BPS16 v Minister for Immigration
[2019] FCCA 411
•26 February 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BPS16 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 411 |
| Catchwords: MIGRATION – Protection (Class XA) visa – review of decision of the Administrative Appeals Tribunal (AAT) – where the Applicant seeks impermissible merits review – no basis for the Applicant’s assertion that the AAT was biased – ground of denial of procedural fairness not made out – where the AAT understood and applied the real chance test – where the AAT considered the Applicant’s claims against the complementary protection criterion – AAT was not required to put independent country information to the Applicant for comment – adverse credibility findings of the AAT were legally reasonable and had a logical, rational or probative basis – application dismissed with costs. |
| Legislation: Migration Act 1958 (Cth), ss.36, 65, 424A, 476 Federal Circuit Court Rules 2001 (Cth), sch.1, pt.3 |
| Cases cited: Abebe v Commonwealth of Australia (1999) 162 ALR 1 BJB16 v Minister for Immigration and Border Protection [2018] FCAFC 49 |
| Applicant: | BPS16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1379 of 2016 |
| Judgment of: | Judge C.E. Kirton QC |
| Hearing date: | 7 May 2018 |
| Date of Last Submission: | 7 May 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 26 February 2019 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the First Respondent: | Mr Goodwin |
| Solicitors for the First Respondent: | Sparke Helmore Lawyers |
| Solicitors for the Second Respondent: | The Second Respondent filed a submitting notice save as to costs |
ORDERS
The Application is dismissed.
The Applicant pay the First Respondent’s costs of the proceeding fixed in the sum of $5,500.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1379 of 2016
| BPS16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant is an asylum seeker from Bangladesh who arrived in Australia on 5 May 2013. On 27 October 2014 a delegate of the First Respondent (Delegate) refused to grant the Applicant a protection visa under s.65 of the Migration Act 1958 (Cth) (Act).
On 2 June 2016 the Administrative Appeals Tribunal (Tribunal) affirmed the decision of the Delegate. This is an application under s.476 of the Act to review the decision of the Tribunal.
Synopsis
I have determined that each of the four grounds of the application should be dismissed with costs of $5,500 to be paid by the Applicant to the First Respondent (Minister).
Background
The Applicant is a citizen of Bangladesh, was born on 7 July 1988 and is now 30 years old.
The Applicant departed Bangladesh in March 2013 and travelled to Australia aboard a boat that departed from Indonesia and was intercepted by Australian Authorities on 4 May 2013. The vessel was deemed to be unseaworthy and its passengers were disembarked and transferred to Darwin on 5 May 2013[1].
[1] Court Book (CB) 76, at [3].
The Applicant applied for a Protection (Class XA) visa (Visa) on 13 August 2013.
The Applicant claimed to fear harm as a supporter of the Bangladesh National Party (BNP) and set out the primary basis for that claim in a Statutory Declaration that accompanied his Visa application (Statutory Declaration)[2]. The Applicant stated that he had a number of prominent family members involved with the BNP and that he had become more politically active over the years preceding his departure from Bangladesh. In particular the Applicant said that from 2010 to 2013 he had owned a shop and paid extortion money to the Awami League, the opposing party to the BNP. The Applicant said that he arranged a protest against making these extortion payments and in retaliation in March 2013, his shop and many others were burnt down by supporters of the Awami League. The Applicant stated that the Awami League supporters tried to physically beat him but that he managed to escape without injury. The Applicant subsequently fled to Dhaka, where he heard Awami League members were at his hotel asking for him. The Applicant then left Bangladesh for Australia.
[2] CB 56-58.
The Delegate interviewed the Applicant on 14 October 2014 and on 27 October 2014 decided not to grant the Visa (Delegate’s Decision)[3].
[3] CB 75-89.
