BYN16 v Minister for Immigration
[2018] FCCA 2928
•23 October 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BYN16 & ORS v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2928 |
| Catchwords: MIGRATION – Application for judicial review of decision of Administrative Appeals Tribunal (Tribunal) affirming decision not to grant protection visa – whether Tribunal assessed applicants’ claims – whether Tribunal considered documentary evidence – whether Tribunal acted unreasonably in not accepting applicants’ claims of political involvement – whether first applicant impaired in participating in hearing before Tribunal – whether Tribunal failed to comply with s.424A of the Migration Act 1958 (Cth) by not giving particulars of inconsistent statements made by first applicant – whether Tribunal erred by not taking evidence from persons who had composed letters applicants produced to the Tribunal – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36(2), 91R(3), 424A, 425, 476. |
| Cases cited: Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510 |
| First Applicant: | BYN16 |
| Second Applicant: | BZC16 |
| Third Applicant: | BZD16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1979 of 2016 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 21 September 2017 |
| Date of Last Submission: | 21 September 2017 |
| Delivered at: | Sydney |
| Delivered on: | 23 October 2018 |
REPRESENTATION
| Applicants in person assisted by an interpreter |
| Counsel for the First Respondent: | Mr J Kay-Hoyle |
| Solicitors for the First Respondent: | Clayton Utz |
ORDERS
The application is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1979 of 2016
| BYN16 |
First Applicant
| BZC16 |
Second Applicant
| BZD16 |
Third Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicants, who are citizens of Bangladesh, apply for a remedy under s.476 of the Migration Act 1958 (Cth) (Act) in relation to a decision made by the second respondent (Tribunal) affirming a decision of the first respondent (Minister) not to grant the applicants a protection (class XA) visa (Protection visa).
The applicants first applied for a Protection visa on 1 March 2010 (First PV application). A delegate of the Minister refused that application on 25 October 2011, and, on 18 February 2011, the Refugee Review Tribunal (RRT) affirmed the delegate’s decision. The applicants again applied for a Protection visa on 4 October 2012 (Second PV application). That application came to be treated as a valid application for a Protection visa after the Full Federal Court handed down its judgment in SZGIZ v Minister for Immigration and Citizenship.[1]
[1] [2013] FCAFC 71
Claims for protection
The first applicant (applicant) is the only one of the three applicants who made a substantive claim for protection. The second and third applicants, who are the applicant’s wife and their child respectively, applied for a Protection visa as members of the applicant’s family unit.
The applicant’s claims for protection as stated in his form of application for a protection visa may be summarised as follows:[2]
a)The applicant is an active member and supporter of the Bangladesh Nationalist Party (BNP), and holds the position as an office bearer of the Jatiotabadi Jubo Dal, being the youth wing of the BNP, of a particular area.[3] The applicant held a position in the student committee of BNP during his schooling years, and has continued to be involved in BNP’s political activities.
b)After the Awami League came into power on 29 December 2008, their supporters and members started targeting and attacking local BNP members and supporters. On 7 February 2009 the applicant himself was attacked by local Chatra League members and beaten mercilessly. The applicant was hospitalised and received treatment for more than two months.
c)“They tried to add [the applicant’s] name with the existing cases so that [the applicant] could not be able to do BNP politics”. Further, “they filed a false case” against the applicant in relation to an incident that occurred at Dhaka University campus on 12 February 2009.
d)The applicant fears that if he returns to Bangladesh he will be targeted and killed for expressing his political opinions, and the state will not protect him because Awami League members and supporters have the support of the authorities.
[2] CB21
[3] CB329, [4]
The applicant expanded his claims in a statutory declaration made on 20 May 2014 which he submitted after he lodged his application for a Protection visa.[4] The statutory declaration describes the activities in which he and the second applicant participated in Australia in relation to the BNP. The applicant claimed he and the second applicant are active members and supporters of the BNP, and continue to support the BNP “wherever we live”, and that due to the applicant’s political profile and involvement supporting the BNP, he fears he will face serious harm in Bangladesh.
