BPW16 v Minister for Immigration
[2017] FCCA 1395
•22 June 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BPW16 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 1395 |
| Catchwords: MIGRATION – Application for Protection (Class XA) visa – where Tribunal sent the applicant a letter pursuant to s.424A of the Migration Act 1958 (Cth) – whether letter met the requirements of s.424A of the Act – letter met the requirements of s.424A of the Act – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.420, 422B, 424A |
| Cases cited: SZBYR v Minister for Immigration and Citizenship [2007] 235 ALR 609 |
| Applicant: | BPW16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | BRG 631 of 2016 |
| Judgment of: | Judge Jarrett |
| Hearing date: | 28 October 2016 |
| Date of Last Submission: | 28 October 2016 |
| Delivered at: | Brisbane |
| Delivered on: | 22 June 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr Quirk |
| Solicitors for the Applicant: | HopgoodGanim Lawyers |
| Solicitors for the First Respondent: | Ms Tattersall, Sparke Helmore |
| The Second Respondent entering a submitting appearance |
ORDERS
The amended application filed on 19 September, 2016 be dismissed.
The applicant pay the first respondent’s costs of and incidental to the amended application fixed in the sum of $5,800.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 631 of 2016
| BPW16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
By his amended application filed on 19 September, 2016 the applicant seeks judicial review of a decision of the second respondent dated 22 June, 2016 in which the Tribunal affirmed a decision of a delegate of the first respondent not to grant the applicant a Protection (Class XA) visa.
The applicant claims that the second respondent did not properly meet its obligations pursuant to s.424A of the Migration Act 1958 (Cth) in that it did not give the applicant notice of and the opportunity to comment upon certain matters upon which the Tribunal relied on to affirm the decision under review.
The first respondent opposes the application. The second respondent enters a submitting appearance.
For the reasons that follow, the application must be dismissed. The applicant does not establish that the Tribunal’s decision is affected by jurisdictional error.
Background
The applicant is a citizen of Bangladesh. He arrived in Australia as an unlawful maritime arrival on 6 May, 2013 and he applied for a Protection (Class XA) visa on 2 September, 2013.
The applicant claimed to fear harm on the basis of his political opinion and lack of education and financial means. He claimed that:
a)he supported and was a member of the Awami League Party and helped to arrange rallies where people carried banners, flags and shouted slogans;
b)a Bangladesh National Party member stole a transformer from his friend’s home. His friend later saw the man, had a fight with him and got the transformer back. The Bangladesh National Party member subsequently accused nine people (including the applicant) of attacking their member. The applicant attended court in relation to the incident on one occasion however failed to attend on two further occasions. He believed that the case had since been dismissed;
c)in January, 2014 his brother was physically assaulted by fellow members of the student wing however he did not know the reasons for the assaults;
d)his entire family supported the Awami League and his brother was a member of the student wing;
e)his father was a known “freedom fighter” due to his participation in the Bangladesh liberation war in 1971;
f)he would suffer financial hardship upon return as he was not educated or wealthy;
g)his father passed away and this resulted in great problems for his family as he was like a shield from the political harm;
h)his brother-in-law had been killed although the applicant was unsure as to whether it was an accident or murder;
i)he had been given and disposed of a pistol prior to leaving Bangladesh.
The above summary of the applicant’s claims are taken from the first respondent’s written submissions. The applicant did not contend that it was not an accurate summary of the claims made by the applicant to the Tribunal.
On 24 October, 2014 a delegate of the first respondent refused the applicant a Protection visa. The applicant applied for a review of that decision by the Administrative Appeals Tribunal.
Because the Tribunal was unable to make a decision favourable to the applicant on the papers, it invited the applicant to appear before the Tribunal and give evidence and make submissions in support of his application for review. There were three hearings before the Tribunal, one on 16 November, 2015, another on 13 January, 2016 and a final hearing on 5 February, 2016. After the last hearing, the Tribunal sent to the applicant a letter dated 12 May, 2016 pursuant to s.424A of the Act. I will discuss the terms of this letter later when turning a consideration of the applicant’s grounds of review.