The Delegate’s reasons for decision indicate that the Delegate made adverse credibility findings against the Applicant based on his vague evidence, a number of inconsistencies in the evidence and the implausibility of some of that evidence. The Delegate accepted that the Applicant was a supporter of the BNP as a result of his family connections and that he had paid extortion money to people associated with the Awami League. The Delegate did not accept that the Applicant organised a protest, that his shop had been burnt down, that anyone was assaulted or that his family was subsequently extorted or threatened.
Procedural History
On 31 October 2014 the Applicant filed an application for review of the Delegate’s Decision in the Refugee Review Tribunal (now the Administrative Appeals Tribunal)[4] (Tribunal). The hearing took place on 17 May 2017. Following the hearing the Applicant provided the Tribunal with a letter from the President of the BNP in Upazila-Chowgacha, in the Jessore District (BNP President’s Letter)[5].
[4] CB 90-97.
[5] CB 118.
The Tribunal affirmed the Delegate’s Decision on 2 June 2016 (Tribunal Decision)[6]. The Tribunal Decision commenced by setting out the law relevant to the Visa application and the claims made by the Applicant, which were made primarily in the Statutory Declaration[7]. The Tribunal referred to a new claim raised by the Applicant at the hearing, that the Applicant’s younger brother and father were in hiding due to threats from the Awami League[8].
[6] CB 119-129.
[7] Tribunal Decision at [4]-[13].
[8] Ibid., at [12]; CB 123.
The Tribunal found that the Applicant was a citizen of Bangladesh[9]. In considering the Applicant’s claims to fear harm, the Tribunal made the following finding:
The applicant’s evidence on central aspects of his claims was variously vague, unsubstantiated, as well as often inconsistent with his earlier evidence… the Tribunal is not satisfied that the claims of the applicant are credible[10].
[9] Ibid., at [13]; CB 123.
[10] Ibid,, at [15]; CB 123.
The reasons for that finding were:
a)The Applicant provided inconsistent evidence about the shop he said that he operated in Chowgacha. The Applicant gave conflicting evidence before the Delegate and the Tribunal concerning the number of rooms that comprised the shop and how many shops were on the relevant street in Chowgacha[11].
[11] Ibid., at [16]; CB 124.
b)The Tribunal found that the Applicant gave inconsistent evidence about the extortion money paid to the Awami League and his business turnover. The Applicant also gave inconsistent answers to the Delegate and the Tribunal in relation to the period that he had paid extortion money, the amount paid and the number of people who would attend at his shop to demand money. The Tribunal did not accept that the Applicant had a satisfactory explanation for these inconsistencies[12].
[12] Ibid., at [17]; CB 124.
c)The Tribunal considered that there were inconsistencies in the Applicant’s evidence in relation to his reports to police and his claims of harm prior to March 2013[13]. At the Tribunal hearing the Applicant said that he had been physically assaulted by supporters of the Awami League three months prior to the protest and the burning of his shop in March 2013. The Tribunal noted that these claims had not been previously made in the Visa application or before the Delegate. It was not accepted by the Tribunal that the Applicant reported any threats from the Awami League to the police or that he was ever harmed as claimed[14].
[13] Ibid., at [18]; CB 124.
[14] Ibid., at [18]; CB 125.
d)The Tribunal found that the Applicant’s evidence concerning the protest that he said he organised was also “[…] vague and lacked detail” and was inconsistent with his previous evidence[15]. There were discrepancies concerning how many shopkeepers were involved, how many Awami League supporters attacked them and the injuries suffered by the other shopkeepers. The Tribunal also considered the BMP President’s letter and noted the discrepancy in the dates provided in relation to the protest. The Tribunal concluded that it did not accept that the Applicant was involved in organising or attended a protest or that his shop was burnt down by the Awami League in March 2013.
[15] Ibid., at [19];CB 125.
e)The Tribunal found that the Applicant gave conflicting details of events immediately following the protest regarding:
i)The location of the Hotel where he stayed in Dhaka; and
ii)The circumstances in which supporters of the Awami league came looking for him.