[4] CB150-151
With the statutory declaration dated 20 May 2014 the applicant submitted two letters dated 13 May 2014 from a Mr H on behalf of the Bangladesh Jatiotabadi Dal Australia (BJD Australia), one of which relates to the applicant.[5] It identifies positions the applicant held with a university branch of the Bangladesh Jatiotabadi Chatra Dol, at a branch of the Bangladesh Jatiotabandi Jubo Dol, and of the Bangladesh Schecca Shebok Dol. The letter also described the position he held in Australia. The letter also states that “our BNP leader in UK is been hijecked from Shylet, Bangladesh, when he went from UK”, and that if the applicant “go back to Bangladesh at the moment he can be hijecked” (all errors in original). The other letter relates to the second applicant which identifies a position she holds with the Bangladesh Jatiotabandi Mohila Dol, which is associated with the Australian BNP.[6]
[5] CB154
[6] CB153
Course of proceeding before the Tribunal
In support of his application for review the applicant, through his representative, provided the following letters:
a)Two letters each dated 24 May 2016 and each apparently composed by Mr H.[7] The letters repeat the substance of the matters stated in Mr H’s letters dated 13 May 2014. In the letter dated 24 May 2016 under cover of which the applicant’s representative provided Mr H’s letters to the Tribunal, it was stated that Mr H “will come to the Tribunal in person to provide evidence in support of the applicant’s application for a protection visa.”[8]
b)A letter dated 29 May 2016 by a Mr A of Zia Parishad Australia Inc.[9] Mr A states the applicant held positions with Bangladesh Jatiotabadi Chatra Dol, and at a branch of the Bangladesh Jatiotabandi Jubo Dol, and of the Bangladesh Schecca Dol. Mr A also states that after the applicant arrived in Australia the applicant “started to joint with . . . BNP Australia and Associate Organization’s all activities”. Mr A states that the “[p]resent illegal government of Bangladesh hijack all anti-Gov. activists in the country either overseas as Mr Mojibur Rahman who was our BNP leader in UK is been kidnapped from Sylhet, Bangladesh when we went from UK” (errors in original), and that the applicant faces the same threat if he were to return to Bangladesh.
c)A letter dated 29 May 2016 from Mr S of Bangladesh Jatiotabadi Jubodal Australia stating that the applicant, “is my political colleague since long [sic]”, the applicant was Mr S’s “political partner” when Mr S was involved in BNP politics at university, the applicant held and currently holds particular positions with BNP organisations, “[s]o far as my knowledge [sic] he is seriously targeted by present autocrat Awami Government”, the present political situation in Bangladesh is “very serious for BNP activist [sic]”, the applicant has no security in Bangladesh, and that the applicant “was bound to depart from Bangladesh to save his life”.[10]
d)A letter dated 29 May 2016 from Mr M who describes himself in the letter as an “Ex-Advisor BNP Australia” stating that the applicant is an office holder of “Bangladesh Schecca Sebok Dol”, that the applicant “participates all activities [sic] of the BNP Australia Committee”, and the present political situation in Bangladesh is “very serious for BNP activist [sic]”, the applicant has no security in Bangladesh, and that the applicant “was bound to depart from Bangladesh to save his life”.[11]
[7] CB277
[8] CB276
[9] CB287.
[10] CB288
[11] CB289
The last three-mentioned letters were provided to the Tribunal under cover of a letter dated 31 May 2016 from the applicant’s representative stating that “all the above witnesses will come to the Tribunal in person to provide evidence in support of the applicant’s application for a protection visa”.[12]
[12] CB286
Delegate’s decision
The delegate refused to grant the applicants a Protection visa because, although the delegate considered the applicant may be a general supporter of the BNP, she was not satisfied the applicant was an activist member of the party, or that he participated in any political action to develop a particular political profile in Bangladesh.[13] The delegate also found the applicant did not demonstrate he ever held a role of any public prominence with the BNP, or that he was involved in commercial or sectarian interests that support or oppose other parties or groups that would motivate political opponents or state authorities to specifically target the applicant for an attack.[14] The delegate was also not satisfied the applicant or his family had been subjected to any harm in Bangladesh because of the applicant’s political opinions.[15]
[13] CB184
[14] CB185
[15] CB184
Hearing before Tribunal
At the hearing before the Tribunal on 1 June 2016 the second applicant said she had a migraine and, for that reason, she would be unable to say anything at the hearing. She said she did not want to come back on another day to give evidence, and that she would be providing evidence in writing.[16] The second applicant provided two statements dated 10 June 2016 after the hearing.[17]
[16] CB341, [55]
[17] CB303-315, CB316
Also at the hearing, the applicant asked that the Tribunal take evidence from Mr A and from Mr M, and the applicant’s representative requested the Tribunal take evidence from Mr H and Mr S. For reasons I will set out later, the Tribunal decided not to take evidence from these persons.
Tribunal’s reasons
The Tribunal commenced its reasons for decision by referring to conflicting authority in this Court about whether, where an applicant who had previously applied but failed to be granted a Protection visa based on the refugee criterion provided by s.36(2)(a) of the Act again applies for a protection visa but based on the complementary protection criterion provided for by s.36(2)(aa) of the Act, the Tribunal is required to assess the claims against both the refugee and the complementary protection criteria. After referring to the Federal Court in AMA15 v Minister for Immigration and Border Protection,[18] the Tribunal said that out “of an excess of caution”, it considered the applicant’s claims against both the refugee and the complementary protection criteria provided for by s.36(2)(a) and s.36(2)(aa) of the Act respectively.[19]
[18] [2015] FCA 1424 (Markovic J)
[19] CB328, [2]
The Tribunal accepted the applicant was a police sub-inspector in Bangladesh from 2004 until he left Bangladesh in February 2010, and that the applicants lived in Gopibagh until they left Bangladesh.[20] The Tribunal did not accept, however, that the applicant was involved with the BNP, the Chatra Dal, or the Jubo Dal in Bangladesh; or that the applicant held the positions he claimed to have held; or that he had the problems he claimed to have had because of his claimed political involvement; or that he was ever threatened or attacked for reasons of his political involvement; or that false cases had been filed against him;[21] or that the applicants left because they feared being harmed or killed or otherwise persecuted because of the applicant’s claimed political involvement.[22] The Tribunal principally relied on a number of inconsistencies in the evidence the applicant had given.
