attached to this affidavit were two separate sets of written submissions. One set of written submissions addressed the five grounds of review in the application for review. The other set of submissions (dated 5 January 2017) advanced several different grounds of review.
In addition, the Applicant filed an amended application dated 2 March 2018, containing six new grounds of review which were not addressed in written submissions.
At the hearing, when asked which grounds he wished to rely on, the Applicant stated that he wanted the court to consider “everything”. I have considered all the “grounds” raised by the Applicant and the various other matters raised in written and oral submissions. It is convenient to consider first the grounds in the amended application.
Amended Application dated 2 March 2018
Ground 1 in the amended application
Ground 1 is as follows (errors in original):
The Tribunal fell in to error in asking correct (sic) questions to the applicant- whether the Applicant were likely to suffer harm in his country, Bangladesh where he had been living after his birth until he escaped to Malaysia to save his life from AL criminals.
Particulars
(i) The Tribunal made applicant many twisted questions on his role with BNP those was impossible to give correct answers, as the questions that the Tribunal made to the applicant is for the upper level of BNP leaders not for an activist of lower level like the applicant (AAT decision at 21-22 page 14)
(ii) The Tribunal comment on the applicant’s Indian origin may lead the applicant and his family as outsiders and lead some discrimination against the applicant his family. (AAT at page 12-13).
(iii) The Tribunal failed to ask itself whether the Applicant could subject to harm by the AL people or other criminals gang by whom the applicant and his father business was destroyed.
It is apparent that the reference to “correct” questions is intended to be a reference to “incorrect” questions.
In oral submissions the Applicant said that he had tried to tell the Tribunal that he came to Australia (through Malaysia) because of a risk to his life. He took issue with the Tribunal’s questioning at the hearing about his role with the BNP, on the basis that he was not a very intelligent or high-profile person in the BNP. He explained that his family came from outside India.
However, this ground and the Applicant’s oral submissions do not establish any jurisdictional error on the part of the Tribunal.
As the First Respondent submitted, the Applicant’s claim for protection before the Tribunal rested in large part upon his asserted involvement with the BNP and the violence that he claimed he had experienced at the hands of the AL as a result of that political involvement. It was therefore open to the Tribunal to ask the Applicant questions about his role in and knowledge of the BNP and the harm he claimed to fear from the AL. Such topics were of obvious and direct relevance to the Tribunal’s task of assessing whether the Applicant had a well-founded fear of persecution for a Convention reason or met the complementary protection criterion on any claimed basis. In any event, in the absence of a transcript there is no evidentiary support in the Tribunal’s decision record for the Applicant’s assertion that the Tribunal asked incorrect or “twisted” questions at the hearing such as to demonstrate jurisdictional error.
The Tribunal considered the Applicant’s explanation for his lack of knowledge of the BNP. While it accepted that he was not very well-educated and was thus unlikely to have a sophisticated understanding of BNP policies, it was of the view that if he attended meetings, rallies and demonstrations and (as he subsequently claimed) organised such events, it would expect him to have at least some knowledge of the colours of the party flag (even if he could not describe or draw it correctly). If the Applicant’s contentions are intended to assert actual or apprehended bias on the part of the Tribunal, this is not made out on the evidence before the court. As indicated, there is no transcript of the Tribunal hearing in evidence and the Tribunal’s reasons reveal an analysis of the Applicant’s claims and evidence that is not indicative of prejudgment (and see further below).
The nature of the Applicant’s concern about the Tribunal’s acceptance that the Indian origin of his family may lead some in the community to perceive them as outsiders and that this may even lead to some discrimination (referred to in particular (ii)) was not explained. The Tribunal’s lack of satisfaction that such discrimination would lead to serious (or significant) harm is to be seen in light of its earlier findings about the family’s circumstances discussed above.
The Tribunal considered, but rejected, the Applicant’s claimed fears on the basis that he or any member of his family would be perceived to be Bihari refugees, that they were not allowed to permanently own any property, or that his father was the victim of property confiscation. It also rejected the claims that the Applicant’s father’s business was targeted for any associated reason. In these circumstances it was reasonably open to the Tribunal not to be satisfied that the possibility of some (undefined) local discrimination against the Applicant and his family as outsiders (which it clearly saw as not being of a high level) would lead to serious harm. Such a finding was rationally open to the Tribunal. Even if another decision-maker may have reached a different view that does not establish illogicality in the sense considered in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 or legal unreasonableness (and see below).
Further, contrary to particular (iii), the Tribunal considered but rejected the claims that flowed from the asserted January 2013 and June 2014 incidents, including the claim the Applicant was of adverse interest to members/supporters of the AL or criminal gangs such that there was a real chance he would suffer serious harm at their hands.
No jurisdictional error is established on any basis contended for in this ground.
Ground 2 in the amended application
Ground 2 is as follows (errors in original):
The Tribunal erred and failing to assess for Convention nexus/complementary protection whether a “period of detention” would amount to significant harm (s36)2A) or serious harm (s91R (2) and section 5 of the Migration Act and committed jurisdictional error and/ or failed to consider complementary protection.
Alternatively, the Tribunal fell in to error in that is applied the incorrect test as to whether the Applicants are likely to suffer harm for the purpose of complementary protection in Bangladesh and applied incorrect test.
Particulars
(i) The Tribunal found that the applicant is outside his county or nationality, but the Tribunal did not find that the applicant has right to enter and reside in any country other than his country of nationality (AAT page section 17).
(ii) The Tribunal accept that the applicant’s father’s fish farm was destroyed by the criminals and his family was attacked and a family dogs was also burnt alive by the miscreants.
(iii) The other finding of the Tribunal is that the BNP activists and leaders are attacked by AL government/current regime.
When given the opportunity to address this ground in oral submissions, the Applicant explained why he followed the BNP.
As the First Respondent submitted, this ground of review misconceives the basis for the Tribunal’s decision. There is no evidence that the Applicant made any claim, either to the delegate or to the Tribunal, that he had been detained in Bangladesh or that he feared that he would be detained in the event of his return. In these circumstances, the Tribunal was not under an obligation to assess whether a period of detention would amount to serious or significant harm.
The Tribunal did not fail to consider whether the complementary protection criterion in s.36(2)(aa) of the Act was satisfied. The Applicant did not advance any separate basis for his complementary protection claim beyond the matters relied on in support of his claim to have a well-founded fear of persecution. The Tribunal’s findings about complementary protection were brief. However they were made in view of the Tribunal’s earlier comprehensive findings with respect to the basis for the Applicant’s claim to fear serious harm. In these circumstances it was reasonably open to it to conclude that it was not satisfied that there was a real risk that the Applicant would suffer any of the kinds of significant harm referred to in s.36(2A) of the Act. The Tribunal gave express consideration to whether s.36(2)(aa) of the Act was satisfied.
It was also contended (in the alternative), that the Tribunal applied the “incorrect” test for the purposes of the complementary protection criterion. The Applicant has not otherwise identified the nature of this asserted error. The Tribunal properly considered the Applicant’s claims under the complementary protection criterion. It assessed those claims against the relevant provisions in the Act in light of the reasons it had given for rejecting the Applicant’s claims for protection under s.36(2)(a) of the Act. It has not been established that the Tribunal failed to apply the correct test when assessing the complementary protection criterion.
As to the first particular, having accepted the Applicant was a citizen of Bangladesh and in the absence of evidence to suggest that he had a right to enter or reside in any other country, the Tribunal correctly assessed his claims on that basis.
Contrary to particular (ii), the Tribunal did not accept the Applicant’s claims that his father’s fish farm was destroyed, his family attacked and a family dog burnt alive by criminals or members/supporters of the AL. If this particular is intended to suggest that the Tribunal should have accepted these claims, it seeks impermissible merits review and does not establish that the Tribunal applied the “incorrect test” as pleaded.
The nature of the concern asserted in particular (iii) is also unclear. The Tribunal did not accept that the Applicant (or his father) was a supporter or perceived supporter of the BNP (let alone an active supporter and organiser). Hence it was unnecessary for it to consider the risk of harm from the AL to BNP activists and leaders.
This ground is not made out.
Ground 3 in the amended application
Ground 3 is as follows (errors in original):
The Tribunal find that the applicant fish farm was set alight but the men did not take any fish from their farm. Though his father did inform the police abut the incident but the police did not any response/steps to make an inquiry (AAT at section 37-38).
Particulars
(i) The Tribunal find that the miscreants did not come to steal or rob the fish.
(ii) AL Goons came to applicant father fish farm to harm the applicant and his father as the applicant involved in BNP politics the miscreant did not come to rob the fish farm of the applicant father.
(iii) The Tribunal fell in to error as its failed to differentiate whether the AL criminals or other criminals destroyed the farm to harm the applicant and his father physically and economically due applicant’s political background. The criminals did not come to the farm to steal the fishes.
In oral submissions the Applicant claimed that the attackers were “terrorist types” who belonged to the AL.
