Btu18 v Minister for Home Affairs
[2018] FCCA 2146
•7 August 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BTU18 v MINISTER FOR HOME AFFAIRS & ANOR | [2018] FCCA 2146 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – application for a protection visa – whether the Tribunal failed to consider the applicant’s claims - whether the Tribunal failed to comply with s 424A of the Migration Act 1958 (Cth) – whether the Tribunal failed to afford the applicant procedural fairness – no jurisdictional error identified – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5H, 36, 424A, 438, 476 |
| Applicant: | BTU18 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 976 of 2018 |
| Judgment of: | Judge Street |
| Hearing date: | 7 August 2018 |
| Date of Last Submission: | 7 August 2018 |
| Delivered at: | Sydney |
| Delivered on: | 7 August 2018 |
REPRESENTATION
| The Applicant appeared in person. |
| Solicitors for the Respondents: | Ms M Perotti Sparke Helmore |
ORDERS
The oral application for an adjournment is refused.
The application is dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $5,000.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 976 of 2018
| BTU18 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 15 March 2018 affirming a decision of the delegate not to grant the applicant a protection visa.
The applicant was found to be a citizen of Bangladesh and his claims were assessed against that country. The applicant arrived in Australia on 12 July 2008, having been granted a TU 572 student visa offshore on 3 July 2008. On 23 July 2008 the applicant applied for a TU 572 Student visa onshore and was granted an associated bridging visa. On 11 August 2009 the applicant was granted a TU 572 Student visa. On 27 October 2010 the applicant applied for another TU 572 Student visa. On 25 November 2010 the applicant was granted a TU 572 visa. On 29 June 2011 the TU 572 Student visa was cancelled and the applicant became an unlawful non-citizen in Australia, and it was not until 29 June 2016 that the applicant applied for protection. On 6 September 2016 the delegate found the applicant failed to meet the criteria for the grant of a protection visa.
The Tribunal’s decision
The applicant applied for review on 14 September 2016. The applicant was invited to and attended two hearings to give evidence and present arguments.
The applicant claimed to fear harm from the Awami League or persons acting on their behalf, because of his association with, and position in the Bangladesh National Party (“the BNP”). The applicant alleged he was threatened by the Awami League, kidnapped, and detained for two days. The applicant alleged the Awami League for looking for him and even after his departure to Australia had threatened him. The applicant alleged that he had continued his political activities in Australia. The applicant claimed to fear harm by reason of being the son of a political science professor who was perceived to be an active supporter of the BNP and as a returnee from a western country who would be perceived to be wealthy.
The Tribunal in its reasons, identified the background to the application for review and set out the relevant law. The Tribunal summarised the applicant’s claims and evidence including referring expressly to a letter from a particular person A and a letter from a particular person G.
The Tribunal also expressly referred to medical evidence presented by a general practitioner in 2010 and the affidavit being briefly under psychiatric care in late 2016 and having been diagnosed with major depression with anxious stress, post-traumatic stress disorder, and generalised anxiety disorder. The Tribunal expressly referred to having regard to the medical evidence in assessing the evidence of the applicant in relation to his protection claims. The Tribunal concluded that the applicant’s mental health did not impair his ability to give evidence and present arguments at the hearing.
The Tribunal found the applicant was an intelligent, articulate, and assertive person. The Tribunal found that whilst the applicant may have been anxious, it did not impact on his ability to testify. The Tribunal identified the applicant was able to recount instances of harm he claimed to have experienced in Bangladesh without any apparent distress. The Tribunal identified the applicant was able to express himself. The Tribunal identified that it did on occasions, redirect the applicant to answer the question more directly and took into account the applicant’s assertion that he could get sidetracked. The Tribunal found that in fact, on occasions the applicant was being intentionally evasive, particularly when asked about matters that went beyond the details of his written claims. The Tribunal summarised these matters in relation to the applicant’s testimony in its reasons. The Tribunal accepted the diagnoses but gave no weight to the medical evidence in assessing the veracity of the applicant’s protection claims as those claims were self-reported by the applicant to the medical professionals.
The Tribunal referred to having had two hearings and found the applicant to be a most unsatisfactory witness. The Tribunal also found that country information undermined the credibility of the applicant’s claims as well as his very lengthy delay in applying for protection.
