BZB16 v Minister for Immigration
[2018] FCCA 994
•20 April 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BZB16 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 994 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – applicant claiming a fear of harm in Bangladesh for political reasons and on account of perceived wealth – applicant not believed – consideration of a non disclosure certificate issued by the Minister’s Department – no jurisdictional error. |
| Legislation: Evidence Act 1995 (Cth), ss.55, 56 Migration Act 1958 (Cth), ss.91, 424A, 424AA, 425, 437, 438 Cases cited: |
| Applicant: | BZB16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1974 of 2016 |
| Judgment of: | Judge Driver |
| Hearing date: | 20 April 2018 |
| Delivered at: | Sydney |
| Delivered on: | 20 April 2018 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Mr J Pinder of Minter Ellison |
ORDERS
The application filed on 25 July 2016 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,600.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1974 of 2016
| BZB16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
Introduction and background
The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal), made on 28 June of 2016. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
The background facts relating to the applicant’s claims for protection and the Tribunal’s decision on them are conveniently set out in the Minister’s submissions filed on 14 March 2018.
The applicant is a citizen of Bangladesh who arrived in Australia on 17 February 2013.
On 4 April 2013 the applicant applied for a protection visa.[1] His protection claims were set out in a statement of claim (the statement of claim) provided with his protection visa application.[2]
[1] Court Book (CB) 1–37
[2] CB 36–37
The applicant claimed that his college friends were supporters of the Chatra Dal, the youth wing of the opposition party in Bangladesh, the Bangladesh Nationalist Party (BNP). Although the applicant was not a BNP member, he claimed that he was perceived as such by the governing Awami League party. The applicant also claimed to fear harm from the Awami League due to his history of working overseas.
On 9 September 2013 the applicant attended an interview (the protection interview) with the delegate.[3] At the protection interview, the applicant provided the delegate with a supporting letter titled “3 No. Bhogdanga Union Parishad” dated 5 May 2013 signed by Alhaj Md. Saidur Rahman (the Rahman letter),[4] and a bundle of documents titled “Application for Information” relating to criminal charges (the charge documents).[5]
[3] CB 90
[4] CB 54
[5] CB 55–57
At the protection interview the applicant further claimed that when he returned to Bangladesh in 2012 he was asked for money by the authorities because he had been working overseas and was perceived to be wealthy. He and his family were threatened if he did not pay. The applicant further claimed that false charges had been laid against him in 1996 and 1997 and these had been revived in 2012.
On 13 September 2013 the delegate refused to grant the applicant a protection visa.[6]
[6] CB 75–99; especially CB 87–99
On 21 October 2013 the applicant sought review of the delegate's decision before the former Refugee Review Tribunal (RRT).[7]
[7] CB 101–106
The applicant provided the RRT with a copy of the Rahman letter and the charge documents, as well as another supporting letter titled “Bangladesh Jatiyatabadi Jubadal” dated 20 May 2013 (the BJJ letter).[8]
[8] See Annexure TG01 to the affidavit of Thomas Galvin dated 14 March 2018
On 17 June 2014 the applicant appeared at a hearing before the RRT (the RRT hearing).[9] At the RRT hearing the Tribunal provided the RRT with country information in support of his claims.[10] He claimed that he was of adverse interest to the Awami League because they wanted him to join them and he did not. He also claimed to fear that he would be extorted due to a perception of his wealth having worked overseas.
[9] CB 128–129
[10] CB 130
On 2 July 2014 the RRT affirmed the decision not to grant the applicant a protection visa.[11]
[11] CB 139–166; especially CB 143–166
On 30 July 2014 the applicant sought judicial review of the RRT decision before the Federal Circuit Court (the first judicial review application).[12] In connection with that review the applicant was assigned the pseudonym SZUVW.
[12] SYG 2141/2014
On 13 October 2015 Judge Emmett made orders by consent remitting the matter to the Tribunal on the basis that the RRT had made the following jurisdictional error: the RRT had failed to consider the applicant's claim to fear harm on the basis that he would be perceived to be wealthy as an expatriate, and had taken into account an irrelevant consideration, being that the applicant had worked overseas as a ship's crew member in circumstances where he had never made such a claim nor was there any evidence to support such a claim.[13]
[13] CB 167–169
On 13 April 2016 the applicant's representatives emailed the Tribunal attaching a “country submission”.[14]
[14] CB 198–261; especially CB 199–261
On 15 April 2016 the applicant's representatives emailed the Tribunal[15] attaching a supporting letter titled “Bangladesh Jatiotabadi Dal Australia” dated 15 April 2016 and signed by Mohammad Rashedul Haque (the Haque letter),[16] and a supporting letter titled “To who it may concern” dated 9 April 2016 and signed by Md. Asaduzzaman Ansari (the Ansari letter).[17]
[15] CB 262
[16] CB 263
[17] CB 264
On 18 April 2016 the applicant's representatives emailed the Tribunal[18] attaching a supporting letter titled “Bangladesh Nationalist Party—BNP” dated 3 April 2016 and signed by Md. Nur Islam Nuru (the Nuru letter).[19] The Haque letter and the Nuru letter both stated that the applicant actively worked for the BNP.