On 22 June, 2016 the Tribunal decided to affirm the decision of the first respondent’s delegate.
The Tribunal, in its decision set out the applicant’s claims and set out a description of what had occurred at each of the three hearings before it. The Tribunal was concerned that the applicant had produced to it a number of documents in the Bengali language that were not translated into English. The Tribunal impressed upon the applicant and his representative the necessity of providing translated documents to the Tribunal. That occurred in respect of some of the untranslated documents and the Tribunal noted those documents in respect of which translation had been provided.
The Tribunal noted in its reasons that following the last hearing, the applicant’s representatives sent a further written submission to the Tribunal reiterating the applicant’s claims and elaborating on some of the matters that were raised during the course of the Tribunal’s hearings. One of the matters raised by the post hearing submission was difficulties that the applicant claimed he encountered with the interpreter that was provided for his assistance when he was interviewed for the purposes of the delegate’s determination. The post hearing submission reiterated the applicant’s claim that he had a significant involvement in local politics and with his local member of parliament although he had never had a high role in the Awami League. The submission also reiterated the applicant’s claim that he had been outside Bangladesh since 2008 and was not up to date with the politics in his area. He feared harm because of the inability of the State authorities to protect an ordinary person like him. The Tribunal was asked to take specific notice of the number of ordinary Bangladeshi citizens who had been harmed and killed in violence in 2015. The submission emphasised that all of the applicant’s brothers live lives which have been affected by political violence and they either moved around to avoid protection or travel to work in ways which avoid trouble and possible detection.
The Tribunal recorded that it had sent a letter on 12 May, 2016 to the applicant via his representative which invited him to comment on or respond to certain information set out in that letter. Broadly speaking the letter sought comment on or response to information under the following headings:
a)“Evidence about false case in 2007”;
b)“Information concerning claimed instances of harm”;
c)“Information concerning claimed cases against other members of your family”;
d)“Information concerning political involvement of father and brothers”.
On 26 May, 2016 the applicant’s representative provided an additional submission to the Tribunal together with an unsigned statement from the applicant and a number of additional documents. He affirmed the authenticity of all of the documents that he had provided to the Tribunal and his own evidence that he had given the Tribunal. He included information that his father had passed away recently and that had “resulted in a great problem for my family in Bangladesh”. The submission responded to and commented upon the matters raised by the Tribunal in its letter of 12 May, 2016.
The Tribunal found that the applicant was a supporter of the Awami League although it did not accept that he was ever a member of that political party or of its student wing or that he was involved in any political activity for them. The Tribunal expressed concerns about the applicant’s credibility generally and in respect of specific matters.
It was concerned as to the credibility of the applicant’s claims in circumstances where:
a)he would have only been 13 at the time that he claimed to have been joint secretary;
b)his evidence in relation to his activities in the role were extremely vague;
c)he had been unable to identify the four fundamental principles associated with the Awami League;
d)although the applicant had submitted documents in support of his claims, country information indicated that fraudulent documents are readily available in Bangladesh and it had difficulty accepting that the applicant would remain a member of the student league over five years after his departure.
In relation to the applicant’s claims concerning the court proceedings the Tribunal found that it did not accept that a false case had been brought against the applicant as he had alleged. In making that finding the Tribunal considered that:
a)the applicant had not maintained a consistent account in relation the Court proceedings or his actions surrounding them;
b)the documents submitted in support of the application were at odds with the applicant’s own evidence and it did not consider the police information documentation to be genuine and reliable.
In relation to the cases affecting the applicant’s family members the Tribunal found that it did not accept the police documentation submitted by the applicant to be genuine or reliable and that the applicant’s claims in that regard lacked credibility.
In relation to the claimed harm to members of the applicant’s family the Tribunal did not accept that there was an attack on the applicant’s brother in 2014 and found that the applicant was not a credible witness in relation to those claims on the basis that the applicant’s evidence over time had changed and the claimed harm was inconsistent with the movement of the applicant’s brother.