This ground appears to disagree with the Tribunal’s factual findings. It does not clearly allege any jurisdictional error on the part of the Tribunal. Paragraphs 37 and 38 of the Tribunal decision referred to in this ground record the Applicant’s written claims and those made orally, as well as the fact that at the hearing the Tribunal raised its concerns about the fact that new issues being raised after he made his application. However it appears that the Applicant intended to take issue with the Tribunal’s subsequent findings about the claimed events of January 2013.
The Tribunal did not accept the Applicant’s claims that AL supporters came to the fish farm in two incidents in January 2013. Contrary to the assertion in this ground, the Tribunal did not make any findings that the fish farm was set alight, but that the men did not take any fish. The emphasis in the particulars on what was said to have been found by the Tribunal in relation to the motivation of the alleged perpetrators is also misconceived. The Tribunal did not accept that the claimed incidents of 4 and 27 January 2013 took place.
As the First Respondent submitted, it is apparent from the Tribunal reasons (the only evidence before the court as to what occurred in the Tribunal hearing) that in the hearing the Tribunal had put the Applicant on notice that it held concerns in relation to the credibility of his claims, including about the alleged incidents. It explained the basis for these concerns, including the fact that he had failed to mention later claims relevant to these claimed incidents in his visa application form (including claims that a shelter on the property was set alight, that the men left without taking any fish, that while his father reported the first incident to the police they did not respond and that the men pointed a gun at him, but did not shoot).
The Tribunal considered the Applicant’s explanations. It did not accept that the Applicant told his migration agent all the new claims, but “maybe they missed it and did not write it” or that he had mentioned these matters during his interviews and that there must have been a “misinterpretation”. It observed that whenever the Tribunal raised an issue with him the Applicant had claimed that there must have been a misinterpretation.
The Tribunal also found it implausible that if members or supporters of the AL or a criminal gang had gone to the fish farm for the purpose of extorting money and fish and were unable to get any money, they would then have left without taking any fish (as the Applicant claimed) especially as the Applicant’s evidence was that the farm was unattended when he left it. This did not amount to a finding that the “miscreants did not come to steal or rob the fish” or that men came, but left without taking fish. This aspect of the ground misunderstands the basis for the Tribunal decision.
Moreover, contrary to the assertion in particular (ii) to this ground, the Applicant expressly claimed (including in post-hearing submissions to the Tribunal) that the alleged perpetrators of the claimed 4 January 2013 incident came to the farm and asked “for money and fish” (and then subsequently threatened to kill him after he refused to give them anything and they got into an argument).
As set out above, it was in light of the Tribunal’s credibility concerns about the asserted motivation for these events that it found that the Applicant was not a witness of truth and had fabricated his material claims. Critically, it did not accept that he or his father was a supporter or perceived supporter of the BNP or the claims that followed from that (including the claimed incidents of 4 and 27 January 2013 and June 2014).
Nor did accept that the Applicant was of adverse interest to the AL, its members/supporters, a criminal gang or the authorities such that there was a real chance he would suffer serious harm at the hands of such people if he returned to Bangladesh.
As discussed further below, such reasoning has not been shown to involve an identifiable error, “extreme” illogicality or irrationality (see ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; (2016) 250 FCR 109 at [47] and SZMDS) or to be otherwise such as to give rise to legal unreasonableness (see Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 at [72]).
Beyond this, insofar as this ground takes issue with the Tribunal’s failure to accept that the incidents occurred as claimed or because the Applicant was involved with the BNP, it seeks impermissible merits review.
Ground 3 is not made out.
Ground 4 in the amended application
Ground 4 is as follows (errors in original):
The claim of a particular social group/s or political opinion arise on the material. The Tribunal erred when it failed to consider the particular social group.
Particulars
(i) The risk to the applicant as a member of a particular social group or political opinion was not consider though the applicant was an activist of the BNP Party of Bangladesh.
(ii) The applicant was an Indian background Muslim and was involved with BNP politics.
(iii) The claims arose on the materials.
(iv) The Tribunal thereby committed jurisdictional error.
In oral submissions the Applicant claimed that his family was a Muslim family from India and that this was why they had no facilities or support in Bangladesh.
As the First Respondent submitted, the Tribunal addressed the claims the Applicant put forward. It sufficiently considered the factual basis for those claims. Having concluded that the Applicant was not a witness of truth (for the reasons referred to above), the Tribunal did not accept that he (or his father) was a supporter or perceived supporter of the BNP or any of the consequential claims. In circumstances where it had rejected the entire factual basis for the Applicant’s claim in relation to support for the BNP, it was not necessary for the Tribunal to deal further with any aspect of the claims based on support for the BNP under the rubric of membership of a particular social group. In any event, I note that the Tribunal’s findings in relation to the Refugees Convention criterion referred not only to political opinion and race but also to any other Convention reason.
Similarly, the Tribunal also considered whether the Applicant or his father was targeted or attacked because he was a minority businessman, Bihari, an Indian “refugee” or an Indian refugee who owned a business. The Tribunal accepted that the Indian origin of the Applicant’s family may lead some members of the community to perceive them as outsiders and that this may lead to some discrimination, but was not satisfied that such discrimination would lead to serious harm to the Applicant.
While the Tribunal’s findings about the Applicant’s claims based on his Indian background were not expressed in terms of a particular social group, it is clear that the Tribunal understood that an aspect of the Applicant’s claims could be seen as based on his family history. It referred to country information about significant discrimination against Biharis in Bangladesh. It observed that the Applicant did not claim to be Bihari (that is, a stateless Urdu speaking Indian Muslim living in Bangladesh). It did not accept the Applicant was or would be perceived to be Bihari. The Tribunal also considered the other aspects of the Applicant’s claims based on his family history and origin.
Insofar as it is asserted that a claim arose on the material before the Tribunal that the Applicant feared harm as a Muslim of Indian origin, there is no evidence that the Applicant made a claim to fear harm based on his Islamic religion, either of itself or combined with his claimed involvement with the BNP. Nor is it apparent that such a claim arose clearly and squarely on the material before the Tribunal in the sense considered in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1. The Tribunal considered the Applicant’s claimed involvement with the BNP (including the claim that he was an active supporter and organiser).
It has not been established that the Tribunal fell into jurisdictional error in the manner contended for in this ground.
Ground 5 in the amended application
Ground 5 is as follows (errors in original):
The Tribunal was procedurally unfair in not allowing the Applicants to put their claims and or present arguments thereby breaching 525 of the Act.
Particulars
(i) The Tribunal denied the Applicant’s procedural fairness in limiting the Applicant’s case.
(ii) The Tribunal limited the answer to “Yes” or “No” thereby precluding the Applicant from fully presenting and arguing tier case.
(iii) The Tribunal there by committed jurisdictional error.
In oral submissions the Applicant claimed that he was “mentally very down” at the time of the Tribunal hearing and that this was why he was in “tension” and could not explain himself properly. There is no evidence that any such concerns were raised with the Tribunal, either during or after the hearing. There is no evidence that the Applicant was not fit to participate in the Tribunal hearing (cf. Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126; (2003) 128 FCR 553).
There is no evidentiary basis for a contention that there was a failure to comply with s.425 of the Act (which it appears is what was intended by the reference to “525” in this ground). Despite being given the opportunity to do so, the Applicant did not file a transcript of the Tribunal hearing. Further, and as submitted by the First Respondent, the Tribunal’s decision record indicates that the Tribunal provided the Applicant with an opportunity at the hearing to provide fulsome responses to concerns that it identified with respect to his claims, going well beyond a mere “yes” or “no” answer. In so doing, the Tribunal put the Applicant on notice of the dispositive or determinative issues on the review, in particular the credibility of his evidence and the veracity of his claims.
Further, the Tribunal provided the Applicant with additional time after the hearing to lodge evidence and submissions and gave express consideration to that additional material.
The Applicant has not established any failure to comply with s.425 of the Act or that he was not provided with a real and meaningful opportunity to give evidence and present arguments relating to the issues arising in relation to the decision under review.
This ground is not made out.
Ground 6 in the amended application
The last ground in the amended application is also numbered ground 5, but it is in fact the sixth ground. It is as follows (errors in original):
The Tribunal applied the wrong test in relation to section 5 and section 36(2A) of the Migration Act 1958 and/or failed to address an integer/claim regarding the detention claim.
(i) The Tribunal address as “political/social discrimination and failed to make finding that the Applicant claims of denial constitute serious or significant harm. The Tribunal applied the wrong test to the applicant.
(ii) The Tribunal thereby committed jurisdictional error.
In oral submissions the Applicant claimed wherever he went in Bangladesh, “they” would look for him and get him.
This ground lacks clarity. As the First Respondent contended, and as discussed above in relation to ground 2, the Applicant did not make any “detention claim” in support of his visa application. Nor does the Tribunal’s decision record support any allegation that it applied the wrong test with respect to any of ss.36(2)(a), (aa) or 36(2A) of the Act. It did not accept the Applicant’s claims to fear harm by reason of his political opinion. It considered whether there was a real risk the Applicant would suffer serious or significant harm (of the various kinds defined in the Act) on any of the bases claimed.