a)In the First PV application the applicant claimed that from March 2004 until February 2010 he had been the director of administration of a particular company whereas in the Second PV application the applicant said that from March 2004 to February 2010 he was a police sub-inspector in Dhaka.[23]
b)In the First PV application the applicant said he had been hiding before he left Bangladesh and that he had to visit his company secretly. At the hearing before the Tribunal, however, the applicant said he continued to work as a police sub-inspector and reported to work until he left Bangladesh.[24]
c)In the First PV application the applicant said he had been involved in campaigning at the parliamentary election in December 2008, but at the hearing before the Tribunal the applicant initially said he was not permitted to get involved in political activities, but later said he had been able to visit the campaign office by taking leave and going there in civilian dress.[25]
d)In the course of the First PV application the applicant claimed he became involved with and joined the BNP when he was at university. At the hearing before the RRT the applicant said he became involved with the BNP when he was in class 9, stating that he was offered the position of the sports secretary because he had been famous in his local area as a footballer, and that when he went to college, they put him in that position at district level.[26]
e)There were inconsistencies in the positions the applicant claimed he held. In the course of the First PV application both before the delegate and the RRT the applicant said that at university he was given the position of convenor and within two weeks the position of sports secretary. Before the Tribunal the applicant said he had been given the position of joint convener of law but then said he had been the law secretary. Further the Tribunal referred to a letter the applicant had produced to the Department from the president of the general secretary of the Chatra Dal at a particular university stating the applicant was the joint convener of law, but the letters from Mr H, Mr A, and Mr S all stated the applicant had been the law secretary.[27]
f)Although the applicant has consistently said he was the joint convener of a particular organisation, he has given inconsistent evidence about when he held that position.[28]
g)The applicant gave inconsistent evidence about the BNP at the parliamentary election in December 2008. Before the RRT the applicant said he had campaigned for Mr MA but Mr MA did not win because he had been detained under the caretaker government, and Mr C replaced Mr MA. Before the delegate in the Second PV application the applicant said the candidate was Mr S but the Tribunal understood the applicant to have intended to mean Mr K.[29]
h)The Tribunal considered the applicant gave inconsistent evidence about the problems he claimed he had because of his involvement in politics in Bangladesh. The Tribunal referred to, among other things, the applicant’s having claimed in both the First and Second PV applications that he was attacked on 7 February 2009 by local Chatra League members, yet at the hearing before the Tribunal the applicant’s representative having produced a letter from a doctor stating that the applicant had come to him on 3 December 2008 complaining of an assault, and the applicant having stated to the Tribunal that he had been attacked by Joynal Hazari or associates of Joynal Hazari.[30]
[20] CB356, [112]
[21] CB356, [111]
[22] CB356, [112]
[23] CB349, [88]
[24] CB350, [89]
[25] CB350, [89]
[26] CB350, [91]
[27] CB351, [93]
[28] CB351-352, [95]
[29] CB352, [96]
[30] CB352-353, [98]
The Tribunal also relied on the applicants’ having submitted in support of the First PV application three photographs that purported to show the applicant with the central leaders of the BNP that had been crudely altered by adding the applicant’s face and the face of another man. The Tribunal put to the applicant that an expert document examiner had looked at the photographs and found there was evidence showing the images had been manipulated or changed. The Tribunal put to the applicant that the newspaper report, which was said to have appeared in The Daily Alor Jagat the applicant also produced in support of the First PV application, appears to have been superimposed on the original page of the newspaper. The Tribunal found the photographs and the newspaper article are fabrications.[31]
[31] CB353-354, [101]-[105]
The Tribunal referred to the applicants’ representative at the hearing requesting the Tribunal take evidence by telephone from two other witnesses in Australia, Mr H and Mr S. The Tribunal declined the request. The Tribunal said the applicants’ representative said the two witnesses would come to the Tribunal in person to provide their evidence, and it considered that it was for the applicants to arrange for the attendance of these witnesses. The Tribunal in any event said that it did not consider that any evidence Mr H or Mr S could have given by telephone would have overcome the problems the Tribunal had already identified with the applicant’s evidence; and that it gave greater weight to the problems than the letters by Mr H and Mr S and the oral evidence they would have given.[32]
[32] CB355, [108]
The Tribunal accepted the applicant and the second applicant have been involved in the BNP in Australia. The Tribunal, however, was not satisfied, given the findings it had made about the applicants’ claims, that they have engaged in that conduct otherwise than for the sole purpose of strengthening their claims as refugees and, for that reason, the Tribunal considered that s.91R(3) of the Act (as it then applied to the applicants) required the Tribunal to disregard the conduct.[33] The Tribunal in any event considered (because it considered it to be relevant to whether the applicants satisfied the complementary protection criterion provided for by s.36(2)(aa) of the Act) whether the applicants would engage in political activity if they were to return to Bangladesh. The Tribunal concluded it was not satisfied that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Bangladesh, there is a real risk either the applicant or the second applicant “will be involved in any political activity or that they will refrain from involvement in political activity only because of a fear of suffering significant harm”.[34] The Tribunal also was not satisfied that news of the applicant’s and second applicant’s involvement with the BNP in Australia reached Bangladesh, or that, as a necessary and foreseeable consequence of the applicants being returned to Bangladesh, there is a real risk that news of their involvement in BNP in Australia will reach Bangladesh.[35]