The Tribunal found that it did not accept as credible the applicant’s claims about the nature of the political involvement of the applicant’s family members. The Tribunal found it surprising that these claims had not been mentioned in the applicant’s written statement. The Tribunal was however prepared to accept that the applicant’s father and brothers were members and supporters of the Awami League.
The Tribunal further did not find the claims in relation to the applicant’s brother-in-law to be convincing although it was prepared to accept that he may have died while riding his motorcycle. It did not, however, accept that there was anything to point to him being murdered as opposed to suffering an unfortunate accident.
Having regard to relevant country information as well as the applicant’s submissions, the Tribunal did not accept that being a supporter of the Awami league gave rise to a real chance that the applicant would be persecuted as a result of his political opinion. The Tribunal further did not accept that the death of the applicant’s father made the applicant and his family vulnerable to being targeted for harm for any political or other reason.
Nor was the Tribunal satisfied that the applicant would face a real risk of persecution from Islamic State in the reasonably foreseeable future.
In considering the applicant’s risk of harm under the complementary protection provisions the Tribunal essentially relied on its previous factual findings and determined that it was not satisfied that the applicant met the criteria set out in s.36(2)(aa) of the Act.
The grounds of review
The applicant advances two grounds of review specified in his amended application for review as follows:
1. That the decision of the Second Respondent, the AAT, was affected by legal error as set out below.
2. The Tribunal failed to discharge its core function to review the decision.
Particulars
(i) In the Tribunal’s decision, the Tribunal considered the claims and evidence from [53].
(ii) It considered the claims under the following headings, inter alia:
(a) claims about [the Applicant’s] political involvement;
(b) claims about court case;
(c) claims about cases affecting family members;
(d) claimed harm against other members of the applicant’s family;
(e) claimed political involvement of other family members.
(iii) In the Tribunal’s decision, at [73], it stated that:
In all the circumstances, the Tribunal does not final credible the applicant’s evidence about his political involvement and activities. While he claims to have been joint secretary of the Student League, he made no mention of this in his initial statement, instead stating that he was a member of the Awami League. He claims to have been joint secretary of the Student League since about age 13 but was able to provide only very limited detail about the nature of his activities. He displayed a lack of familiarity with the fundamental principles of the Awami League. The Tribunal has not accepted as reliable the information from the Bochaganj Upazila Student League. It has difficulty reconciling the information in the letter from Mr Chowdhury with the applicant’s own evidence about the nature of his involvement in, and connection with, the Awami League and does not accept it as providing a reliable indication that the applicant has been in any way actively involved in political activities. The Tribunal is willing to accept that the applicant displayed some awareness of the Awami League, for instance at the Departmental interview. It is willing to accept that he may be a supporter of the Awami League. However, it does not accept that he was ever a member of the Awami League or the Student League, that he was ever joint secretary or an office holder of the Student League, or that he was involved in any political activity for either the Awami League or the Student League. As set out below, the applicant has also failed to provide a consistent and credible account of the false case which he claims was connected with his political opinion and activity. This reinforces the Tribunal in its conclusion that his claims and evidence in relation to these matters are lacking in credibility.
(iv) At the hearing(s), the last of which was on 5 February 2015, that at least one of the bases that the Applicant was relying on was membership of the student league, a wing of the Awami League.
(v) The Minister’s delegate in the reasons for his decision of 24 October 2014 (Delegate’s decision) noted that “it is primarily the youth and student wings of the [Awami League] who are involved in the intra-party violence”.
(vi) The Delegate’s decision was before the Tribunal.
(vii)In the Tribunal’s letter dated 12 May 2016 gave particulars of information, pursuant to s.359A(1) of the Migration Act 1958 (Migration Act), under the following headings:
(a) The evidence about false case in 2007;
(b) information concerning instances of harm;
(c) information concerning claimed cases against other members of your family;
(d) information concerning political involvement of father and brothers.
(viii) The Tribunal’s letter dated 12 May 2016 did not seek information about the Applicant’s political involvement as required by s. 359A(1).
(ix) The Tribunal did not act in a way that was fair or just.
3. The Tribunal constructively failed to consider the Applicant’s claims.
Particulars
(i) All of the particulars in Ground 1 are repeated.