While the Tribunal’s reasons in relation to complementary protection were brief, the findings in that respect were made in view of its earlier findings rejecting the credibility of the Applicant’s material claims and its finding that there was no real chance he would be subject to serious harm because of his family’s Indian origin or for any other Convention reason.
Insofar as the Applicant seeks merits review, merits review is not available in these proceedings.
This ground is not made out.
Original application dated 29 June 2016
Each of the five grounds advanced in the Applicant’s original application for review involves an assertion that the Tribunal erred because it failed to find that the Department had erred or that the Department had denied the Applicant procedural fairness. This was put on the basis that the delegate did not consider or accept particular claims and matters that had been advanced by the Applicant, including that he “was a victim of persecution” and “was physically abused” for his political beliefs (Grounds 1 and 2); that he would be “imprisoned and tortured if returned to Bangladesh” (Ground 3); that he had a “genuine fear of persecution” (Ground 4); and that he would “face punishment [that] would be completely politically motivated [sic]” (Ground 5).
The court has no jurisdiction to review the decision of the delegate in this case (s.476(2)(a) of the Act). Moreover, the complaints by the Applicant about the Tribunal’s approach to the delegate’s decision misconceive the function of the Tribunal and its powers under the Act. Relevantly, the Tribunal was tasked not with assessing the factual findings made by the delegate, but with undertaking a de novo review. The Tribunal could exercise all of the powers and discretions conferred by the Act upon the original decision-maker (s.415(1)) irrespective of the validity of the decision under review. As the First Respondent submitted, the Tribunal’s decision on review was therefore able to “cure” any defects and irregularities in the delegate’s decision (see Zubair v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 248; (2004) 139 FCR 344 at [32]).
None of the grounds in the original application establish jurisdictional error as pleaded.
Insofar as in his written outline of submissions addressing the grounds in his original application, the Applicant repeated his claims to fear harm and took issue with the Tribunal’s failure to accept his claims (or to understand the political climate in Bangladesh), he seeks impermissible merits review.
In written submissions, the Applicant also expressed concern about the Tribunal’s reliance on a DFAT Report which had been criticised by his migration agent. The Tribunal referred to this criticism (which was in the agent’s pre-hearing submissions and included information about the situation in Bangladesh). The agent had submitted that the 2014 DFAT Report on Bangladesh “largely reads like a reproduction of information such as would be provided by a Bangladeshi government official to their Australian counterpart”; that it was “[w]ithout evidence” and “contradictory to the majority of independently substantiated reports” (in relation to political violence in Bangladesh). The agent submitted that little weight should be given to DFAT’s assessment that supporters or members of political parties were not at risk of arrest or violence and cited other country information.
The Tribunal stated that it had had regard to the country information cited and to the submissions and other open source country information on Bangladesh. It did not accept the agent’s view in relation to the DFAT Report. It observed that the report provided DFAT’s “best judgment and assessment at the time of writing”, that it was expressed to be distinct from Australian Government policy and that it was based on “on the ground” knowledge and discussion with a range of sources and took into account relevant and credible open source reports. The Tribunal stated that it had considered the 2014 DFAT Report and the Department’s Policy Guidelines to the extent relevant.
It was for the Tribunal to determine the choice and weight to be given to information to which it had regard. It referred to information provided by the Applicant’s agent. It stated that it had had regard to this information and to other open source country information on Bangladesh. Furthermore, insofar as the agent’s submission referred to more recent country information about political violence in Bangladesh, as the Tribunal rejected the Applicant’s claims to be a supporter of the BNP (for reasons unrelated to the matters referred to in such material and based on issues in relation to the Applicant’s credibility), it was unnecessary for it to address the current situation in Bangladesh for those who were BNP supporters or activists.
The Applicant’s concerns in this respect are not indicative of jurisdictional error.
Insofar as the submissions contended generally that the Tribunal ignored documentary evidence, this contention is considered below at [194]-[248].
Written submission of 5 January 2017
A separate written submission of 5 January 2017 (also annexed to the Applicant’s affidavit of 27 March 2017) listed four new “grounds of application” and went on to seek relief on three bases which raised further issues.
Notwithstanding that the “grounds” and other issues raised in this written submission were not reflected in the application or in the amended application, they were addressed in submissions for the Minister. The Applicant was also given the opportunity to elaborate on these contentions in oral submissions.
Ground 1 in the submission of 5 January 2017
The first ground asserted in this submission is that “[t]he Tribunal made error of law and failed to exercise the proper procedure in relation to make its decision (sic)” and that it “did not follow the hearing rule as based on Maxim which is clearly recognized as a denial of procedural fairness”.
No particulars were provided. However in the submission the Applicant contended that the Tribunal did not “properly follow the procedure and did not ask the question directly relevant to his UN Convention based claim”. The submission stated that the Applicant was relying on the transcript of the Tribunal hearing which was said to clearly indicate that the Tribunal erred in this manner. However the Applicant did not file a transcript of the Tribunal hearing in these proceedings, despite being afforded the opportunity to do so.
As the First Respondent submitted (and as discussed above in relation to Ground 5 in the amended application), no jurisdictional error is apparent in the Tribunal’s procedure in relation to the hearing. The Tribunal invited the Applicant to appear before it to give evidence and present arguments in accordance with s.425(1) of the Act. The invitation was in accordance with s.425A of the Act. The Applicant availed himself of the opportunity to attend the hearing. He had the assistance of his migration agent and a Bengali interpreter.
It is apparent from the Tribunal reasons (the only evidence as to what occurred in the hearing), that the Tribunal put the Applicant on notice of the concerns it held in relation to his claims and provided him with an opportunity to address those concerns. The Tribunal also gave the Applicant the opportunity to comment on country information, including information which provided a basis for the Tribunal to question the Applicant’s lack of familiarity with the BNP flag. I also note that the Applicant was afforded, and took, the opportunity to file post-hearing submissions (which did not raise any concerns in relation to the way the hearing was conducted). The Tribunal engaged with the material provided after the hearing.
In the absence of a transcript, there is no evidence to suggest that there was any failure by the Tribunal to raise dispositive issues with the Applicant at the hearing. To the contrary, the Tribunal’s decision record suggests that the Tribunal properly put the Applicant on notice of dispositive issues in the review and engaged in a course of questioning relevant to that task. No jurisdictional error is established in relation to the conduct of the hearing.
In oral submissions the Applicant stated that he had told the Tribunal he was not well-educated or intelligent, but that he was involved with the BNP. His concern was that the Tribunal did not believe him. This concern is not indicative of any denial of procedural fairness, but seeks merits review. The Tribunal considered his claim that his poor knowledge of the BNP, including in relation to the BNP flag, reflected the fact he was not well-educated or very knowledgeable.
It has not been established that the Tribunal failed to comply with any statutory or procedural fairness obligations in relation to the hearing.
Insofar as the submissions assert that the Tribunal ignored an “undertaking” to give the Applicant an opportunity to make further written submissions about the inconsistencies in his evidence and hence denied him procedural fairness, the Tribunal recorded that at the hearing it gave the Applicant additional time to provide further evidence and submissions. It addressed the post-hearing submission he provided.
There is no basis in the evidence for the Applicant’s claim that the Tribunal ignored an undertaking to give him an opportunity to make further written submissions.
This ground is not made out.
Ground 2 in the submission of 5 January 2017
The second “ground” in this submission is that “[t]he manner in which the tribunal dealt with the application and the applicant was such that it is possible to fairly apprehend that the tribunal did not bring an impartial mind to the resolution of the matter before it”.
The Applicant alleged generally in this submission that the Tribunal was “biased, or, in the alternative, there was an apprehension of bias”. In particular, the Applicant suggested that the Tribunal was quite influenced and biased by the delegate’s decision and was heavily dependent on generalised facts, DFAT reports and the findings of the Department. It was submitted that rather than having a fresh look at the case on its merits, the Tribunal had processed the matter with a “preoccupied” attitude. The Applicant had nothing to add to these contentions in oral submissions.
An allegation of actual bias 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]). Such an allegation is a serious matter and a finding of actual bias must not be made lightly.
As the First Respondent pointed out, the Applicant has provided no particulars in support of his general allegation of bias, nor any evidence with respect to the “manner” in which the Tribunal dealt with the application and/or with him to support a claim of bias. The Applicant did not file a transcript of the Tribunal hearing. It is a rare and exceptional case in which bias will be established on the basis of the Tribunal reasons alone (SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668). This is not such a case.
In this case it is apparent from the reasons that the Tribunal carefully examined the claims made by the Applicant and identified the basis for concerns it held with respect to the veracity of those claims. The Tribunal’s decision record reveals that it provided the Applicant with an opportunity to address those concerns and actively considered his evidence, responses and arguments. There is no evidence to support a conclusion that the Tribunal had pre-judged the matter or that it was so committed to a conclusion that the Tribunal member’s mind could be said to be closed to any argument or incapable of alteration.