The Tribunal did not accept that the Applicant was required to flee Dhaka in 2013 or that he was pursued by the Awami League[16].
f)The Tribunal did not consider that the Applicant’s claims of his association with the BNP were credible. The Applicant told the Tribunal that he was a member of the BNP, whereas he had stated on the Statutory Declaration that he was only a supporter. The Applicant gave unsatisfactory evidence concerning how a person became a member of the BNP and the circumstances of his membership. Further, the Applicant was unable to recall the main principles of the BNP or describe the BNP flag[17]. The Tribunal concluded:
[…] the Tribunal would expect someone in the applicant’s claimed circumstances, who has been interested in the BNP since he was young and whose father was a member, and whose uncles and friends where members, and who attended meetings often, would have more detailed knowledge of the BNP than the applicant displayed during the hearing[18].
The Tribunal therefore did not accept that the Applicant was a supporter of the BNP or involved in meetings, political discussions, rallies or electioneering for the BNP[19].
g)The Tribunal found that the Applicant had manufactured claims of threats of harm to his family since he had departed Bangladesh[20]. The Applicant told the Tribunal that he could obtain documents in support of his evidence regarding threats of harm to his father and brother. The Tribunal afforded the Applicant an opportunity to provide these documents after the hearing, however none were submitted to the Tribunal by the Applicant. The Applicant also failed to satisfactorily explain the lateness of raising these new claims[21].
[16] Ibid., at [20]; CB 125.
[17] Ibid., at [21] and [22]; CB 126.
[18] Ibid., at [22]; CB 126.
[19] Ibid., at [22]; CB 127.
[20] Ibid., at [23]; CB 127.
[21] Loc. cit.
On the basis of these credibility findings, including specific findings of fact, the Tribunal found that the Applicant was not of adverse interest to the Awami League at the time he left Bangladesh and that he had not paid extortion money or organised a protest of shop owners. The Tribunal therefore did not accept that the Applicant was of adverse interest to anyone in Bangladesh[22].
[22] Ibid., at [24]; CB 127.
The Tribunal did accept that the Applicant may have family members involved in the BNP, however based on its consideration of country information, it found that supporters or members of political parties are not generally at risk of harm. The Tribunal considered that there was no real chance that the Applicant would suffer serious harm given his low level support for the BNP[23].
[23] Ibid., at [25]; CB 127.
The Tribunal then considered complimentary protection. As a number of critical aspects of the Applicant’s claims were rejected, in particular the claim that the Applicant was of adverse interest to the Awami League, the Tribunal rejected the claim that the Applicant faced a real risk of suffering significant harm[24].
[24] Ibid., at [27]-[32].; CB 128.
The Tribunal therefore affirmed the Delegate’s Decision not to grant the Applicant the Visa.
The Present Proceedings
The proceeding was filed in this Court on 29 June 2016 (Application). The grounds of application are as follows (Grounds of Application):
(Ground 1) (Errors and omissions in original).
1.In making decision, the Tribunal acted without jurisdiction or in excess of jurisdiction when it failed to take into account the relevant considerations.
Particulars
·The applicant never told in the interview he was not an active member of BNP party. He could not provide the membership card because it is not a standard procedure to give away membership cards in Dhaka as there are millions of members of BNP and are more regarded for their active participation in group activities. This can be verified if inquiries are made in the local offices of BNP. But the tribunal instead choose just to look up at their website and make decision in biased opinions.
·The tribunal has provided information about a website to check information about BNP membership whereas the applicant has never given access to such Website from the party and did not knew how to use computers at that time. Moreover, this is a very rare and not even heard of that members go online and fill up any sort of forms to be a member. They are chosen locally by the local team leaders based upon the dedication and time invested in the party.
·The tribunal unreasonably raised doubt over the applicant’s involvement with the BNP Group with which his two uncles were both dominant and active leader. The Department and the Tribunal misunderstood or misconstrued the facts. Migration advisor for the Applicant in his submission very clearly clarified the applicant’s involvement with the group as a member, Applicant’s activities and role in the Party. Applicant’s Uncle was an active and long-time member of the BNP party.