[33] CB356, [113]
[34] CB357, [114]
[35] CB357, [115]
Given these findings, the Tribunal was not satisfied the applicants met the criterion provided for by the refugee criterion provided for by s.36(2)(a) of the Act or the complementary protection criterion provided for by s.36(2)(aa) of the Act.[36]
[36] The Tribunal was not required to consider the criterion provided for by s.36(2)(a) of the Act - Minister for Immigration & Border Protection v SZVCH [2016] FCAFC 127. The Tribunal’s having considered s.36(2)(a) of the Act, however, has not resulted in the Tribunal making a jurisdictional error because its having considered the criterion under s.36(2)(a) of the Act was immaterial to its consideration of the complementary protection criterion provided for by s.36(2)(aa) of the Act
Grounds on which applicants rely
The applicants, who are not legally represented, rely on three documents. The first is the application by which they commenced the proceedings. The application contains six grounds of application and claims that appear under the heading “Particulars” which I will take to contain grounds in addition to those stated in grounds 1 to 6. The second document on which the applicants rely is an amended application filed on 9 November 2016. The first five grounds of the amended application are identical to the first five grounds of the application, and grounds 6 of each of the application and amended application overlap. The third document on which the applicants rely is one titled “The Applicant’s Written Submissions” filed on 20 September 2017 (AWS). The AWS raise grounds additional to those stated in the application and amended application.
At the hearing before me the applicant said that what he wanted to say he had submitted “yesterday”. That is a reference to the AWS. The applicant said he and his family have been in Australia since 2010, his second child was born in Australia, the applicant’s son does not want to go back to Bangladesh, and the applicant would like to raise his children here in Australia.
These are not matters that are relevant to the tasks I have to undertake. My tasks are limited to considering the grounds the applicants raise and whether any of those grounds disclose a jurisdictional error by the Tribunal. I propose to consider each of the grounds contained in the application, amended application, and the AWS.
Ground 1 of application and amended application
Ground 1 of the application and amended application is as follows:
In making decision [sic], the Administrative Appeals Tribunal acted without jurisdiction or in excess of jurisdiction when it failed to take into account relevant considerations.
This ground discloses no jurisdictional error because it does not identify the considerations it claims are relevant and how those considerations were considerations the Tribunal was required to take into account.
Ground 2 of application and amended application
Ground 2 of the application and the amended application is as follows:
The tribunal failed to assess our harm on the basis of our claims.
The ground appears to claim the Tribunal did not assess the claims the applicants made or the harm they claim they suffered or feared they will suffer on the basis of those claims. This ground cannot be made out. As should be apparent from my summary of the Tribunal’s reasons and, more importantly, from the Tribunal’s reasons for decision and the evidence that is before me, the Tribunal identified the applicants’ claims, it questioned the applicant about his claims, and the Tribunal considered those claims. Ground 2 of the application and amended application, therefore, fails.
Ground 3 of application and amended application
Ground 3 of the application and amended application is as follows:
The tribunal failed to assess the present situation in Bangladesh since I left.
It is true that in support of their application the applicants, through their representative, submitted country information in relation to Bangladesh;[37] and the Tribunal in its reasons for decision referred to the applicant’s submission that the current situation was very similar to the situation in Afghanistan, and that the applicant’s son was aware that a lot of people were being killed in Bangladesh every day. The Tribunal dealt with that submission as follows:[38]
However I do not accept on the evidence before me, having regard to my findings of fact above, that either [the applicant or the second applicant] or their son faces any risk personally in the context of the current situation in Bangladesh. I accept people are being killed in Bangladesh as referred to in the submissions from the applicants’ representatives but I consider that any risk to the applicants in this context is a risk faced by the population of Bangladesh generally, not by them personally, and is therefore taken not to be a real risk that they will suffer significant harm in accordance with paragraph 36(2B)(c) of the Migration Act. I do not accept on the evidence before me, therefore, that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Bangladesh, there is a real risk that either [the applicant or the second applicant] or their son will be arbitrarily deprived of their lives, that the death penalty will be carried out on them, that they will be subjected to torture, that they will be subjected to cruel or inhuman treatment or punishment or that they will be subjected to degrading treatment or punishment as defined.