Insofar as the Applicant intended to rely on the Tribunal’s adverse credibility findings in support of the contention of bias (or apprehended bias), the Tribunal is entitled to assess the evidence before it and to attach such weight to that evidence as it considers appropriate. As the Full Court of the Federal Court observed in SBBA v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 90 at [15]:
Even were the Tribunal to disbelieve every element of the appellant’s claim (and it did not) it would not be sufficient to establish bias. Bias or lack of good faith requires much more. It requires that the decision maker have prejudged the matter, and that he or she has a mind closed to any argument in support of a contrary conclusion.
Actual bias has not been established.
The Applicant’s alternative allegation of apprehended bias requires an objective assessment of the connection between the facts and circumstances and the asserted conclusion which is said to be such that a fair-minded lay observer might reasonably apprehend that the Tribunal did not bring an impartial and unprejudiced mind to bear upon the issues before it (Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425). In the absence of any particulars or evidence to substantiate the Applicant’s allegation of apprehended bias, this complaint cannot succeed. It cannot be said that the Tribunal’s fact-finding was unreasoned or involved mere assertion lacking a rational or reasoned foundation or that it was plainly wrong (see NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328; (2004) 214 ALR 264 per Allsop J (as his Honour then was) at [115]).
Nor was the Tribunal’s decision selective of material going one way. Its approach to the migration agent’s criticism of the 2014 DFAT Report is described above (at [112]). As indicated, it had regard to a range of country information and its findings, in particular that the Applicant was not a supporter or a perceived supporter of the BNP, were reasonably open to it on the material before it for the reasons it gave.
This ground is not made out.
Ground 3 in submission of 5 January 2017
By this ground, the Applicant alleged that the Tribunal “denied [him] natural justice and procedural fairness pursuant to s 423A and 424A(1)(a) and 424B(1)(a) and (b)” of the Act.
In the submission issue was taken with the Tribunal’s reliance upon country information and inconsistencies between the Applicant’s claims in the protection visa application and those made to the Tribunal. It was asserted that the Tribunal had failed to put those inconsistencies in writing to the Applicant for comment.
However, contrary to the Applicant’s submission, the concerns the Tribunal held with respect to his credibility and the veracity of his account do not constitute “information” within the meaning of s.424A of the Act (SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609). As stated in VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123; (2004) 236 FCR 549 and cited in SZBYR at [18] the word “information” in s.424A(1) of the Act does not:
...encompass the tribunal’s subjective appraisals, thought processes or determinations… nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps.
The Tribunal was not obliged to put such concerns in writing to the Applicant for comment.
To the extent that the Tribunal relied on information in the delegate’s decision, a copy of that decision was provided to the Tribunal by the Applicant. Accordingly such information was within the exception in s.424A(3)(b) of the Act and hence did not enliven the s.424A(1) obligation.
Insofar as the Applicant submitted that country information had to be put to him under s.424A of the Act on the basis that it was not about him but was just about a class of persons, this misunderstands the exception to the s.424A(1) obligation in s.424A(3)(a) of the Act. The country information fell within that exception. The Applicant’s contention that the Tribunal failed to comply with s.424A is not made out.
As for the Applicant’s reliance upon s.423A of the Act, s.423A only applies to an application for a protection visa made on or after 18 April 2015 and therefore has no application in this case. Even if it had been applicable, it would not assist the Applicant as it requires the Tribunal to draw an unfavourable inference in certain circumstances.
The reference to s.424B(1) is unclear. The Applicant was not invited in writing under s.424 to give information. Nor was he invited under s.424A to comment on or respond to information. Accordingly the procedural requirements in s.424B of the Act were not engaged (see s.424B(1)(a)-(b)).
As no failure to comply with any of these provisions has been established, the Applicant’s associated claim that he was denied procedural fairness “pursuant to” these statutory provisions is also not made out.
Insofar as the Tribunal was also said to have denied the Applicant procedural fairness by ignoring what was said to be “its undertaking to give him an opportunity to make further written submissions about the inconsistencies in his evidence”, as discussed above, this claim is not made out.
Ground 4 in submission of 5 January 2017
In ground 4 in the submission of 5 January 2017 the Applicant contended that the Tribunal was “preoccupied” and that this was why he was denied natural justice and procedural fairness “when the Tribunal formed the view about [him] before the hearing”.
To the extent that this is a further allegation of prejudgment or bias on the part of the Tribunal, as the First Respondent submitted, the Applicant must establish that the Tribunal was “so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented” (Jia Legeng at [72]). The Applicant has not identified any basis for his allegation that the Tribunal had formed a view about him before the hearing. There is no transcript of the Tribunal hearing in evidence. He did not address this ground in oral submissions. Nor is such a contention supported by the Tribunal’s decision record, which indicates that the Tribunal raised with the Applicant concerns that it held in relation to his account. It gave express consideration to the explanations he offered in response and to his oral, pre-hearing and post-hearing submissions in support of his claims. Insofar as the Applicant takes issue with the Tribunal’s assessment of the merits of his claim, merits review is not available in these proceedings.
The Applicant’s contention in the written submission that the Tribunal was “heavily depended [sic] in their handling of the issues based on the generalized facts and findings of the DIBP and generalized DFAT reports” is discussed above. As indicated, no jurisdictional error is established on this basis.
Further, contrary to the Applicant’s submission, the Tribunal did not base its findings or conclusions on any findings made by the delegate. As the First Respondent submitted, the Tribunal discharged its statutory task of conducting a de novo review of the Applicant’s claims for protection. In so doing, the Tribunal (permissibly) had regard to the information contained in the delegate’s decision, a copy of which had been provided to it by the Applicant. The Applicant’s contention that the Tribunal was “quite influenced and biased by the delegate’s decision” is not made out. Notably, unlike the delegate, the Tribunal did not base its decision on the reasonableness of relocation. It rejected the credibility of the Applicant’s material claims.
More generally, insofar as the Applicant again challenged the Tribunal’s reliance upon “generalized DFAT reports” and country information, both the choice and the assessment of the weight to be given to such material were matters for the Tribunal (see NAHI v Minister of Immigration and Multiculturalism and Indigenous Affairs [2004] FCAFC 10). The Tribunal had regard to the country information and submissions provided by the Applicant and his migration agent, as well as to other country information on Bangladesh, including a DFAT Report. The conclusions reached by the Tribunal based on cited country information were limited in nature and were reasonably open to it on the basis of the material before it. There is no evidence that it failed to refer to relevant recent country information (cf Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2003) 230 FCR 431).
No jurisdictional error has been established on this basis. Ground 4 in this submission is not made out.
Additional “grounds” in the written submission of 5 January 2017
Confusingly, after specifying four “grounds of application” the submission of 5 January 2017 then sought relief on the basis of different grounds (as well as repeating the claims of actual or apprehended bias and a lack of procedural fairness which, as discussed above, are not made out).
First, relief was sought on the basis that:
1. The Tribunal erred in holding that the applicant’s claim is ‘highly inconsistent’ and it has remarked that only high profile BNP activists would have been attacked by the AL-supporter by reason that:
Particulars:
(a) there was no evidence to support the finding
(b) the tribunal failed to have regard to the applicant’s evidence that he moved from place to place to avoid detection until he left Bangladesh
(c) the tribunal failed to have regard to the relevant question of the primary application where it has asked, ‘address where you lived more than 12 months in the last 10 years’.
(d) the finding was unreasonable in the Wednesbury sense.
The Applicant did not elaborate on this “ground” in written or oral submissions.
First, contrary to the contention in this “ground”, the Tribunal made no finding or observation in its reasons that only high-profile BNP activists would have been attacked by AL supporters.
Further, as the First Respondent submitted, the Applicant’s suggestion that the Tribunal rejected his claim because it was “highly inconsistent” does not accurately reflect the basis for the Tribunal’s finding that he was not a witness of truth and that he had fabricated his material claims for protection. The Tribunal did rely on inconsistencies in various aspects of the Applicant’s evidence in reaching this finding, but did not simply find that his claim was “highly inconsistent”. It took into account inconsistencies and the fact that several aspects of his evidence were vague and lacking in detail and that aspects of the claims were “implausible”. It had regard to the fact that the Applicant had made several new claims throughout the process. It was the combination of all its concerns about all the Applicant’s claims and evidence which led to the Tribunal’s adverse credibility finding.
The Applicant has not explained his contention (in particular (a)) that there was “no evidence to support the finding”. If this is intended to refer to a finding that the Applicant’s claim was “highly inconsistent”, there was no such finding. If it is intended to suggest that the Tribunal found that “only high profile BNP activists would have been attacked by the AL supporter”, the Tribunal made no such finding. It was, however, reasonably open to the Tribunal to make the adverse credibility finding and to find that as it did not accept that the Applicant was an actual or perceived supporter of the BNP it did not accept any of his claims that flowed from that. There was a probative basis for such findings having regard to the Tribunal’s evaluation of the concerns about the Applicant’s evidence, the changes in his account of what he did as a supporter of the BNP, implausibilities in aspects of these claims and his poor knowledge of the BNP.