·Applicant claims that the ruling party Awami League is a Violent-Criminal and corrupt Groups in Bangladesh which are active. As the applicant stated earlier that Applicant’s shop was attacked with several other shops and burned down.
·And for the safety of his and his family’s life from this Awami league Group of Criminals The applicant together with his brother and father had to flee. When became more worst, the applicant decided to leave Bangladesh.
·The applicant argues that the Department and the Tribunal asked many irrelevant questions to test the credibility of his evidence.
·The Department and the Tribunal found inconsistency because the questions were asked in such a manner for which the applicant was not prepared. He was nervous and confused at the time of making Statutory Declaration and also at the time of interview with the Department and Lawyers who helped him to prepare the application.
·The Tribunal raised the question about telling these things now, and raised the question why he did not mention earlier in the Statutory Declaration with the Original Application. The applicant did not remember each and every detail as it happened a few years back and was in a very severely stressed pot mental state.
·The Department has accepted that he was very confused. He was himself not understanding what answer he was giving for which questions. The Department told the applicant first understand the question then give answer. The applicant was totally nervous.
·The applicant believes he was denied procedural fairness when the hearing was conducted not freely and fairly.
(Ground 2) (Errors and omissions in original).
2.The tribunal made a jurisdictional error when it made decision in which the finding of reasons is confused. The Tribunal did not apply Real Risk Chance Test used in the Refugee Convention under Australian law.
Particulars
·The applicant claims that the Tribunal and the Department formed the opinion based on the limited information about the possible harm to the applicant. The Tribunal ignored all other independent information about all other the shop attacks together with the applicants on the Applicant’s village. The tribunal made unreasonable doubt about applicant’s claims and said in reasoning that his shop was never burned down by a Awami league without any substantial evidence provided yet they accept the fact that the applicant’s shop was burnt down. The applicant confusion about the attack dates being 24th march instead of 6th march has given more importance rather than credibility to the fact that the applicant did cited that it happened in March as per the BNP letter given as evidence.
·The Department and the Tribunal made opinion with the Closed mind. The applicant claims that he left Bangladesh because of continuous attacks and torture by the members of the Awami Group. He had no protection from the local authorities because his attempt to get help from the local police failed because as Awami league is ruling as Government since 2009. And they are corrupt and exercising wrong use of powers in all authorities in Bangladesh. They have not given an election which was supposed to be in 2013 and since then everyone is scared of their group members and supporters. This information was never checked by the tribunal.
·The tribunal did not account any evidence of real chance of risk despite the facts his father and brother were injured in violent protest, had falsely charged by the police and also had to flee because of threats from Awami league.
(Ground 3) (Errors and omissions in original).
3.The Tribunal made a jurisdictional error when it did not consider his claims under the Complimentary Protection Clauses.
Particulars
· The applicant claims he would satisfy the criterion for protection under the Complimentary protection arrangements as there are substantial grounds to believe there is a real risk that would suffer significant harm on return to Bangladesh. The applicant claims that the Tribunal blindly follow the decision of the Delegate.
· The Tribunal did not consider that how the applicant came to Australia by Boat taking high risk of life. The tribunal ignored intentionally the relevant consideration related with complimentary protection set out in s.36(2)(a). He is subjected to a significant harm as severe as being attacked and killed by Awami league members.
· The tribunal ignored real test of persecution and made decision with closed mind.
(Ground 4) (Errors and omissions in original).
4. Jurisdictional error has been made.
The tribunal doubts the applicant’s claim without substantive evidence and reach mistaken conclusion.
Particulars
·The Tribunal failed to put to the applicant for comment the independent country information on which it relied in making its decision.
·The Tribunal erred by making findings without supporting evidence and findings which were illogical and inconsistent.
·The Tribunal failed to consider that if the applicant is deported from Australia he will be at risk of suffering persecution within the meaning of the 1951 Convention relating to the status of Refugees
The Application was supported by an affidavit deposed to by the Applicant on 28 June 2016 and filed on 29 June 2016 (Affidavit). The Affidavit annexed a copy of the Tribunal Decision.