[18] CB 265
[19] CB 266
On 20 April 2016 the applicant attended a hearing before the Tribunal (the Tribunal hearing).[20] He did not provide any further documents at the Tribunal hearing. At the Tribunal hearing the applicant claimed to have been an active member of the BNP.
[20] CB 267–269
On 3 May 2016 the applicant's representatives emailed the Tribunal[21] attaching a statutory declaration from the applicant (the statutory declaration) commenting on information put by the Tribunal to the applicant at the hearing using the procedure set out in s.424AA of the Migration Act 1958 (Cth) (Migration Act),[22] as well as a further “country submission”[23] and various pieces of country information.[24]
[21] CB 273
[22] CB 274–278
[23] CB 279-291
[24] CB 292–312
On 28 June 2016 the Tribunal affirmed the decision not to grant the applicant a protection visa.[25]
[25] CB 313–336; especially CB 319–336
Tribunal decision
The Tribunal had regard to the claims made by the applicant in his statement of claim, at the delegate interview, at the hearing before the RRT, in written submissions to the Tribunal and at the Tribunal hearing.
The Tribunal also had regard to the documents provided by the applicant, including the Rahman letter, the BJJ letter, the charge sheets, the Haque letter, the Ansari letter and the Nuru letter. The Tribunal also had regard to recent country information, including information from the Department of Foreign Affairs and Trade dated November 2015 about the deteriorating security situation in Bangladesh, as well as media and other reports supplied by the applicant.
The Tribunal did not find the applicant to be a credible witness for seven reasons:
a)first, at the Tribunal hearing the applicant did not mention, and when prompted claimed that he had forgotten, his claim that the Awami League wanted to install one of their followers in his job. The Tribunal did not accept that the applicant would have forgotten such a claim were it true;[26]
b)secondly, the applicant provided inconsistent evidence at various stages regarding his involvement with the BNP. At the Tribunal hearing he claimed that he was a BNP member and had attended meetings, whereas he had initially claimed that he was not a BNP member. Further, the Rahman letter and the BJJ letter both stated that the applicant was not associated with any political parties, whereas the Haque letter and the Nuru letter both stated that the applicant actively worked for the BNP. The Tribunal considered but did not accept the applicant's explanation for these inconsistencies, and found that the applicant had opportunistically re-characterised his claims over time;[27]
c)thirdly, the applicant failed to mention in his statement of claim that he had experienced difficulties in Bangladesh in late 2012 and early 2013;[28]
d)fourthly, the applicant's evidence at the delegate interview and at the Tribunal hearing regarding whether he was discovered by the Awami League in 2012/2013 was inconsistent. The Tribunal put this inconsistency to the applicant using the procedure set out in s.424AA of the Migration Act, but did not accept the applicant's explanation;[29]
e)fifthly, the applicant's evidence was inconsistent about whether the Awami League asked him for money or asked him to join then in 2012/2013;[30]
f)sixthly, the Tribunal had difficulties with the applicant's evidence concerning the false charges that were laid against him. The Tribunal put this inconsistency to the applicant using the procedure set out in s.424AA of the Migration Act, but did not accept the applicant's explanation;[31] and
g)seventhly, the Tribunal found it unlikely that there would be false charges against the applicant laid in 1996 and 1997 given that he was able to obtain passports in 2004 and 2013.[32]
[26] CB 329 at [41]–[42]
[27] CB 329–330 at [43]–[47]
[28] CB 330 at [48]
[29] CB 330–331 at [49]–[50]
[30] CB 331 at [51]–[53]
[31] CB 331–332 at [54]–[59]
[32] CB 332–333 at [60]–[62]
One of the explanations given by the applicant for inconsistencies in his evidence was that there were interpretation errors at the RRT hearing. The Tribunal had the relevant portions of the applicant's evidence at the RRT hearing re-translated by an accredited interpreter, and found that re-translation confirmed that the interpretation at the RRT hearing was accurate.[33]
[33] CB 332 at [57]–[58]
The Tribunal did not accept that the applicant was a credible witness, and rejected all of his material claims. Given its adverse credibility findings, and the evidence to suggest that fraudulent documents are easy to obtain in Bangladesh, the Tribunal was not satisfied that any of the applicant's documentary evidence was genuine.[34]