The Tribunal summarised the applicant’s claims and evidence and raised with the applicant questions in relation to his role in BNP. The Tribunal questioned the applicant about his anti-corruption activities with the student wing and the youth wing of the BNP. The Tribunal referred to the applicant’s assertion that the BNP had provided information about his whereabouts to the Awami League and alleged he had been threatened. The Tribunal found the applicant’s assertion that the BNP had passed on his information to the Awami League and that the Awami League made the threatening phone call to be invented.
The Tribunal referred to the applicant’s assertions that he spoke to party members concerning charges and when it would be safe to return. The Tribunal found there was no indication the applicant’s detailed written statement that he engaged in political activity once he moved to Chittagong and his response about the nature of the political activity in or from Chittagong seemed intentionally broad and had been invented to strengthen his claims in response to the Tribunal raising with the applicant that he had not engaged in political activity. When the Tribunal raised that the applicant’s response was inconsistent with his written statement in which he said he had been discharged from hospital, the applicant gave a lengthy reply which the Tribunal found was contradictory and raised a claim that was not made in his written statement.
The applicant told the Tribunal that for about two and a half years after he arrived in Australia he had regular contact with the BNP members in Bangladesh and attended party meetings by telephone call during which he gave his opinion and discussed the political situation in Bangladesh. The applicant confirmed in his testimony that his political activities had ceased in 2010. The applicant alleged he ceased these activities because he was mentally stressed. Later the applicant said his mental condition declined because he received a threatening call and was scared.
The Tribunal referred to the letter from a particular person G that the applicant was currently working hard for the BNP which was contradicted by the applicant’s own testimony in which the applicant had said he had had nothing to do so he joined the BNP Australia. The Tribunal referred to the applicant saying that the particular person Mr G had known him in Bangladesh and had told him to join, and that he had joined in November 2016. The Tribunal found the applicant had changed his testimony from stating he ceased his political activity in 2010 and did not join the BNP in Australia to claiming that he joined in November 2016. This issue was raised with the applicant, and the applicant alleged that he had thought the question was about why he had not joined the BNP after he came to Australia. The Tribunal did not accept the applicant’s explanation.
The Tribunal noted the applicant had been questioned about his political activities in Australia, and he clearly indicated that he had decided not to join the BNP in Australia and had ceased political activity in 2010. The Tribunal also noted there was no specific mention Mr G’s letter that the applicant had joined the BNP in Australia. The Tribunal explored this issue with the applicant, and the applicant offered no explanation beyond restating that he joined as a member in November. The Tribunal noted the applicant had told the delegate that he did not really participate in activities with the BNP in Australia but for two years had lived with a friend who was active with the BNP.
The Tribunal raised with the applicant whether he would be harmed if he returned to Bangladesh due to his past political activities. The Tribunal formed the view that the applicant, rather than trying to give a direct answer, was trying to recall what he had put in his written statement.
The Tribunal took into account country information. The Tribunal noted raising issues concerning that country information with the applicant and the applicant’s response.
The Tribunal found the applicant’s claims to be significantly undermined by his delay in applying for a protection visa. The Tribunal referred to the applicant’s explanations and did not find the explanations credible. Taking into account the concerns identified by the Tribunal with the applicant’s testimony and the independent evidence and the significant delay, the Tribunal concluded the applicant and his political and charitable claims are not credible. The Tribunal expressly had regard to the post-hearing submissions and found they did not overcome its concerns.
The Tribunal expressly referred in its credibility findings to taking into account and having regard to the letters from Mr G and Mr A, but decided to give those letters no weight due to the credibility issues. The Tribunal concluded that the information in Mr G’s letter was not reliable. The Tribunal identified the inconsistency in relation to what was in the letter and what had been mentioned by the applicant. The Tribunal referred to the response that Mr G had been the vice president in the past and that he should be called. The Tribunal referred to having attempted to call Mr G during the first hearing but was unable to reach him. The Tribunal noted the applicant did not request that Mr G give evidence at the second hearing, but in a statutory declaration submitted after the second hearing, the applicant submitted there was a further request to contact Mr G about the applicant’s political profile. Having taken into account the letter from Mr G and the applicant’s lack of credibility and the unreliability of the information provided in the letter by Mr G, the Tribunal decided not to contact Mr G, and concluded that any further information Mr G would provide would not be reliable.
The Tribunal referred to a s 424A invitation sent to the applicant in relation to his claims concerning being in hiding and decided to give that information no weight in making the decision.