The Second Respondent filed a Notice of Address for Service on 25 July 2016. The Second Respondent submits to the orders of the Court save as to costs.
The response of the Minister was filed on 4 August 2016 (Response). The Response seeks orders that the Application be dismissed and that the Applicant pay the Minister’s costs of the proceeding. The Response contends that the application for judicial review does not establish any jurisdictional error in the Tribunal Decision.
On 7 December 2016 Orders were made for the Applicant to file any amended application, any affidavits and written submissions 28 days before the final hearing. The Applicant did not file any further documents. The Minister filed written submissions on 23 April 2018.
Consideration
Ground 1
In this ground the Applicant claims that the Tribunal acted without jurisdiction or in excess of jurisdiction when it failed to take into account relevant considerations.
Most of the particulars to Ground 1 relate to merits review rather than judicial review. It is well established that these are not proper grounds of judicial review. In Abebe v Commonwealth of Australia[25] Gummow and Hayne JJ said:
[the] contention… is self-evidently a contention that depends upon the court reviewing the merits of the tribunal’s decision rather than the process by which it arrived at its conclusion. Such a contention could not be advanced as a ground for the grant of prerogative relief (see, for example, Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; 136 ALR 481 per Brennan CJ, Toohey, McHugh and Gummow JJ)[26].
[25] (1999) 162 ALR 1.
[26] Ibid., at [195].
The particulars in dot points 1 to 9 in Ground 1 each seek impermissible merits review.
The Applicant also seeks to place further evidence before the Court as follows:
a)Complaint is made about the manner by which the Tribunal dealt with the evidence relating to his membership of the BNP. In dot point 2 the Applicant gives evidence about whether persons access the membership form on the internet. Paragraph 1 of the Affidavit also gives evidence about the availability of membership cards.
b)In dot points 4 and 5 the Applicant gives evidence about his fears and his family’s fears of the Awami League. Paragraphs 2 and 4 of the Affidavit also give evidence about this matter and the claim that the Applicant’s father and brother are in hiding.
To the extent that the Applicant has sought to place evidence before the Court relating to the matters in the preceding paragraph, the evidence is irrelevant and does not establish jurisdictional error.
In dot point 1 the Applicant asserts that the Tribunal could have verified the procedure for the grant of membership cards in the BNP. The Applicant complains:
This can be verified if inquiries are made in the local offices of BNP. But the tribunal instead choose just to look up at their website and make decisions in biased opinions (sic).
In Minister for Immigration and Citizenship v SZAI & Anor[27] the High Court (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) said:
The duty imposed upon the tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, apply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error[28] (footnotes omitted).
[27] (2009) 259 ALR 429.
[28] Ibid., at [25].
In this case the Tribunal was under no duty to make such inquiry and there was no obvious inquiry about a critical fact, the existence of which was easily ascertained. The Tribunal was entitled to rely on the Constitution of the BNP in relation to how a person became a member of the BNP. The Tribunal gave the Applicant an opportunity to produce a membership card and instead he produced the BNP President’s Letter. The Tribunal noted that the BNP President’s Letter did not explain why the Applicant had stated in his Statutory Declaration that he was a supporter of the BNP and not a Member[29].
[29] Tribunal Decision at [21]; CB 126.
Insofar as the Applicant claims that the Tribunal was biased in relying on the website of the BNP in making its findings, the weight to be given to relevant country information is a matter for the Tribunal itself. In CED15vMinister for Immigration and Border Protection [30] Thawley J said:
The weight that the Tribunal accords items of country information, when assessing the country information, is a matter for the Tribunal as part of its fact-finding exercise: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11][31].
[30] [2018] FCA 451.
[31] Ibid., at [79].
There is therefore no basis for the Applicant to assert that the Tribunal was biased in relying on the website of the BNP.
In dot point 3 the Applicant asserts that:
The Tribunal unreasonably raised doubt over the applicant’s involvement with the BNP Group with which his two uncles were both dominant and active leader. The Department and the Tribunal misunderstood or misconstrued the facts […] (sic).