[34] CB 333 at [63]–[67]
The Tribunal noted that the applicant claimed to have joined the BNP in Australia in November 2015. The Tribunal was satisfied that this was a means to further his protection claims, rather than due to his holding a genuine political view in support of the party. With respect to the refugee criterion, the Tribunal disregarded that conduct under s.91R(3) of the Migration Act. With respect to the complementary protection criterion (and alternatively with respect to the refugee criterion), the Tribunal was not satisfied that the applicant's involvement with the BNP in Australia would be known to the authorities in Bangladesh, or that such involvement (in the absence of active and ongoing involvement) would result in serious or significant harm. The Tribunal was not satisfied that the applicant would continue to be involved in the BNP or any other political party in Bangladesh.[35]
[35] CB 334 at [69]–[74]
The Tribunal then considered the claim that the applicant would be harmed because he would be perceived to be wealthy. The Tribunal found that the applicant had exaggerated his family's wealth. The Tribunal was not satisfied that the applicant would be targeted for extortion as an expatriate or because he would be perceived to be wealthy.[36]
[36] CB 335 at [76]–[80]
Finally, the Tribunal considered the applicant's claims on the basis of the overall security situation in Bangladesh, but was not satisfied that the applicant faces a real chance of serious or significant harm on that basis.[37]
[37] CB 335–336 at [81]–[84]
The Tribunal therefore rejected the applicant's claims under both the refugee criterion and the complementary protection criterion.[38]
[38] CB 336 at [87]–[89]
The present proceedings
These proceedings began with a show cause application, lodged on 25 July 2016. There are three grounds in that application:
1.The Tribunal failed to exercise its jurisdiction by failing to consider all aspects of my claims.
2.The Tribunal failed to consider my claim on the basis of my political opinion against the Awami League Party as an independent claim.
3.The Tribunal failed to assess the harm that I may face based on my political opinion against the Awami League Party.
The applicant continues to rely upon those grounds. The only evidence filed by the applicant is his short affidavit filed with his application in which he identifies himself and attaches a copy of the Tribunal decision. He has not taken up the opportunity afforded him to file and serve additional evidence, including a transcript of the Tribunal hearing.
On the Minister’s side, I received into evidence the court book filed on 2 November 2016, and two affidavits. The first, made by Thomas Galvin on 14 March 2018, annexes a document inadvertently omitted from the court book. The second, made by Jennifer Louise Strugnell on 13 March 2018, deals with a certificate purportedly issued under s.438 of the Migration Act. Exhibited to that affidavit are the purported certificate and, in a sealed envelope, the documents purportedly covered by that certificate. I have examined those documents.
Only the Minister made written submissions in accordance with procedural orders made by a Registrar and me.
I invited oral submissions from the applicant this afternoon. He told me that there are problems in Bangladesh and he would like another opportunity to address his claims for protection before the Tribunal. That is beyond the scope of this proceeding.
In reply, the applicant said that there had been interpretation problems at the hearing before the Tribunal. That assertion had not been raised previously. It appears that the applicant’s concern derives from his reading of the Tribunal decision and his personal recollection of what took place at the Tribunal hearing. In the absence, however, of better evidence of what occurred at the Tribunal hearing, the allegation of interpretation problems cannot be substantiated. The applicant has had ample opportunity to provide that evidence.
In other respects, I agree with the Minister’s submissions, both concerning the grounds of review and the issue of the purported certificate.
The grounds of review
The applicant's grounds are template grounds, which in their effect allege that the Tribunal failed to consider the applicant's claims, including a failure to consider the applicant's claim based on his political opinion against the Awami League as a “separate claim”.