Contrary to the allegation in particular (b), there is no evidence before the court that the Applicant claimed that he had moved from place to place to avoid detection until he left Bangladesh. As the First Respondent pointed out, in his visa application form, in response to the requirement to list the addresses where he had lived during the last 10 years, the Applicant provided one residential address for the entire period from his date of birth to 28 January 2013, which was three days before his departure from Bangladesh on 1 February 2013. In his entry interview, the Applicant was recorded as indicating that he had “only lived in one address” during the past 20 years. Where the Applicant had lived did not form part of his claim. It was not necessary for the Tribunal to refer expressly to the address information in the visa application form. Particulars (b) and (c) to this ground do not go towards establishing any jurisdictional error.
Particular (d) to this ground alleges, without explanation, that the finding that the Applicant’s claim was highly inconsistent was “unreasonable in the Wednesbury sense”. It appears that this may be intended to relate to the Tribunal’s rejection of the Applicant’s claim to fear harm as a supporter of the BNP.
The second basis on which relief is sought in this submission also alleges unreasonableness. It involves a contention that the Tribunal “erred in holding that the applicant was not pursued and threatened by the then Awami League administration”. The particulars allege that “the finding was unreasonable in the Wednesbury sense”.
The Applicant did not address legal unreasonableness in submissions.
As the First Respondent submitted, insofar as the Applicant intended to take issue with the outcome of the Tribunal decision, the Applicant has not established that the Tribunal’s decision “lacks an evident and intelligible justification” (Li at [76] per Hayne, Kiefel and Bell JJ, and also see Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 at [44]-[47] and Minister for Immigration and Border Protection v Eden [2016] FCAFC 28; (2016) 240 FCR 158 at [64]).
As Wigney J (with whom Allsop CJ agreed) observed in Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1 at [92]:
The critical point is that, in reviewing a decision on the ground of legal unreasonableness, the Court’s role is strictly supervisory. It is concerned with determining whether there has been a lawful exercise of power having regard, in particular, to the terms, scope and purpose of the statute conferring the power. In circumstances where reasonable minds might differ about the outcome of, or justification for, the exercise of power, or where the outcome falls within the range of legally and factually justifiable outcomes, the exercise of power is not legally unreasonable simply because the Court disagrees, even emphatically, with the outcome or justification. If there is an evident, transparent and intelligible justification for the decision … or if the decision is within the “area of decisional freedom” of the decision-maker… it would be an error for the Court to overturn the decision simply on the basis that it would have decided the matter differently...
In this case the Tribunal’s detailed discussion of the various bases for its credibility concerns and its reasons for rejecting the Applicant’s claims to be at risk of harm as a supporter of the BNP provide a basis for a conclusion that is within the range of legally and factually justifiable outcomes. The fact that the Applicant disagrees with the outcome of the decision does not suffice to establish legal unreasonableness.
Insofar as it is intended to be claimed that there was unreasonableness in fact-finding as a result of identifiable errors, this is also not made out.
I have borne in mind that credibility findings are not immune from judicial review (see CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496 at [37]-[38]). However the Tribunal’s decision involved reasoning which weighed a variety of factors. It was for the Tribunal to weigh competing evidence and to make findings in relation to what it regarded as “inconsistent”, “different” or “implausible” accounts of factual events and other aspects of the Applicant’s claims.
Insofar as the Tribunal is said to have made irrational or illogical findings of fact, “extreme” illogicality (see Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 at [148] and ARG15 at [47]) must be established, “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions and against the framework of the inquiry being as to whether or not there has been jurisdictional error on the part of the Tribunal” (SZRKT at [148] and see SZMDS at [130]-[131] per Crennan and Bell JJ).
In this case the Tribunal’s rejection of the claims for protection put forward by the Applicant (in particular the rejection of the claims about involvement in the BNP and the incidents of January 2013 and June 2014 and the fact that the Tribunal did not accept that the Applicant was threatened by or was of adverse interest to AL members or supporters or a criminal gang) was based principally upon the adverse credibility finding which it made in light of all the Applicant’s claims and evidence (both written and oral).
As indicated, in the course of making that finding the Tribunal identified a number of concerns with respect to the Applicant’s claims and evidence in relation to his involvement with the BNP, including the fact that he had provided inconsistent accounts to the Department and to the Tribunal (at various times) about the nature and significance of his claimed role in the BNP and also that his evidence in this respect was “vague and lacking in detail”. The Tribunal also found that it was “implausible” that a person who claimed to be a young inexperienced supporter of the BNP for 3 years would have been involved in making decisions of the nature the Applicant claimed he was responsible for in post-hearing submissions and also that his failure to mention such details of his role in the BNP at an earlier stage raised serious concerns about the credibility of such claims.
In addition, the Tribunal had regard to inconsistencies and changes in the Applicant’s account of his involvement in election campaigns, in particular his claims that he worked for the national election in 2008 and that he went to places that were far from his house for political campaigns for the BNP. As set out above, the Tribunal found that these claims were problematic for several reasons, including inconsistency with the Applicant’s earlier account to the Tribunal and the delegate, the fact that the 2008 election was before the time the Applicant claimed he became a BNP supporter, the fact there were no national elections after the time he claimed he became a supporter and before he left Bangladesh, and the implausibility of his claim that he walked to distant places where there were (city corporation) elections in 2012-2013.
The Tribunal also found, after considering the Applicant’s explanation, that his lack of any knowledge of the colours of the BNP flag raised serious concerns in relation to his claims that he was an active supporter and organiser in the BNP. For all these reasons it did not accept these aspects of his claims.
Further, the Tribunal had regard to the fact that the Applicant had made additional later claims with respect to the alleged incident of 4 January 2013 as discussed above. The Tribunal considered the Applicant’s explanation that he had mentioned these matters during his interviews and that there must have been a misinterpretation, but did not accept that interpreters had “misinterpreted” important evidence that was relevant to his claims. It also noted that a misinterpretation was not the same as not mentioning claims at all. The Tribunal also found that it was implausible that if the perpetrators went to the fish farm to extort money and fish (as the Applicant had claimed) and were unable to get any money, they would have left without taking any fish – particularly in circumstances where the Applicant claimed that the farm was unattended when he left.
In addition, the Tribunal took into account the fact that the Applicant had provided inconsistent and implausible evidence to it about the alleged incident of 27 January 2013, including in relation to the response of the police to a claimed report by his father of the first incident. It recorded that the Applicant initially claimed that the police did not respond, but later stated that the police had investigated the report made by his father and that the second incident took place when the perpetrators heard about the investigation. However, he also said that there was no use in reporting anything to the police because the police would not do anything for them and had indicated in his protection visa application form that the police were corrupt and helped these “terrorist type of people”. Those inconsistencies raised further concerns for the Tribunal in relation to the credibility of the Applicant’s claims. In this context the Tribunal also found that it was implausible that the Applicant’s father reported the 27 January 2013 incident to police in light of his conflicting evidence.
The Tribunal considered, but found implausible, the Applicant’s claim that two bombs said to have been detonated by the perpetrators caused no damage to his house. The Tribunal found it implausible that 8 to 12 people armed with bombs and pistols would not have been able to gain entry to the Applicant’s house had they wished to do so.
It cannot be said that there was no logical or probative basis for such findings on the evidence before the Tribunal.
Insofar as the Applicant has particular concerns about aspects of this reasoning this must be considered in the context of the decision as a whole in a practical and common-sense manner. The fact that the Applicant disagrees with the Tribunal’s view of his evidence and to findings of fact does not suffice to establish extreme illogically or legal unreasonableness. Even if reasonable minds may differ, a reasonable decision-maker could have come to the same conclusions and made the same findings on the material before the Tribunal (SZMDS at [130]-[135]).
Having regard to the range and nature of matters taken into account by the Tribunal, extreme illogicality has not been established in the Tribunal’s fact finding about the Applicant’s involvement in the BNP. Further its finding that it did not accept that the claimed incidents took place has not been shown to be illogical having regard to the Tribunal’s rejection of the Applicant’s claim that he and his father were supporters of the BNP. The Applicant had claimed that the January 2013 incidents involved AL people and had a political motivation based on his support for the BNP.
Similarly, the rejection of the Applicant’s claim about extortion in June 2014 flowed from the rejection of the BNP claims. The Tribunal also had regard to the Applicant’s failure to mention this claim when asked about events after he lodged his visa application in May and about whether the people he feared had returned to his father’s house or workplace after 27 January 2013. The Tribunal recorded that when this omission was raised with the Applicant at the hearing, he suggested that he thought there was a misinterpretation. The Tribunal did not accept that this addressed the issue it had raised. It concluded that the Applicant’s failure to mention the June 2014 extortion attempt when given the opportunity to do so raised further concerns about the credibility of his claims.