In light of the adverse credibility findings, the Tribunal did not accept any of the political claims advanced by the applicant are true. The Tribunal did not accept the applicant was a member of, nor held any position with the student wing or the youth wing of the BNP in Bangladesh, or that he had engaged in any political activity or charitable work in connection with the BNP, its student wing or youth wing, or independently of the BNP, or that he spoke out about corruption with the BNP. The Tribunal did not accept the applicant was harmed by the Awami League, the police, the Rapid Action Battalion (“the RAB”), or anyone else associated with the Awami League including Kan Kata Kalu in Bangladesh as the applicant claimed, or was viewed adversely by anyone connected with the BNP, or that the applicant left Bangladesh because the caretaker government was harassing the BNP. The Tribunal did not accept that any false cases had been brought against the applicant in the past in Bangladesh, and did not accept after the applicant arrived in Australia that the applicant received a threatening phone call or that he has had any contact with the BNP, its student wing or youth wing in Bangladesh from Australia, or that he joined the BNP or has engaged in any activities with the BNP in Australia.
The Tribunal did not accept the applicant made any Facebook posts which attracted adverse attention that led to his Facebook account being closed. The Tribunal did not accept the applicant is a supporter of the BNP and did not accept the applicant is an active BNP member or a member of Bangladesh diaspora actively supporting the BNP.
The Tribunal rejected the applicant’s claims and found the applicant neither wishes to nor will engage in any political or charitable activity in connection with the BNP, any of its wings, or apart from the BNP, or that he wishes to or will engage in any anti-corruption activity relating to the Awami League, or BNP, or generally if he returns to Bangladesh. The Tribunal found the applicant has not engaged in any activity in Australia in connection with the BNP or apart from the BNP that would give rise to a risk of harm if he returns to Bangladesh. The Tribunal found as the applicant has not been politically active or undertaken charitable works as he claimed, he will neither wish to nor will engage in any political activity, charitable work, or express opinion in the reasonably foreseeable future in Bangladesh that would give rise to serious harm or significant harm for reasons of actual or perceived opinion or activity.
The Tribunal found if the applicant returns to Bangladesh he will not face serious harm or significant harm from the Awami League, anyone connected with the Awami League, anyone associated with Kan Kata Kalu, the police, RAB, any other authority, the BNP, or anyone else in Bangladesh due to any actual or imputed political or charitable past conduct, activity or opinion he has engaged in or expressed in Bangladesh or in Australia. The Tribunal did not accept the applicant’s assertions in relation to the submissions advanced that he would face harm in Bangladesh.
The Authority referred to the applicant’s claim that he was the son of a political science professor who was perceived to be an active BNP member and that he would be perceived as a returnee from a western country as a wealthy person. The Tribunal noted that no explanation had been advanced for not raising these claims earlier, and that neither claim is based on any obvious new information or event. The Tribunal referred to the applicant having previously identified his father as being a political science professor, but that the applicant had not made any express claim in relation to his father’s occupation or profile as placing the applicant at risk of harm. The Tribunal found that the applicant had ample opportunity to raise those claims, and that his failure to do so indicates he does not genuinely fear harm for these reasons.
The Tribunal did not accept that the applicant’s father is friends with the BNP leaders and members, has any association with the BNP, or that he will be perceived to be an active BNP member. The Tribunal did not accept the applicant will be harmed in Bangladesh as the son of a political science professor who was perceived as an active BNP member.
The Tribunal referred to country information in relation to the fear of extortion on account of being perceived to be wealthy. The Tribunal referred to the applicant having had ample opportunity to raise the claim of being at risk of harm due to his family’s wealth. In taking that into account, together with the applicant’s general lack of credibility and the absence of evidence to support this claim, the Tribunal did not accept the applicant will be extorted by gangs that are passively or actively supported by the Awami League because he is a returnee from a western country perceived to be wealthy. The Tribunal rejected the applicant’s claims and found that there is not a real chance the applicant will face persecution or significant harm for the reasons claimed if he returns to Bangladesh.
The Tribunal found the applicant does not have a well-founded fear of persecution as defined in s 5J of the Act in Bangladesh, and found the applicant is not a refugee within the meaning of s 5H of the Act, and found the applicant failed to meet the criteria under s 36(2)(a) of the Act.
The Tribunal found there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Bangladesh there is a real risk the applicant will suffer significant harm. The Tribunal found the applicant failed to meet the criteria under s 36(2)(aa) of the Act and affirmed the decision under review.