The High Court in Minister for Immigration and Citizenship v Li[32] said (Hayne, Kiefel and Bell JJ):
Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification[33]
[32] (2013) 249 CLR 332; [2013] HCA 18.
[33] Ibid., at [76].
The Applicant provided inconsistent evidence about whether he was a member of the BNP or not and he was unable to recall the main principles of the BNP or describe the BNP flag[34]. It was not unreasonable, in the context of legal unreasonableness, for the Tribunal to raise doubts about the Applicant’s involvement with the BNP and it did not misunderstand or misconstrue the facts in relation to that matter. The Tribunal had an evident and intelligible justification for its findings.
[34] Tribunal Decision at [21] and [22]; CB 126.
The Applicant asserts in dot points 7 to 10 that he was nervous and stressed and claims that the Tribunal denied him procedural fairness.
In BJB16 v Minister for Immigration and Border Protection[35] the Full Court of the Federal Court said:
[35] [2018] FCAFC 49.
Applicants who assert that their psychological condition deprived them of the “meaningful opportunity” required by s 425 of the Migration Act must establish more than the fact of the condition. They must also establish that their condition is such as to deny them the capacity to give an account of their experiences, to present argument in support of their claims, and to understand and respond to the questions put to them: SZMSA v Minister for Immigration and Citizenship [2010] FCA 345 at [20]-[25] and [32]-[35] (Gilmour J); SZNVW at [20] (Keane CJ).
[…]
Generally, it is insufficient for applicants to show no more than that a medical condition may have deprived them of the ability to put their case to best advantage[36].
[36] Ibid., at [43].
Therefore in order to establish jurisdictional error on the basis claimed in dot points 7 to 10, the Applicant is required to prove the fact of his condition as well as that the condition denied him the capacity to give evidence, make arguments and understand and respond to the questions put to him. The Applicant has not adduced such evidence and accordingly this claim is not made out.
For the foregoing reasons I find that Ground 1 should be dismissed.
Ground 2
In this ground the Applicant claims that the Tribunal made a jurisdictional error by not applying the real chance test.
In Chan Yee Kin v Minister for Immigration and Ethnic Affairs[37] McHugh J enunciated the real chance test as:
[…] if there is a real chance that the applicant will be persecuted, his fear should be characterised as “well-founded” for the purpose of the Convention and Protocol[38].
[37] (1989) 87 ALR 412.
[38] Ibid., at 446, (Mason CJ at 417 and Dawson J at 424).
In dot point 1 the Applicant asserts:
The Tribunal ignored all other independent information about all other the shop attacks together with the applicants on the Applicant’s village.
It is not clear what information the Applicant alleges the Tribunal ignored in relation to the protest and attack on the shopkeepers. The Delegate stated that he was unable to find any independent country information about the incident[39]. The Tribunal took into account the Delegate’s Decision[40].
[39] CB 81.
[40] Tribunal Decision at [9], CB 122.
Taking into account the allegations in the particulars as a whole, there is no basis for finding that the Tribunal’s conclusions in relation to the shop attacks were legally unreasonable, made with a closed mind or should have been the subject of further inquiries.
It is apparent from the Tribunal Decision that the Tribunal understood the real chance test and had regard to its application in its reasons[41].
[41] Tribunal Decision at [24] and [25], CB 127.
For the foregoing reasons I find that Ground 2 should be dismissed.
Ground 3
In this ground the Applicant claims that the Tribunal made a jurisdictional error when it did not consider the Applicant’s claims against the complementary protection criterion.
In dot point 1 the Applicant claims:
[…] that the Tribunal blindly follow the decision of the Delegate (sic).
In dot point 3 the Applicant claims:
The Tribunal ignored real test of persecution and made decision with closed mind (sic).