The applicant’s written and oral submissions addressed both grounds of review together. There was no specific identification of the submissions with either of the particular grounds of review. I will deal with those submissions in the same way.
Part 7 of the Migration Act 1958 (Cth) provides for the “review” of certain decisions made under the Act. Section 420 of the Act sets out how the Tribunal is to operate and s.422B provides that Division 7 is taken to be an “exhaustive statement of natural justice hearing rule in relation to the matters it deals with”. The Tribunal is obliged to act in a way that is fair and just: s.422B(3). Section 424A is in the following terms:
424A Information and invitation given in writing by Tribunal
(1) Subject to subsections (2A) and (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
(2) The information and invitation must be given to the applicant:
(a) except where paragraph (b) applies—by one of the methods specified in section 441A; or
(b) if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.
(2A) The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.
(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 other person is a member; or
(b) that the applicant gave for the purpose of the application for review; or
(ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or
(c) that is non‑disclosable information.
(4) A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 426A(1F).
Section 424A does not require the Tribunal to put to the applicant its objective appraisals, thought processes or determinations because those matters are not information for the purposes of s.424A: SZBYR v Minister for Immigration and Citizenship [2007] 235 ALR 609 at [18].
The applicant contends that the s.424A letter sent by the Tribunal on 12 May, 2016 does not set out the particulars of “information relating the claims about the applicant’s political involvement that would be a reason, or part of the reason for affirming the decision that is under review”. The applicant suggests that the letter does not do either of the matters that are required by s.424A(1)(b) and (c) in that the letter does not ensure that the applicant understands why that information is relevant to the review or the consequences of it being relied on in affirming the decision that is under review or invite the applicant to comment or respond to it.
However, the applicant’s submissions make it clear that the information that the applicant now says ought to have been included in s.424A letter was information about the applicant’s political involvement provided by him to the Tribunal as part of his case. Whilst the Tribunal’s findings about the applicant’s claims relating to his political involvement arising from the information provided to the Tribunal by the applicant were clearly matters that could “be the reason, or part of the reason, for affirming the decision that is under review”, that information, to the extent that it is constituted by information from the applicant, was information that was exempted from the operation of s.424A(1) by s.424A(3)(b) and (ba) of the Act. The information considered by the Tribunal was documentary evidence given to the Department and documentary given to the Tribunal. It also consisted of oral evidence provided to the Tribunal.
The applicant argues that:
a)the Tribunal did not consider at the time it issued the s.424A letter that the applicant’s political claims were matters that could be the reason or part of the reason for affirming the decision that was under review;
b)given that it was part of the Tribunal’s core function to review the delegate’s decision part of that review required it to undertake the process required in s.424A with respect to “any claim that would lead to the delegate’s decision being affirmed”; and
c)the Tribunal ignored the claim and material with respect to the applicant’s political involvement in issuing the s.424A letter.
The applicant’s submissions, however, pay no regard to the work done by s.424A(3) of the Act. That subsection qualifies the Tribunal’s obligation under s.424A(1) of the Act. The Tribunal’s reasons for decision are lengthy, detailed and, with respect, considered. The Tribunal has carefully explained how it has come to the conclusions that it has reached. It was entirely cognisant of the claims made by the applicant about his political involvement. It referred to the documentary evidence provided by the applicant to both the Department and to the Tribunal in support of his claims about his political involvement.
Even assuming the correctness of the applicant’s proposition that all of the information which the applicant provided about his political involvement was “information” that might otherwise come within s.424A(1) (something which is not likely correct) it was clearly information which was within s.424A(3) of the Act. The Tribunal was not obliged to include any reference to that information in its letter of 12 May, 2016.
In my view, the Tribunal properly considered all of the applicant’s claims, dealt with each one and its reasons for reaching the conclusions at which it arrived are patent from its reasons for decision.
Conclusion
Neither of the applicant’s grounds of review establish that the Tribunal’s decision is affected by jurisdictional error. The amended application must be dismissed with costs.
I make the orders set out at the commencement of these reasons.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 22 June, 2017.
Date: 22 June 2017
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