Before this Court
These proceedings were commenced on 9 April 2018. On 30 April 2018 a Registrar of the Court made orders giving the applicant an opportunity to file an amended application, affidavit evidence and submissions. No such documents were filed. The first respondent served its submissions in accordance with the order made by the Court on 30 April 2018.
At the commencement of the hearing, the Court explained to the applicant the nature of the hearing. The applicant confirmed that he understood the nature of the hearing.
Adjournment application raised from the bar table
From the bar table the applicant raised that he had only received the submissions of the first respondent on 31 July 2018, and that he wished to obtain an adjournment so that he could further respond to those submissions. The Court raised with the applicant why he had failed to put on submissions in accordance with the orders made by the Court, where submissions were due on or before by 24 July 2018. The applicant proffered no satisfactory explanation in relation to his failure in that regard.
The applicant asserted that he would be able to get input from his lawyer in relation to the submissions if an adjournment was granted. The Court raised with the applicant the proceedings having been commenced in April 2018 and why it was he had not been able to obtain legal input to date if he was able to do so. The applicant again provided no satisfactory explanation in response. The adjournment application was opposed by the first respondent.
I am satisfied the applicant had a proper opportunity to put on submissions pursuant to the orders made by the registrar on 30 April 2018. I am satisfied that the applicant would have already obtained any legal input if he was able to do so in respect of his proceedings. Further, I am satisfied the applicant has had a reasonable opportunity to inform himself if he wished to do so in relation to the submissions from the first respondent. The applicant was able to and did meaningfully engage in the hearing before this Court. Nothing said by the applicant from the bar table identified a proper basis upon which an adjournment should be granted. I am not satisfied that an adjournment is warranted in the interests of the administration of justice. It is for these reasons that the Court refused the oral application for an adjournment.
The applicant’s submissions from the bar table
From the bar table, the applicant maintained that the Tribunal had failed to take into account his medical condition in assessing his credibility. That proposition is entirely inconsistent with the Tribunal’s reasons as summarised above. It is clear that the Tribunal did take into account the applicant’s medical evidence and considered the extent to which that medical evidence could explain the applicant’s credibility issues before the Tribunal, and the Tribunal found that the medical evidence did not overcome its credibility concerns in that regard.
The applicant took issue with the adverse credibility findings by the Tribunal. Those adverse credibility findings were open for the reasons given by the Tribunal including, relevantly, the significant delay by the applicant in the present case in seeking protection. The adverse credibility findings cannot be said to be illogical or unreasonable.
The applicant also asserted that the Tribunal had failed to take into account the two letters written by Mr A and Mr G. The Tribunal’s reasons expressly identify having taken the same into account, both in the Tribunal’s reasons in paragraph 11 as well as expressly referred to the same in paragraph 40 of the Tribunal’s reasons, as well as the further analysis in relation to the letter from Mr G. The applicant complained that the Tribunal had not contacted Mr G. The Tribunal provided logical and rational reasons in support of not attempting to contact Mr G again after having done so unsuccessfully at the first hearing. The Tribunal’s reasons in that regard took into account the inconsistency in Mr G’s letter and the Tribunal’s credibility concerns. The Tribunal’s decision to take no further step to contact Mr G cannot be said to be unreasonable, and the Tribunal’s reasons in that regard cannot be said to lack an evident and intelligible justification.
The applicant referred to the Tribunal’s finding in relation to him not having been a BNP supporter in Bangladesh or in Australia, and that a different finding had been made by the delegate. The Tribunal’s reasons identify raising with the applicant the Tribunal’s credibility concerns in respect of the applicant’s alleged political activities including his membership of the BNP. It is apparent that the applicant had a real and meaningful hearing before the Tribunal and was alive to the issue concerning his credibility. Further, the delegate had also made adverse credibility findings in relation to part of the applicant’s claims. The applicant was on notice on the material before the Court and the conduct of the hearing by the Tribunal, of the Tribunal’s concerns in relation to the applicant’s credibility. Nothing said by the applicant from the bar table identified any jurisdictional error.
The grounds
The grounds in the application are as follows:
1. The Tribunal failed to afford procedural fairness to the applicant.
Particulars
A. The Tribunal in its decision noted (Para 18) that it would not give no weight to the medical evidence in assessing the veracity of the applicant's protection claims as those claims were self-reported by the applicant to the medical professionals. This adverse information was not put it to the applicant, particularly the adverse view of the Tribunal why it would not accept the report from the medical professionals and thereby denied a natural justice opportunity to the applicant to respond.