Further, the Tribunal took into account the fact that while the Applicant claimed that his Indian heritage played a role in the alleged perpetrators targeting his father to ask him for money, in response to questioning from the Tribunal, he had stated that he or his family first had a problem in Bangladesh on 4 January 2013. The Tribunal found that this was not consistent with the family being targeted because they were refugees, outsiders or otherwise a minority as the Applicant claimed, given that the Applicant’s grandfather and father had allegedly moved to Bangladesh in 1971 and had lived there ever since, thus addressing the other asserted motivations.
Insofar as the Applicant made a new claim during the Tribunal hearing that the Bangladeshi government was taking away property owned by his father, that his father was not entitled to anything, and that whatever they owned was not permanent “because they are categorised as refugees in Bangladesh”, the Tribunal considered this claim but had difficulty accepting it given that the Applicant’s father owned a house, land that he had cultivated, and a fishing business. It observed that the Applicant had provided no explanation as to when or why properties were confiscated and that such a claim was not made in his protection visa application.
As the First Respondent submitted, the Tribunal put the Applicant on notice of the specific concerns that it held in relation to his credibility. It gave him the opportunity to reconcile his conflicting accounts. He availed himself of that opportunity. The Tribunal considered, but was not bound to accept, the explanations that the Applicant offered. There was evidence before the Tribunal on which its findings could be. It identified the evidence about which it had concerns or which it regarded as inconsistent. It also identified the difficulties it had in accepting the Applicant’s claims as ultimately presented. No denial of procedural fairness has been established.
Having regard to the inconsistencies in the Applicant’s evidence, the omission of relevant events from his earlier accounts and the implausibility of certain aspects of his claims, the Tribunal’s adverse credibility finding and its consequential rejection of the Applicant’s claim for protection was not arbitrary or capricious. Nor could it be characterised as plainly unjust, irrational or obviously disproportionate so as to be legally unreasonable. It has not been established that the Tribunal’s approach to these claims involved illogicality or irrationality such as to demonstrate unreasonableness or was otherwise indicative of jurisdictional error. It cannot be said that no reasonable decision-maker could have taken the same approach to these claims on the evidence before the Tribunal.
While the Tribunal rejected the Applicant’s claim to have been pursued and threatened by or at risk of harm from the AL (or a criminal gang or the Bangladeshi authorities), no legal error has been established in the fact-finding. None of the impugned findings (or the Tribunal’s credibility finding) has been shown to be vitiated for jurisdictional error in the manner contended for by the Applicant.
This is not a case in which there was no probative evidence or no logical connection between the evidence and the inferences or conclusions drawn by the Tribunal. The impugned findings and findings along the way in relation to inconsistencies and other concerns about the Applicant’s evidence were reasonably open to the Tribunal on the evidence before it. As discussed, even if logical or reasonable minds may differ in respect of some of the findings to be drawn from the evidence, this was a case in which, in relation to specific findings about past claims, the overall credibility findings and the findings about the future, “on the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal” (see SZMDS at [135]). Further, there was an evident and intelligible justification for the Tribunal’s decision.
Neither legal unreasonableness nor any other jurisdictional error on any of the bases contended for by the Applicant is established.
The third basis or “ground” on which relief is sought in the written submission of 5 January 2017 involves a contention that the Tribunal erred in holding that the Applicant was “not a person to whom Australia owes protection obligations under the Refugees Convention and therefore does not satisfy the criteria in s.36(2) of the Migration Act”. It was alleged that the Tribunal “failed to internalize the circumstantial grounds of the applicant’s review application”. This complaint is difficult to understand. It was not particularised. The Tribunal considered the integers of the Applicant’s claims. Merits review is not available.
Insofar as bias (actual or apprehended) and/or a lack of procedural fairness are again asserted in this context, for reasons discussed above these claims are not made out.
This “ground” is not established.
Finally in this submission it was asserted (errors in original):
Surprisingly, at any stage of the hearing, the ‘Internal relocation’ issue was not raised by the tribunal during the review process and no adverse material were put to the applicant that were take (sic) into consideration while the second respondent made its decision.
The Hon. Court must realise that the tribunal’s job is not to review the delegate’s decision; rather its job is to review the matter with a ‘fresh look’ and consider all the relevant documents that were submitted till date.
As discussed above, the Tribunal conducted a de novo review. It rejected the credibility of the Applicant’s material claims to fear harm. Hence, it was not necessary for it to address relocation
The issues raised in the submission dated 5 January 2017 do not establish jurisdictional error.
The Untranslated Documents Issue
One other issue emerged from the material filed by the Applicant in these proceedings. Annexed to his affidavit of 27 March 2017 were what were described as translated copies of three documents in Bengali and an English language notarial certificate and power of attorney relating to a 1965 exchange of land. These were said to have been provided in support of his claims.
However, beyond a general assertion that the Tribunal ignored or did not consider all relevant documents the Applicant provided, there was no explanation of the relevance of these documents to the grounds of review.
At the hearing I asked the Applicant about the documents annexed to his affidavit. The extract from the English language power of attorney and the notarial certificate in relation to an exchange of land in 1965 were said to relate to the Applicant’s father’s land. These were provided to the Department. They are referred to in the Tribunal’s decision. No issue of even arguable jurisdictional error is apparent in in relation to such material. The Tribunal did not accept the Applicant’s claim about his father’s land being confiscated, but it accepted that he owned land. These 1965 documents did not have to be addressed further in that context.
The other documents attached to the Applicant’s affidavit of 27 March 2017 appear on their face to be translated copies of a document referring to events of 4 January 2013 but dated 5 January 2013 and 5 March 2013 and headed “Complaint” (the complaint); a First Information Report dated 5 January 2013 (the FIR); and a “General Diary” entry dated 28 January 2013 (the general diary).
The translated “Complaint” addressed to the officer in charge at a police station in Bangladesh refers to a complaint of 5 January 2013 reflected in the translated FIR described below. It is also described in the translation as a “belated” complaint about events of 4 January 2013 because of a failure “to compromise the matter locality (sic)”. It accuses six named persons who were said to have gone to the fishery on 4 January 2013 with four or five others, armed with weapons, a bomb and a fish catching tool. It complains that these people became aggressive catching fish, held the Applicant at “weapon point”, demanded money and threatened his life because he prevented them from catching fish. It also complains that these people set off a bomb and set fire to a guard hut.
The complaint is dated 5 January 2013, but also bears a date of 05/03/2013 above a reference to the Judge in charge at a Bangladeshi District Court. The complaint is marked as translated and authenticated on 1 March 2017. This was after the Tribunal decision of 12 June 2016.
The translation said to be of an FIR dated 5 January 2013 is also stamped and marked as translated and authenticated on 1 March 2017. This report refers to a complaint on 5 January 2013 in the name of the Applicant’s father.
The “general diary” entry appears to be a request to the police dated 28 January 2013. It is stamped as translated and authenticated on 27 March 2017. It records a request to a police officer to take legal action and to enter as “general diary” a complaint that the complainant (described as a person with the name of the Applicant’s father) filed dated 5 January 2013 about “confliction, extortion and bomb blast with a fishery run under [his] son”. It also states that people had come to the complainant’s home on 27 January 2013, burnt a pet dog, blasted two bombs and threatened to kill the complainant’s son if they did not “withdraw the case”.
The Applicant claimed to the court that he gave these translations to the Tribunal. However, as indicated, the “translations” attached to the Applicant’s 2017 affidavit each bear date stamps that post-date the Tribunal decision. There are no other translations of police reports in evidence.
The Courtbook does contain three untranslated documents which were provided to the Department (although they are not referred to in the Applicant’s protection visa application, his supporting statutory declaration or in his later Tribunal application). It is not in dispute that these are the documents in Bengali which the Applicant claimed were police reports.
However, the delegate and the Tribunal each stated in their reasons that as the Applicant had not provided any English translations, they each placed no weight on these documents. As indicated, in its decision the Tribunal addressed the Applicant’s documentation as follows:
The applicant has provided… documents in Bengali which he claimed were in relation to his family’s move from India to Bangladesh and police reports but as he has not provided any English translations of these documents the Tribunal is unable to place any weight on these documents.
In these circumstances (and given that the Applicant claimed to the Tribunal that his father had lodged complaints with the police after the claimed January 2013 incidents) an issue arose as to whether there was any evidence that the Applicant had provided any translations of police reports said to relate to the claimed January 2013 incidents to the Tribunal, as he maintained to the court.
I also raised with counsel for the First Respondent the need to consider the legal consequences if such translations had not been provided to the Tribunal (having regard to the fact that the Tribunal gave no weight to the untranslated documents). The hearing was adjourned and the parties were given the opportunity to make further submissions in this respect.