[37] CB68-114
[38] CB357-358, [116]
In my opinion the Tribunal did assess the current situation in Bangladesh, and it did to determine whether the applicants satisfied the complementary criterion provided for by s.36(2)(aa) of the Act. Ground 3 of the application and amended application, therefore, also fails.
Ground 4 of application and amended application
Ground 4 of the application asserts the “tribunal decision effected by the natural justice” (errors in original). By itself this discloses no jurisdictional error because it does not specify the acts or omissions on which it relies. As will appear later, the AWS claims the Tribunal failed to comply with s.425 and s.424A of the Act, and it may be the AWS are intended to contain particulars to ground 4. I will therefore defer consideration of ground 4 until I deal with those parts of the AWS that claim the Tribunal did not comply with s.425 or s.424A of the Act.
Ground 5 of application and amended application
Ground 5 of the application and amended application is as follows:
The tribunal made decision without any verification of my genuine documentary evidence and statement.
This ground is directed to the Tribunal’s treatment of the documents the applicant submitted in support of his application. The claim appears to be that the Tribunal either did not decide whether the documents were genuine or it gave no weight to the documents or it found the documents to have been fabricated.
There are two classes of documents that are relevant. The first are the photographs and accompanying newspaper article the applicant submitted in support of the First PV application. As I have already noted, the Tribunal found the photographs and accompanying newspaper article were fabricated.
The second class of documents are the letters the applicant provided that purported to identify the positions the applicant held with various BNP organisations. In its reasons for decision the Tribunal noted that it had put to the applicant that there were inconsistencies between the applicant’s evidence and the letters; and that the letter written by Mr A appeared to have been copied from Mr H’s letter “because he even repeated the spelling mistake which Mr [H] made”.[39] The Tribunal noted that the issue that arose from the fact that the letters were identical is “whether I can accept that the writers of these letters had independent knowledge of the positions which [the applicant] held (as Mr [A] suggested he had) or whether the letters were simply drafted to provide support for [the applicant’s] claims”.[40] The Tribunal said that the inconsistencies between the letters and the applicant’s evidence “are relevant to whether [the applicant] in fact held the positions he had claimed in the BNP and also his overall credibility”.[41]
[39] CB351, [93]
[40] CB351, [94]
[41] CB351, [94]
In my opinion, the Tribunal considered the documents the applicant provided in support of his claims. It was reasonably open to the Tribunal, for the reasons it gave, to find the photographs and purported accompanying newspaper article had been fabricated. As for the letters, the Tribunal treated them as genuine but for reasons it gave the Tribunal considered the letters, when viewed against each other and against the evidence of the applicant, undermined the applicant’s credibility in general. The Tribunal made no jurisdictional error in proceeding and reasoning in the manner it did.
Ground 5 of the application and amended application, therefore, also fails.
Ground 6 of application and amended application
Ground 6 of the application and the first sentence of ground 6 of the amended application states the “Tribunal decision is identical or similar of the Departmental decision” (errors in original). The second and third sentences of ground 6 of the amended application are as follows:
Complete violation of merit review procedure. As Previous of federal court findings that the complementary protection obligation (errors in original).
It is not clear what this ground intends to claim. Perhaps the claim is the Tribunal did not independently consider the applicants’ claims. If that is the claim, it fails. As I have already found, the Tribunal identified the applicants’ claims, it questioned the applicant about his claims, and the Tribunal considered those claims.
Grounds 6 of the application and the amended application, therefore, fail.
Particulars stated in Application
In a section of the application headed “Particulars”, the following is stated (I have included in square brackets a number before what I consider constitute distinct claims) (errors in original):
[1] AAT unreasonably raised doubt over my claims for political opinion. [2] The Department and the Tribunal misunderstood or misconstrued the facts which was effect of the decision.
[3] And for the safety of our life we forced to leave Bangladesh. When it became worse, I decided to leave Bangladesh.
[4] I argue that the Department and the Tribunal asked many irrelevant questions to test the credibility of my evidence.
[5] The Department and the Tribunal found inconsistency because the questions were asked in such a manner for which I was not prepared. Sometimes I was nervous and confused at the time of the interview with the Department & the tribunal. [6] I did not understand interpreter properly.
[7] For the protection of our life and we became serious target by the Police, Awami League gang and there activist.
[8] The Department has accepted that I was very confused. I, myself was not understanding what answer I was giving for what question. I will provide more details in my Amended Application.
[9] I believe I was denied procedural fairness when the hearing was conducted not freely and fairly.
Ground [1] of the particulars is directed to the Tribunal’s not accepting the applicant’s claims about his political involvement with the BNP. The claim appears to be that the Tribunal acted unreasonably in not accepting those claims. I do not accept the claim. As I have already noted, the Tribunal did not accept the applicant’s claims because of what the Tribunal found were inconsistencies in the applicant’s evidence, as well as his having submitted fabricated documents in the First PV application. It was reasonably open to the Tribunal to find the applicant had fabricated documents, and that there were before it the inconsistencies the Tribunal identified. It was also reasonably open to the Tribunal to rely on these matters in concluding it did not accept the applicant’s claims.