B. The Tribunal noted that the applicant's witness Mr George is not a reliable witness and disregarded his written evidence. The Tribunal failed to put on notice to the applicant that it considers Mr George's evidence is not reliable.
As an Inquirer who conducts inquisitorial inquiry the Tribunal has an obligation to put the visa applicant on fair notice orally or in writing of critical matters of concern to the Tribunal.
In CJU15 v Minister for Immigration and Border Protection [2018] FCAFC 45 (28 March 2018), the Federal Court held that the Tribunal decision is infected with a legal error because it denied procedural fairness to the applicant by failing to put the applicant on notice about the adverse findings.
2. The Tribunal failed to comply with s 424(A) or s 424(AA) of the Act in respect of information that it considered would be there reason or part of the reason for affirming the decision under review. The Tribunal took into account information that had been given by the Appellant orally to the Minister’s Department in determining whether the Appellant was a truthful witness. That information was not put to the Appellant in accordance with s424 (A) or 424 (AA) of the Act. The Tribunal raised concerns which seriously undermined the credibility of the appellant on the basis of following 'information' which should have been put formerly under section 424 (a) or Section 424 (aa) to put on notice to the applicant that such information would be the reason or part of the reason for affirming the decision under review and the applicant should have been advised that he can either orally comment or request additionally time to respond in writing. It should be noted that though the applicant enclosed the Department of Home Affairs decision record of his protection visa refusal, the following information raised by the Tribunal not mentioned in the decision record. Therefore, the applicant respectfully submit that such information should have been put under section 424 a or 424 aa of the Migration Act.
A. The Tribunal in its decision (Para 30) noted that the applicant had told the delegate that he made many Facebook posts and was threatened via his account but failed to mention that in the first Tribunal hearing and raised significant concerns on the credibility of the applicant.
3. The Tribunal failed to engage or failed to provide realistic consideration to claims submitted by the applicant.
Particulars
The applicant noted that he was accused as an agent of Pakistan. (See AAT decision record 30). The Tribunal overlooked the above claim to assess whether he would face harm on the basis that he would be perceived as an agent of Pakistan.
4. The Tribunal failed to consider applicant's political opinion and activities and his association with the Australian Bangladesh Nationalist Party activists in Australia.
Particulars
The applicant claimed that he supports the BNP in Australia and lived with a BNP leader in Australia and supports BNP in Australia. The Tribunal, though considered under the Refugee Convention reasons, however, failed to provide adequate consideration to his moral and physical support to the BNP in Australia under the Complementary Protection ground.
Ground 1
On the face of the Tribunal’s reasons, the Tribunal complied with the statutory requirements in the conduct of the review. The applicant was given two hearings. On the face of the material before the Court, the applicant had real and meaningful hearings and a proper opportunity to present evidence and arguments. On the face of the material before the Court, the Tribunal complied with its obligations under s 425 of the Act.
Insofar as the complaint of procedural fairness that the Tribunal gave no weight to the medical evidence, the Tribunal expressly referred to the medical evidence that was put forward and did not accept the veracity of the applicant’s protection claims as asserted in the medical evidence as they were self-reported by the applicant to the medical professionals. The Tribunal otherwise took into account the medical evidence in assessing the applicant’s credibility. There was no denial of procedural fairness by the Tribunal arising from the medical evidence adduced by the applicant.
The adverse finding in relation to the applicant’s credibility was open to the Tribunal for the reasons given by the Tribunal, and it cannot be said to lack an evident and intelligible justification. In particular, the applicant’s very substantial delay in seeking protection was a relevant and logical matter for the Tribunal to take into account, as well as the contradictions in the applicant’s evidence as identified in the Tribunal’s reasons summarised above.
Further, the Tribunal did not fail to have regard to the evidence that was adduced by the applicant and from Mr G. The Tribunal’s reasons expressly refer to the same, and found the letter by Mr G was inconsistent with the applicant’s claims. On the material before the Court, the applicant was clearly alive to the fact that his credibility was in issue, not just by reason of the findings by the delegate but also the circumstances of the issues, raised with the applicant by the Tribunal as reflected in the Tribunal’s reasons.