This claim must fail at a factual level. The applicant never explicitly claimed to hold an anti-Awami League political opinion. Rather, he claimed that he had first attracted adverse attention from the Awami League because he was perceived to be a supporter of the BNP. He then claimed that he was of adverse interest to the Awami League because they wanted to install one of their followers in his job, because he refused to give the Awami League money, and because he refused to join the Awami League. The Tribunal considered all of these claims and rejected them.[39]
[39] At [64]–[65]
The Tribunal properly considered the claims made by the applicant on the basis upon which the application was made, and not on some different basis which may have occurred to the applicant during the course of judicial review,[40] and did not fail to consider any claims made by the applicant or any claims which clearly arose from the materials before the Tribunal.[41]
[40] Cf. Applicant S395 v Minister for Immigration [2003] HCA 71; (2003) 216 CLR 473 at [1] per Gleeson CJ
[41] Cf. NABE v Minister for Immigration (No.2) [2004] FCAFC 263; (2004) 144 FCR 1
Other issue
The file of the Minister’s Department in respect of the applicant[42] contains a certificate issued by a delegate of the Minister to the District Registrar of the Tribunal on 26 October 2015, purportedly under s.438 of the Migration Act (the certificate).
[42] CLF2013/81798
The certificate[43] applies to seven folios from the Minister’s Department’s file in respect of the applicant; that is, folios 41, 62, 77–80 and 84.[44]
[43] Annexure JLS01 to the affidavit of Jennifer Louise Strugnell affirmed on 13 March 2018
[44] Exhibit JLS02 to the affidavit of Jennifer Louise Strugnell affirmed on 13 March 2018
Those folios are as follows:
a)folio 41 is a documents titled “protection visa application validity check”, and is a completed checklist by the Minister’s Department following a validity check of the protection visa application;
b)folio 62 is a document titled “disclosure decision checklist”, and is a completed checklist by the Minister’s Department in considering whether to issue a non-disclosure certificate;[45]
c)folio 77 is a letter to the secretary of the Minister’s Department from the RRT enclosing a copy of the RRT's decision dated 2 July 2014;
d)folios 78–79 are a document titled “matter details summary” and an internal file note by the Minister’s Department recording the outcome of the first judicial review application;
e)folio 80 is an internal email between officers of the Minister’s Department, regarding compliance action following the first judicial review application; and
f)folio 84 is a document titled “reconsideration ordered”, and is a notice from the Minister’s Department to the Tribunal noting the outcome of the first judicial review application.
[45] On the basis of that checklist, a certificate should not have been issued
Following the decisions in Minister for Immigration v CQZ15, [46] Minister for Immigration v BJN16, [47] BEG15 v Minister for Immigration[48] and BZV15 v Minister for Immigration, [49] the Minister accepts that, for the reasons given by Beach J in MZAFZ v Minister for Immigration[50] at [37], the certificate is invalid.
[46] [2017] FCAFC 194
[47] [2017] FCAFC 197
[48] [2017] FCAFC 198
[49] [2017] FCA 1522
[50] [2016] FCA 1081; (2016) 243 FCR 1
However, even though the certificate is invalid, no jurisdictional error arises as a consequence of the issue of the certificate, either as a consequence of the decision of the Full Court of the Federal Court in Minister for Immigration v Singh[51] (Singh) or the decision of Beach J in MZAFZ.
[51] [2016] FCAFC 183; (2016) 244 FCR 305
That is because there is no basis (in either event) upon which it could be found that the Tribunal “acted on” the certificate or denied the applicant procedural fairness.
As stated by Robertson J in BZV15 at [3], citing BJN16 at [63] per Kenny, Tracey and Griffiths JJ:
…the non-disclosure by the Tribunal of the existence of a certificate given under s.438 may give rise to a denial of procedural fairness, but it does not follow that this will always be the case: it is necessary in each case for all the circumstances, and the consequences for the applicant, of the omission to be examined”.