Ground [2] of the particulars does not identify the facts it is claimed the Tribunal misunderstood or misconstrued or how such facts affected the Tribunal’s decision. For that reason ground [2] discloses no jurisdictional error.
Grounds [3] and [7] of the particulars appeal to the merits of the applicants’ claims and, for that reason, disclose no jurisdictional error.
Ground [4] of the particulars does not identify the questions it claims were irrelevant and, for that reason, this ground discloses no jurisdictional error.
Ground [5] of the particulars claims the inconsistencies the Tribunal identified arose because of the manner in which the Tribunal asked questions, because the applicant was not prepared, and because the applicant was nervous and confused. The inconsistencies to which this part of the particulars are directed are not identified; nor is there evidence apart from the Tribunal’s reasons for decision from which the manner in which the Tribunal asked questions can be assessed. For these reasons, this part of the particulars discloses no jurisdictional error. Whether or not the applicant was prepared to answer questions the Tribunal asked does not by itself give rise to any question of the applicant’s not having been given a “real and meaningful” invitation under s.425 of the Act to appear before the Tribunal to give evidence and present arguments.[42] There is nothing in the Tribunal’s reasons for decision or in the material that is before me that the applicant informed the Tribunal he was not prepared to answer questions.
[42] Minister for Immigration & Multicultural & Indigenous Affairs v SCAR [2003] FCAFC 126, at [37]
As for the claim the applicant was nervous and confused, the Tribunal in its reasons for decision does refer to the applicant informing the Tribunal he had “kidney problems and psychological problems and that he had submitted documents about this”. The Tribunal said it noted that the document the applicant provided stated that his general practitioner had referred him to somebody because the applicant was suffering from anxiety, depression, and stress.[43]
[43] CB341, [55]. The document to which the Tribunal was referring is at CB279-280
The transcript of the hearing before the Tribunal is not in evidence before me. In its reasons for decision the Tribunal sets out questions it asked the applicant and the answers he gave. There is nothing in those reasons that suggests the applicant was confused or was unable to understand the questions that were asked of him; and there is nothing in those reasons that suggests the applicant or his representative informed the Tribunal that the applicant was confused or nervous or under stress. That there was nothing before the Tribunal that suggested or could reasonably have suggested to it that the applicant’s ability to meaningfully participate at the hearing was impaired in some way does not, of course, necessarily mean the applicant was not in fact impaired and was able to meaningfully participate at the hearing. The onus, however, is on the applicant to show he was unfit to take part in the hearing,[44] or was otherwise impaired in his ability to fully and effectively participate at the hearing. There is no evidence before me that suggests the applicant’s ability to meaningfully participate before the Tribunal was in any way impaired. Claim [5] of the particulars, therefore, also fails.
[44] NAMJ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 983 at [69] (Branson J)
Ground [6] of the particulars does not identify the parts of the hearing that were interpreted to the applicant that the applicant did not understand properly. The only evidence of what occurred at the hearing before the Tribunal is the Tribunal’s reasons for decision. The reasons show the applicant understood the questions that were asked of him. The Tribunal’s reasons do not suggest the applicant or his representative stated to the Tribunal that the applicant did not understand the interpreter. Ground [6], therefore, also fails.
Ground [8] of the particulars is directed to what occurred before the delegate. The ground does not disclose the matters about which the applicant was confused and how the applicant’s confusion before the delegate related to what the Tribunal did or did not do when reviewing the applicant’s case. For these reasons alone ground [8] of the particulars fails.
Ground [9] of the particulars does not identify the matters on the basis of which it is claimed the applicant was denied procedural fairness. For that reason ground [9] of the particulars fails.
Before I leave this part of my reasons it is appropriate that I note here that the amended application repeats the particulars contained in the application except there are two additional sentences about collecting the audio recording of the hearing before the Tribunal. Those sentences do not make any claim.
Ground 7 of amended application
Ground 7 of the amended application claims the Tribunal “did not follow the proper guideline of procedure and also Federal court findings’ in the judgment that complementary protection obligation of Australia” (errors in original). The ground does not identify the procedure it is claimed the Tribunal was required but failed to follow.
Counsel for the Minister suggests that the ground is directed to the judgments of the Full Federal Court in SZGIZ and the judgment of the Federal Court in AMA15 to which the Tribunal referred at the beginning of its reasons for decision. Even so, the ground does not identify what it is it claims the Tribunal did or did not do that is contrary to any finding recorded in those judgments. There is nothing in the Tribunal’s reasons that suggests the Tribunal did or failed to do anything that is contrary to what was decided in those judgments.
For these reasons ground 7 of the amended application fails.