It was a matter for the Tribunal to determine what weight to give the letter by Mr G. Insofar as the applicant submitted that the Tribunal failed to contact Mr G, the Tribunal did in fact attempt to do so at the first hearing and noted that no request was made to do so on the second hearing. In light of the letter by Mr G, and the inconsistency with the applicant’s claims referred to by the Tribunal as well as the Tribunal’s credibility concerns in respect to the applicant, the Tribunal decided not to contact Mr G. That finding was open to the Tribunal and cannot be said to be unreasonable, and the reasons given by the Tribunal were logical and rational.
Further, Mr G is not a person in respect of whom the Tribunal had a duty to obtain information that could be readily ascertained in respect of a material matter. There was no unreasonableness by the Tribunal determining in the circumstances of the present case not to take further steps to try and contact Mr G.
Further, on the face of the material before the Court, the applicant was alive to the Tribunal’s credibility concerns with the applicant and had a real and meaningful opportunity to engage with those concerns. Further, in relation to the adverse credibility findings by the delegate, the applicant was on notice that his credibility would be in issue. Further, the applicant’s submissions made to the Tribunal and his statutory declaration clearly identify the applicant appreciating that his credibility was a live and real issue. No jurisdictional error as alleged in ground 1 is made out.
Ground 2
In relation to ground 2, no information has been identified enlivening any obligation under s 424A of the Act. Further, insofar as there was reference to Facebook posts, this was information provided by the applicant to the Tribunal for the purpose of the review and falls within s 424A(3)(b) of the Act. I accept the first respondent’s submissions that the evidence to the delegate about the Facebook posts and threats did not contain in their terms a rejection, denial or undermining of the applicant’s claims. Rather, what the Tribunal found undermined the applicant’s claims, was the failure to advance claims before the Tribunal and the delay in the seeking of protection.
The Tribunal relied upon the applicant’s inconsistencies and intentionally vague and evasive oral evidence in making the adverse credibility findings in respect of the applicant’s political claims. Those adverse credibility findings did not constitute information enlivening any obligation under s 424A of the Act. No jurisdictional error as alleged in ground 2 is made out.
Ground 3
The Tribunal’s reasons reflect an orthodox approach to the consideration of the applicant’s claims. The material before the Court supports the Tribunal having conducted the review with an open mind reasonably capable of persuasion. The Tribunal expressly referred to the applicant’s assertion of being accused of being an agent of Pakistan at paragraph 30 of its reasons. The Tribunal made adverse credibility findings in relation to the applicant’s claims. Those adverse credibility findings were open for the reasons given by the Tribunal which included, relevantly, the applicant’s very substantial delay in seeking protection.
The applicant did not claim to fear harm because he was accused of being an agent in Pakistan, but, rather, by reason of his alleged political activities which the Tribunal rejected. The Tribunal found that none of the comments by the applicant on his Facebook entries appear to be threats as such. The Tribunal did not accept the applicant made any Facebook posts which attracted adverse attention or led to the closure of his Facebook account. The Tribunal’s findings in that regard were dispositive of the applicant’s claim to be an agent of Pakistan. No jurisdictional error as alleged in ground 3 is made out.
Ground 4
In relation to ground 4, the Tribunal expressly referred to the applicant’s alleged political activities and the applicant’s alleged political opinion, and made findings adverse to the applicant in respect of the applicant holding political opinions or being likely to express political opinions in the future if returned to Bangladesh. Those findings were open to the Tribunal for the reasons given by the Tribunal.
The Tribunal also made adverse findings in relation to the applicant’s support for the BNP in Australia, and those adverse findings were open to the Tribunal for the reasons given by the Tribunal. The Tribunal, in that regard, identified inconsistencies in the applicant’s evidence relation to his activities in Australia. The Tribunal’s reasons reflect correctly identifying the relevant law in relation to complementary protection and reflect the Tribunal correctly applying the relevant law in relation to the reasonably foreseeable future if the applicant was returned to Bangladesh. No jurisdictional error as alleged in ground 4 is made out.
Section 438 certificate
The Court notes that the first respondent as a model litigant has drawn attention to a checklist disclosure that might have suggested the existence of a certificate under s 438 of the Act. The first respondent has adduced evidence that no certificate under s 438 of the Act has been found. I accept that there was no s 438 certificate issued in the present case. Accordingly, there is no issue of practical injustice or denial of procedural fairness that could arise in that regard.
Conclusion
As the application fails to make out any jurisdictional error, the application is dismissed.
I certify that the preceding fifty two (52) paragraphs are a true copy of the reasons for judgment of Judge Street
Date: 19 October 2018
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