Whether the Tribunal “acted on” the certificate or denied the applicant procedural fairness in this case is a matter for the Court to determine for itself having regard to the evidence. The documents covered by the certificate are relevant to the application before this Court[52] and are therefore admissible as evidence before the Court.[53] I was therefore satisfied that the Court should have regard to the documents for the purposes of determining whether the Tribunal acted on the certificate or denied the applicant procedural fairness.[54]
[52] Within the meaning of s.55 of the Evidence Act 1995 (Cth) (Evidence Act)
[53] Pursuant to s.56 of the Evidence Act
[54] Cf. CQZ15 especially at [77], [85] and [88] per Kenny, Tracey and Griffiths JJ; BJN16 at [63], [70], [76] and [80] per Kenny, Tracey and Griffiths JJ; and BEG15 at [30] per Kenny, Tracey and Griffiths JJ
On examining the documents the subject of the certificate, the most compelling inference to draw from the absence of reference to the certificate in the Tribunal's reasons is that the Tribunal did not consider them to be material to the review. This approach was adopted, with respect correctly, by Judge Manousaridis in BIE15 v Minister for Immigration & Anor, [55] and recently by Judge Nicholls in SZTQN v Minister for Immigration & Anor[56] at [61].[57]
[55] [2016] FCCA 2978; (2016) 314 FLR 392
[56] [2018] FCCA 522
[57] An appeal from BIE15 is listed to be heard before Logan J in the May 2018 Full Court sitting period
I infer that the Tribunal did not act on the certificate or deny the applicant procedural fairness because the content of the documents could not have impacted the outcome of the review.[58]
[58] Cf. CQZ15 at [65] per Kenny, Tracey and Griffiths JJ
That is because:
a)there was no issue before the Tribunal as to the validity of the applicant's protection visa application;[59]
b)as at 13 September 2013 the Minister’s Department's file did not contain any documents which, at that time, were assessed as falling within ss.437 or 438 of the Migration Act;[60]
c)there was no issue before the Tribunal regarding the notification to the Minister’s Department of the RRT's decision dated 2 July 2014;[61] and
d)the outcome of the first judicial review application was not itself in issue before the Tribunal on remittal, and in any event the subject documents merely recorded the orders made Judge Emmett in circumstances where the applicant was already aware of the orders and the orders themselves were not the subject of the certificate.[62]
[59] Cf. folio 41
[60] Cf. folio 62
[61] Cf. folio 77
[62] Cf. folios 78–80 and 84
Given the content of these documents, I am not satisfied that the Tribunal proceeded on the review of the applicant's claims on the basis that it was not required to consider the information covered by the certificate. The more probable inference is that the Tribunal was aware of the documents, but decided that they were not relevant to the issues it had to determine.
Further, the documents do not contain information that could have further assisted the applicant, had the Tribunal had regard to the documents.[63]
[63] Cf. SZMTA v Minister for Immigration [2017] FCA 1055 at [59] per White J
Consequently, there would be no jurisdictional error for denial of procedural fairness in the Tribunal not having raised the documents with applicant for comment (as contemplated by Beach J in MZAFZ).
Further, in AVO15 v Minister for Immigration, [64] Barker J found that the jurisdictional error found in Singh and MZAFZ had no practical application in a case where no substantive issue arises from non-disclosure. Having regard to the documents the subject of the certificate in that matter, Barker J found that the Tribunal “plainly had no regard to them and, on any view, they can have been of no, or only passing contextual relevance to the application”.[65] The Court found by reference to Minister for Immigration v WZARH[66] that, even if there was a technical breach, the applicant had not suffered any practical injustice.[67]
[64] [2017] FCA 566
[65] At [87]
[66] [2015] HCA 40; (2015) 256 CLR 326
[67] AVO15 at [91]
Ultimately, where there is an issue as to whether there has been a breach of procedural fairness, the person alleging the breach of procedural fairness must establish a loss of opportunity to advance his or her case, and whether or not he or she will succeed is usually dependent on the circumstances of the case.[68]
[68] CQZ15 at [67] and [85] per Kenny, Tracey and Griffiths JJ
As on inspection, the documents covered by the certificate were found “to be incapable of having any bearing on the decision of the Tribunal” I find that non-disclosure of the certificate could not have deprived the applicant of an opportunity to advance his or her case before the Tribunal, even though the certificate was invalid.[69]
[69] CQZ15 at [69] per Kenny, Tracey and Griffiths JJ
In MZAFZ Beach J hypothesised that the documents covered by the certificate in that matter contained information that was neutral or positive to the applicant's interests.[70] As I have before me in the present matter the certificate and the documents to which the certificate applied, I need not hypothesise about the nature or content of the documents covered by the certificate. The documents the subject of the certificate could not logically have had any bearing on the Tribunal's consideration of the applicant's claims, for the reasons set out above. There is no basis to infer that the Tribunal considered that the content of any of the documents subject to the certificate would be the reason or part of the reason for affirming the decision under review for the purposes of s.424A of the Migration Act, or that they contained or raised issues arising in relation to the decision under review for the purposes of s.425 of the Migration Act. Nor could such an inference possibly arise from the material. There was no other basis upon which a failure to disclose the documents could have constituted a denial of procedural fairness.
[70] At [46]
It follows that no jurisdictional error arises from the existence of the certificate.
Conclusion
I conclude that the applicant is unable to demonstrate a case of jurisdictional error by the Tribunal. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
In consequence of the dismissal of the application, the Minister seeks an order for costs fixed in the sum of $5,600. The applicant did not wish to be heard on costs.
I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,600.
I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 24 April 2018
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