Ground 8 of amended application
Ground 8 of the amended application is as follows:
The honourable tribunal member DECISION DATED 3/07/2016, in his STATEMENT OF DECISION AND REASONS (court book page 328 paragraph 2) clearly indicate that only five convention reasons considered. Not review with complementary protection criterion. Because Federal Court recent case SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235. The referred case by honourable tribunal is not very much similar to my claims. I will put details in my written submissions (errors in original).
This ground suggests the Tribunal did not assess the applicant’s claims against the complementary protection criterion provided for by s.36(2)(aa) of the Act. That is incorrect. As I have noted in paragraphs 12, 16, and 17 of these reasons for judgment, the Tribunal did consider whether the applicant satisfied the complementary criterion provided for by s.36(2)(aa) of the Act. Ground 8 of the amended application also fails.
Ground 9 of amended application
Ground 9 of the amended application is as follows:
My wife second applicant supposed to provide her oral evidence before the honourable tribunal member in the hearing date but my baby daughter feel sick, my wife or second applicant ask for oral evidence. My wife or second applicant did not get the opportunity to provide her oral evidence to support the claims. Without get the opportunity to provide the oral evidence before the tribunal that is the denial of procedural fairness (error in original).
The factual assertions made in this claim are contrary to the evidence before me. In its reasons for decision the Tribunal refers to the second applicant stating that she had a migraine and would not be able to say anything at the hearing; that she did not want to come back on another day to give oral evidence; and that she would be giving evidence in writing.[45] After the hearing before the Tribunal, the second applicant provided to the Tribunal two documents, both dated 10 June 2016.[46] In both documents the second applicant states that at the hearing she was sick and for that reason was unable to give evidence.[47] In the shorter of the two documents the second applicant stated:[48]
I still hope that my oral evidence is relevant to make reasonable review decision. If honorable [sic] member like to take oral evidence from me, any day I am happy to give my oral evidence for your kind consideration and determination.
[45] CB341, [55]
[46] CB303, CB316
[47] CB303, CB319
[48] CB319
The Tribunal referred to this part of the second applicant’s shorter document as follows:[49]
In her letter dated 10 June 2016 she stated that she would be happy to give oral evidence to the Tribunal but no request was made that a further hearing be held to provide her with that opportunity. I have considered appropriate to proceed on the basis of her written evidence as was agreed at the hearing on 1 June 2016. [The second applicant] said that since their marriage her husband has been a genuine and dedicated BNP leader and that their lives would be in danger if they returned to Bangladesh. I do not consider that [the second applicant’s] evidence overcomes the problems which I have identified above with her husband’s evidence. I give greater evidence to these problems than I do to her evidence.
[49] CB356, [110]
The Tribunal was correct in finding the second applicant in her letter did not request that the Tribunal hold a further hearing; and it was reasonably open to the Tribunal not to require the second applicant to give oral evidence in circumstances where she had provided two documents setting out the matters she wished the Tribunal to consider.
Ground 9 of the amended application also fails.
The AWS
The AWS is divided according to 4 “grounds”.
Ground 1: Section 425 as it applies to the Second Applicant
Ground 1 claims the second applicant submitted her own claims but the Tribunal failed to invite the second applicant to assess her claims. This ground asserts the second applicant asserted her own independent claims. Whether or not that is correct, whatever claims the second applicant made were wholly dependent on the claims the applicant made. On a fair reading of the Tribunal’s reasons for decision, that is how the Tribunal dealt with the second applicant’s claims. That is apparent in the ultimate findings the Tribunal made. It found it was not satisfied that the “applicants are persons in respect of whom Australia has protection obligations”, and that “neither [the applicant] nor [the second applicant] nor their son satisfies the criterion set out in paragraph 36(2)(a) or (aa) of the” Act.[50] Ground 1, therefore, fails.
[50] CB358, [117]
To the extent ground 1 of the AWS repeats ground 9 of the amended application it fails for the reasons I have concluded ground 9 fails.
Ground 2: Section 424A and 424AA
The applicant submits the Tribunal took into account information that had been given by the applicant orally to the Department without the Tribunal complying with s.424A or s.424AA of the Act in relation to that information. The information the applicant submits fell within s.424A of the Act is identified in paragraph 11 of the AWS. That information is the inconsistent evidence the Tribunal found the applicant had given and on which the Tribunal relied for not accepting the applicant’s claims. That is recognised in the following passage from the AWS:[51]
It should be noted that the above ‘information’ and the inconsistencies were part of the reason for the Tribunal questioning the credibility of the applicant and affirming the decision of the Tribunal and those ‘information’ was provided to the delegate of the Minister during the DIPB interview or in the first protection visa application of the applicant.
[51] AWS, [11], pages 4-5
To the extent the Tribunal relied on inconsistencies between claims the applicant made as a reason or part of the reason for affirming the delegate’s decision, those inconsistencies were not “information” for the purposes of s.424A of the Act. They do not in their terms contain a “rejection, denial or undermining of” the applicants’ case.[52] Rather, as the counsel for the Minister submitted, the inconsistencies reflect the Tribunal’s reasoning. Nor can the previous statements the applicant made which the Tribunal considered to be inconsistent with the claims the applicant made before it be characterized as “information” because such statements too did not in their terms contain a “rejection, denial or undermining of” the applicants’ case; those statements supported the applicants’ case.