When the hearing resumed, counsel for the Minister advised that a review by the Minister’s solicitors of the departmental and Tribunal files in this matter had found no evidence that the Applicant had provided any English language translations of Bengali language documents to the Tribunal. Further inquiries were made of the Tribunal. A Tribunal registry officer was said to have undertaken a review of the Tribunal’s paper and electronic files and to have confirmed to the Minister’s solicitors that there was no evidence that any such translated documents were provided to the Tribunal by the Applicant or his representative at any time.
While it would have been preferable for such information to be supported by affidavit evidence, what is clear is that the translated documents the Applicant now seeks to rely on (which are simply described in his affidavit of 27 March 2017 as “additional documents in support of my claim”) bear translation and authentication stamps that are dated 1 March 2017 or 27 March 2017. These documents therefore post-date the decision of the Tribunal by approximately nine months and could not have been provided to the Tribunal before its decision. When I raised this with the Applicant, he did not address this issue. Insofar as the Applicant now seeks that the court take the translations into account in support of his factual claims, he seeks impermissible merits review.
The Applicant has not provided any evidence or explanation in support of the claim he now makes that he provided any other translations of Bengali police reports to the Tribunal. The inquiries made by the Minister’s solicitors, including with the Tribunal, reveal no such documents. The Bengali language documents are reproduced in the Courtbook. Neither the delegate nor the Tribunal made any mention of any translated copies of the Bengali documents having been provided by the Applicant at any time.
The Applicant had the assistance of a migration agent when he sought review by the Tribunal. The application form invited him to provide additional documentation (with translations). The lodged application form did not refer to any attachments. Nor did the pre-hearing email or attached submission to the Tribunal. The hearing record is marked that no documents were provided, except a photocopy of the Applicant’s driver’s licence and a drawing by the Applicant of the BNP flag made during the hearing (which is in the Courtbook).
There is no transcript of the Tribunal hearing in evidence, but while the Applicant initially suggested that he gave the Tribunal these translations during the hearing, he ultimately stated that he gave the Tribunal English language translations of these documents after the Tribunal hearing.
However, the Applicant’s post-hearing submission to the Tribunal made no reference to any translated documents. Rather, it was simply claimed that the Applicant’s father had lodged complaints with the police after both January 2013 incidents, but that no actions were taken because the AL controlled the police. This submission quoted the part of the delegate’s decision record that stated that while the Applicant had provided documents he claimed were police reports supporting his claim, as no translations had been provided, the delegate placed no weight on these documents. The submission did not address this aspect of the delegate’s decision. It did not suggest that translations had been or were being provided to the Tribunal. The submission attached “country information on Biharis in Bangladesh and a printout from the internet of security grills (sic) used on windows, doors and gates in Bangladesh”. The Tribunal addressed such material in its decision.
I am not satisfied that the Applicant provided the Tribunal with the translations that post-dated the Tribunal decision. Nor am I satisfied that he (or his migration agent) gave the Tribunal any other translations of the material in Bengali consisting of the documents at pages 69 to 71 in the Courtbook or any other translations of police reports supporting his claims.
Insofar as the Tribunal understood that the Applicant claimed that some of the untranslated documents he had given to the Department were in relation to his family’s move from India to Bangladesh, the translated documents attached to his affidavit of 27 March 2017 do not fit this description. It appears that this may have been intended to be a reference to the English language 1965 power of attorney and notarial certificate. The Tribunal accepted that the Applicant’s family were from India and considered his claims in that respect.
I have considered the implications of the fact that the Tribunal found that the Applicant had provided documents in Bengali which he claimed were police reports “but as he has not provided any English translations of these documents the Tribunal is unable to place any weight on these documents”.
The Minister addressed the issue of whether the Tribunal was obliged to obtain translations of the untranslated material provided to the Department and/or to otherwise make further inquiries and/or whether the Tribunal had failed to have regard to evidence such as to give rise to a jurisdictional error. The Applicant was also given, but did not take, the opportunity to file submissions in this respect.
As the First Respondent submitted, the Tribunal is under no general or unqualified duty to obtain a translation of foreign language material furnished by an applicant. In Cabal v Minister for Immigration & Multicultural Affairs [2001] FCA 546 the Full Court of the Federal Court made the following observations at [25]:
There may be occasions in which the RRT is under an obligation to obtain a translation of a particular document which is in a foreign language and whose relevance has been explained to the RRT. However, the primary judge was correct when he said, as a general proposition, at [46] that the RRT “is not required to translate material in a foreign language” or “consider large volumes of material whose relevance is not explained”. Its failure to do so will not mean that it failed to consider or review an application in accordance with s 414(1) of the Act or s 54 of the Act, if applicable, when it has otherwise dealt with all material considered by it to be germane to its task of reviewing the decision of the delegate. In the present case the additional material was voluminous (including 19 textbooks in Spanish) and its relevance unexplained.
The decision in Cabal was considered by the Full Court of the Federal Court in X v Minister for Immigration and Multicultural Affairs [2002] FCAFC 3; (2002) 116 FCR 319. A majority of the Court (Gray [49]-[54] and Moore JJ at [26]-[31]) held that while there is no general duty to obtain a translation of documents, the Tribunal in that case fell into jurisdictional error by refusing to consider untranslated diary entries provided by the applicant merely because they had not been translated into English in circumstances where the applicant’s diary was the only document he had tendered; it concerned his involvement in political activities in Burma during a confined period; and it had been provided to the Tribunal after the hearing, together with a cover letter informing the Tribunal that the applicant had managed to obtain his old diary from Burma regarding his involvement with the National League for Democracy.
In those particular circumstances, Gray and Moore JJ were of the view that the Tribunal’s failure to take into account the contents of the untranslated diary (absent any English translation) without putting the applicant on notice that it would adopt that course, amounted to a failure to have regard to relevant material in circumstances where, if the Tribunal had accepted the entries as genuine, that may have affected its conclusion that the applicant did not have a well-founded fear of persecution. It was, however, observed that the weight to be given to those diary entries was a matter for the Tribunal. In dissent, O’Loughlin J observed (at [44]) that “[t]here is room for a variety of views – so much so that I do not think it appropriate for this Court to lay down inflexible guidelines”.
The approach taken by the majority in X is to be seen in light of subsequent Federal Court decisions considering different factual circumstances. At first instance in S14/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1153 at [49] (affirmed as S14/2002 v Refugee Review Tribunal [2004] FCAFC 171), Moore J acknowledged that, as discussed in X at [25], circumstances could arise where the failure of a Tribunal to obtain a translation of a document (at least where it failed to inform the applicant who had furnished the untranslated document that it did not propose to rely on it because it was not translated and thus denied the applicant an opportunity to explain its contents), would result in a denial of procedural fairness. However, relevantly, his Honour also stated at [49] that “generally the Tribunal is not obliged to obtain a translation of documents furnished by the applicant in a foreign language at least in circumstances where the Tribunal ascertains the gist of the material if it is significant”.
This approach has been adopted in later authorities. In SZLSW v Minister for Immigration and Citizenship [2008] FCA 1321; (2008) 103 ALD 580 Rares J referred with approval (at [16]) to the findings of the trial judge that on the Tribunal’s description of what had happened at the hearing (the only evidence in that respect) the proposition which the visa applicant wished to draw from untranslated documents (newspaper articles) had been fully presented to the Tribunal with the assistance of an interpreter and that there was no evidence that there was anything else relevant in the articles upon which he relied. Rares J stated that in those circumstances:
…the gist of what the appellant wished to draw from the articles had been put to the tribunal and that there were no obligations of fairness that required it to take the matter any further, in particular to have a translation of the articles.
As Flick J remarked in SZMXS v Minister for Immigration and Citizenship [2009] FCA 1543 at [25], even where a foreign language document was not translated into English “there may be no error where the Tribunal in fact takes into account a point sought to be made by a claimant in reliance upon untranslated documents”.
Any asserted obligation on the part of the Tribunal to obtain English translations of foreign material supplied by an applicant must be assessed having regard to the particular facts and circumstances of the individual case. I have had regard to the facts and circumstances of this case insofar as possible on the evidence before the court.
As indicated, in support of his protection visa application, the Applicant provided the Department with three documents written in a foreign language which, it is not in dispute, is Bengali.
The delegate referred to the untranslated documents in the decision record of 9 September 2014 as follows:
The applicant also provided documentation regarding his family’s move from India to Bangladesh and documents he claimed were police reports supporting his claims. As no translations have been provided, I place no weight on these documents.
Elsewhere in his reasons the delegate recorded the Applicant’s claim that his father had lodged complaints with the police after both incidents, but that no actions were taken because the AL controlled the police. The delegate accepted that the events of January 2013 had occurred, including finding that the second incident was primarily due to the Applicant’s father having lodged a complaint with the police about the first incident.
Nonetheless, the delegate’s approach to the untranslated documents brought to the attention of the Applicant (who had a migration agent) the need to provide translations. This need was reinforced in the printed Tribunal review form which requested translations of any supporting documentation. As indicated I am not satisfied that any translations of police reports were provided to the Tribunal.