The Tribunal considered the complementary protection criterion in s.36(2)(aa) of the Act in the Tribunal Decision[42]. The Tribunal was entitled to rely on its findings in relation to the refugee criterion in finding that the Applicant was not owed complementary protection. In SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship[43] Robertson J said:
The factual basis of the claim under the complementary protection provisions was rejected by the Tribunal. Thus the claim as articulated under the complementary protection provisions failed. The claim could not succeed in light of the Tribunal’s rejection of the various causes in relation to which the appellant claimed he would be harmed, with or without detention[44].
[42] Tribunal Decision at [27]-[32], CB 128.
[43] [2013] FCA 774.
[44] Ibid., at [54].
Therefore, as the Tribunal had rejected the factual basis for the Applicant’s fear of harm, it was open to the Tribunal to find that the Applicant did not face a real risk of significant harm.
For the foregoing reasons I find that Ground 3 should be dismissed.
Ground 4
In this ground the Applicant claims that the Tribunal made a jurisdictional error in doubting the Applicant’s claim without substantive evidence and reached a mistaken conclusion.
In dot point 1 the Applicant asserts that the Tribunal failed to put to the Applicant for comment the independent country information on which it relied in making its decision. The Tribunal was not required to provide country information to the Applicant by reason of s.424A(3)(a) of the Act which provides:
424A (3) This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or another person is a member;
[…]
In dot point 2 the Applicant asserts that the Tribunal erred in making findings “without supporting evidence” and which were “illogical and inconsistent”. The Applicant has failed to provide particulars identifying which findings are claimed to have been made without supporting evidence. Further, the Applicant has failed to provide particulars identifying which findings are alleged to be illogical and inconsistent. As referred to in relation to Grounds 1 and 2, there is no basis for the Applicant’s assertion that the Tribunal’s findings were legally unreasonable, illogical or inconsistent.
In dot point 3 the Applicant asserts that the Tribunal failed to consider that if the Applicant was deported from Australia he would:
[…] be at risk of suffering persecution within the meaning of the 1951 Convention relating to the status of Refugees.
The Tribunal considered whether the Applicant would face persecution upon return to his home country and ultimately found, having considered the Applicant’s claims and evidence, that there was not a real chance he would face serious harm in Bangladesh[45].
[45] Tribunal Decision [24]-[26], CB 127-128.
In relation to inconsistencies in the Applicant’s evidence, the Tribunal highlighted these inconsistencies and explained in its reasons why it found certain explanations by the Applicant implausible or unconvincing. In particular, the Tribunal’s adverse credibility findings were legally reasonable and had a logical, rational or probative basis[46].
[46] DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2, at [30].
In Minister for Immigration and Border Protection v MZYTS & Anor[47] the Full Court of the Federal Court said:
The task could not be lawfully undertaken without a consciousness and consideration of the submissions, evidence and material advanced by the visa applicant most likely to give the tribunal an accurate picture of the ongoing circumstances on the ground […] for him if he were to be returned there[48].
[47] [2013] FCAFC 114.
[48] Ibid., at [38].
In this case the Tribunal considered the claims advanced by the Applicant in the Statutory Declaration, before the Delegate and during the Tribunal hearing with a “consciousness and consideration of the submissions, evidence and material advanced” by the Applicant. The Tribunal therefore completed its statutory task without failing, in a material way, to conduct the review.
For the foregoing reasons I find that Ground 4 should be dismissed.
Conclusion
For the foregoing reasons I will dismiss Grounds 1, 2, 3 and 4 of the Application.
The Minister seeks costs of $5,500[49]. This is less than the sum of $7,328 which is the amount allowed in sch.1, pt.3, item 3 of the Federal Circuit Court Rules 2001 (Cth) for a proceeding concluded at final hearing[50]. The Applicant will therefore be ordered to pay the Minister’s costs in the sum of $5,500.
[49] Transcript T9:27-30.
[50] Prior to amendment of sch.1, pt.3 of the Federal Circuit Court Rules 2001 (Cth) on 4 August 2018.
I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of Judge C.E. Kirton QC
Associate:
Date: 26 February 2019
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