[52] Minister for Immigration and Citizenship v SZLFX [2009] HCA 31, at [22]
For these reasons, ground 2 of the AWS fails. To the extent that this part of the AWS also has been provided in support of ground 4 of the application and amended application, ground 4 of the application and amended application also fails.
Ground 3: Failure of the Tribunal to take oral evidence by telephone from the witnesses nominated by the Applicant
This ground is directed to the Tribunal’s declining the request the applicants’ representative made at the hearing that the Tribunal take evidence by telephone from two other witnesses in Australia, Mr H and Mr S. As I have already noted, the Tribunal declined the request, first, because the representative had said the two witnesses would come to the Tribunal in person to provide their evidence, and it considered that it was for the applicants to arrange for the attendance of these witnesses; and, second, the Tribunal did not consider that any evidence Mr H or Mr S could have given by telephone would have overcome the problems the Tribunal had already identified with the applicants’ evidence; and that it gave greater weight to the problems than the letters by Mr H and Mr S and the oral evidence they would have given.[53]
[53] CB355, [108]
The ground on which the AWS contends the Tribunal made a jurisdictional error in declining the applicants’ representative request is the importance of the evidence that Mr H and Mr S were to give. There are two matters to note about that submission. First, the evidence Mr H and Mr S proposed to give was already before the Tribunal in the form of the letters they had written. There is no suggestion the Tribunal did not consider the letters. The question is whether there was any added significance to Mr H and Mr S giving by telephone evidence to the effect of that which they had given in their letters; and the AWS identifies no matter which could reasonably suggest the effect of the evidence Mr S and Mr H had given by letter would have had any greater weight had it been given by telephone.
Second, perhaps the complaint is that the Tribunal was obliged to take the evidence of Mr H and Mr S by telephone with a view to the Tribunal exploring inconsistencies between the matters it had identified between the letters Mr H and Mr S had written and between those letters and claims the applicant made. The Tribunal, however, was under no such no obligation. It has been said that “it is for the applicant for a protection visa to establish the claims that are made”;[54] it is “for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason”, and that the “Tribunal must then decide whether that claim is made out”;[55] the “function of the Tribunal . . . is to respond to the case that the applicant advances”;[56] and the RRT “is required to deal with the case raised by the material or evidence before it”.[57]
[54] SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 at [40]
[55] Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510 at 576 (Gummow and Hayne JJ)
[56] Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 at [78] (Kirby J)
[57] NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 at [58; ( (Black CJ, French and Selway JJ)
In any event, the relevant question is whether the Tribunal acted unreasonably in declining the request that it take evidence over the telephone from Mr H and Mr S. In my opinion, I am not satisfied the Tribunal acted unreasonably. First, as I have already noted, the Tribunal had before it the evidence Mr H and Mr S proposed to give, that evidence being the letters they had written. Second, the applicants’ representative had indicated that Mr H and Mr S would be available to give evidence, but the applicant, for reasons not apparent on the evidence before me, was unable to secure the attendance of Mr H and Mr S. Third, there is nothing to suggest that Mr S’s and Mr H’s stating orally over the telephone that which they had stated in their letters would have added to the weight of their evidence. Fourth, as I have already noted, the Tribunal was under no duty to take the oral evidence of Mr H and Mr S with a view to exploring inconsistencies between the matters it had identified between the letters Mr H and Mr S had written and between those letters and claims the applicant made.
For these reasons, therefore, ground 3 of the AWS also fails.
Ground 4: The Tribunal fell into jurisdictional error in that it failed to make enquiries as required by law, whether by exercise of its power under s.424 of the Migration Act 1958 (“the Act”) toget information otherwise.
This ground is directed to documents “from BNP leaders from Australia”; and the claim is the Tribunal failed to make enquiries about the authenticity of those documents.[58] The difficulty with this ground is that the Tribunal accepted the authenticity of documents the applicant provided from persons who stated the positions the applicant held with organisations associated with the BNP.
[58] AWS, [17]
Perhaps the complaint is the Tribunal ought to have made inquiries from the authors of the documents to verify the statements made by the authors. I have already concluded, however, in relation to the letters provided by Mr H and Mr S that the Tribunal was under no duty to take the oral evidence of Mr H and Mr S with a view to exploring inconsistencies between the matters it had identified between the letters Mr H and Mr S had written and between those letters and claims the applicant made. For the same reasons, the Tribunal was under no obligation to make inquiries of Mr H and Mr S or any other author of any document the applicant applied for the purpose of verifying the matters asserted in the documents.
Ground 4 of the AWS also fails.
Conclusion and disposition
The applicants have not succeeded on any of the grounds on which they rely. I propose, therefore, to order that the application be dismissed.
I certify that the preceding seventy-four (74) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Date: 23 October 2018