The hearing invitation also reminded the Applicant that any documents “should be in English or be translated by a NAATI accredited translator”.
As the Applicant has not provided the court with a transcript of the hearing before the Tribunal, there is no evidence before the court as to what questions, if any, the Tribunal may have directed at him with respect to the untranslated documents or whether the Tribunal put him on further notice as to the course it would adopt. However, the Applicant had already been put on notice (by the delegate’s decision, the Tribunal application form and the hearing invitation) of the need to provide translations. He has made no claim in these proceedings that he was not on notice that the Tribunal may not give weight to untranslated documents.
The Applicant made no reference to such documents in his
pre-hearing submissions to the Tribunal dated 12 February 2016 (prepared by a solicitor).As indicated, in his post-hearing submission to the Tribunal, the Applicant quoted at length from the decision of the delegate and provided direct “answers” to a number of the observations and findings made therein. However, while he set out in full the delegate’s observation regarding his failure to provide English translations of the documents provided (described as “documents he claimed were police reports supporting his claims”) and the delegate’s finding that as no translations were provided he placed no weight on those documents, the Applicant did not make any submissions on that topic or otherwise place any reliance at all upon the untranslated documentation he had provided in support of his claims that his father had lodged complaints with the police. Nor was there any discussion in this submission of whether translations were provided or would be provided to the Tribunal.
There is no suggestion that the Applicant asked the Tribunal to obtain translations or that he sought further time to provide translations.
This is not a case in which there were apparent time constraints on the provision of translations. There is no evidence of any issue in that respect. The Applicant had approximately 17 months from the time of the delegate’s decision to provide translated copies to the Tribunal had he wished to do so.
As the First Respondent contended, these circumstances are relevant to this court’s assessment of both the importance of the documents themselves and also to whether the Applicant was denied procedural fairness by reason of the Tribunal’s treatment of his documentation.
It is apparent from the Tribunal’s reasons that it understood that the Applicant claimed that his father had reported the claimed January 2013 incidents to the police. It described the claims the Applicant made to the delegate and raised with him concerns about aspects of his claims, particularly inconsistencies in his evidence about whether or not the police actually responded to or investigated the complaint about the first incident.
It is plain from the Tribunal’s decision record that the Tribunal had ascertained the “gist” of the untranslated material provided to the Department by the Applicant. It not only noted that the Applicant had “provided documents in Bengali which he claimed were in relation to his family’s move from India to Bangladesh and police reports”, it also understood that the Applicant claimed his father had reported the January 2013 incidents to the police. While the Tribunal determined that it was not able to place any weight on the untranslated documents absent English translations, it otherwise considered the claims about complaints to the police by the Applicant’s father in relation to the claimed January 2013 incidents.
This is not a case in which the Tribunal had no evidence at all as to the content of the untranslated documents. As in WAMB v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCA 66 at [34] and SZQYA v Minister for Immigration & Anor [2012] FMCA 957 at [33], it had the benefit of the Applicant’s description of what was addressed in that material. It was plain from that description (as recorded by the Tribunal), together with the balance of the Applicant’s evidence, that the Applicant contended that the documents were documented complaints made by his father with respect to the alleged incidents of 4 and 27 January 2013. However, at the same time, the Applicant gave directly inconsistent evidence about the results of such complaints.
It has not been established that the Tribunal ignored or overlooked relevant material that was significant in the context of the Tribunal’s reasons in the sense considered in SZRKT. The Tribunal was aware of, and expressly adverted to, the untranslated documents. It was aware of the proposition sought to be drawn from those documents (the “gist” of the documents), namely that there had been reports to the police of two alleged incidents in January 2013. The Tribunal directly considered those contentions.
There is no evidence of any elaboration or explanation to the Tribunal by the Applicant of any particular relevance of the untranslated documents such that the Tribunal erred in failing to obtain translations. I note that (on the assumption for present purposes that the translations annexed to the Applicant’s affidavit of 27 March 2017 are in fact translations of the Bengali documents provided to the Department) the translations do not appear to support the claims that AL supporters carried out the claimed attacks or the claims that the motivation related to the Applicant’s support for the BNP. They refer to extortion and forcefully taking property and assert that the Applicant prevented the assailants from catching fish. However it was the motivation and identity of the claimed attackers that was of central relevance to the Applicant's claim to fear harm in the future. The untranslated documents cannot be said to have been so “significant” in the context of the Applicant’s claims and evidence that it was imperative that the Tribunal obtain translations. It was not unreasonable for the Tribunal to not give weight to the untranslated documents in addressing the credibility of the Applicant’s claims in circumstances where the Applicant had been put on notice of the need to provide translations, but did not do so.
It has not been established that the Applicant was denied procedural fairness by the Tribunal’s approach. He was on notice of the need to provide translated copies of the Bengali documents from at least the time of the decision in which the delegate indicated that he placed no weight on the untranslated documents as no English translations had been provided. The Applicant had the assistance of a solicitor/migration agent. The need for translations was reinforced in the review application form and the hearing invitation. It is
well-established that the Tribunal is not required to make the Applicant’s case for him. The Applicant had many opportunities to present his case. In effect, he made a choice not to provide translations. There is no suggestion that he asked the Tribunal to obtain translations.Moreover, nothing in the Tribunal’s decision record supports any contention that there was procedural unfairness to the Applicant or legal unreasonableness in the manner in which the Tribunal relied on inconsistencies in his evidence in support of its adverse credibility finding. The Tribunal did not fail to deal with the gist of the claims evidenced by the untranslated material before it (see SZWCC v Minister for Immigration and Border Protection [2015] FCA 1402).
As the First Respondent contended, it was not incumbent upon the Tribunal in this case to initiate its own inquiries into the untranslated documents provided by the Applicant. The functions, powers and duties of the Tribunal are set out in Part 7 of the Act. In the exercise of its review function, the Tribunal may obtain such information as it considers relevant. In this sense, the Tribunal has an inquisitorial function. However, as the High Court confirmed in Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429 at [1], that does not “impose upon it a general duty to undertake its own inquiries in addition to information provided to it by the applicant and otherwise under the Act”. The present case does not fall into that exceptional class of case in which the circumstances give rise to an obligation on the Tribunal to make an “obvious inquiry” with respect to a “critical fact” the existence of which is easily ascertained, as discussed in SZIAI at [25].
The Tribunal’s decision turned on adverse credibility findings based upon a number of identified deficiencies in the Applicant’s evidence. It is not apparent on the material before the court that obtaining translations of the Bengali language documents in question would have addressed the “critical fact” of whether claimed incidents were initiated by AL members and supporters because of the Applicant’s involvement in the BNP. Nor can it be said to have been obvious that obtaining translations could have overcome the numerous concerns the Tribunal held about the Applicant’s evidence with respect to his role in the BNP, his asserted involvement in election campaigns and his poor knowledge of the BNP flag, as well as all the omissions and inconsistencies that attended his account of the motivations for and what occurred during alleged January 2013 incidents or his failure to mention at an earlier time the alleged June 2014 extortion and the asserted confiscation of his father’s properties.
There is also no evidence that the Applicant placed any particular reliance or emphasis upon the untranslated documents at either his interview with the delegate, during the Tribunal hearing or in written submissions. Had those documents been centrally important to the Applicant’s claims, one would expect that he or his agent would have raised that issue in some form with the Tribunal (see SZWCC at [38] per Jagot J). In the absence of a transcript there is no evidence to that effect.
Notably, the Applicant did not rely upon the police reports in the post-hearing submissions that he provided to the Tribunal (as set out at above), despite quoting in full the delegate’s finding in this respect and otherwise providing comprehensive answers to various aspects of the delegate’s decision. Again, had those untranslated documents been central to the Applicant’s claim, one would have expected that he would have referred to them in that context.
It has not been established that the content of any of the untranslated documents was in itself a “critical fact” in the context of the Tribunal’s reasons such as to enliven a duty to obtain a translation. It was open to the Tribunal to proceed on the basis of the information before it in observing the provision of, but according no weight to, the untranslated documents and otherwise rejecting the material claims made by the Applicant.
As indicated, this is not a case in which it was clear that recourse to English language translations of the documents in question could have overcome the concerns that the Tribunal held in relation to the Applicant’s other evidence and his credibility as a whole, insofar as he relied on these incidents in support of his claims to fear AL members or supporters. Having regard to the nature of the Applicant’s claims, it has not been established that the Bengali language documents provided to the Tribunal were “so cogent and important to the exercise of its function” that the Tribunal’s failure to place any weight on those documents or to obtain translations demonstrates jurisdictional error.
As no jurisdictional error has been established on any basis raised by the Applicant, the application should be dismissed.
I certify that the preceding two hundred and forty-eight (248) paragraphs are a true copy of the reasons for judgment of Judge Barnes.
Date: 9 April 2019
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