BZB16 v Minister for Immigration and Border Protection
[2019] FCA 1253
•7 August 2019
FEDERAL COURT OF AUSTRALIA
BZB16 v Minister for Immigration and Border Protection [2019] FCA 1253
Appeal from: BZB16 v Minister for Immigration and Anor [2018] FCCA 994 File number: NSD 756 of 2018 Judge: STEWARD J Date of judgment: 7 August 2019 Catchwords: MIGRATION – appeal from a decision of the Federal Circuit Court of Australia – whether primary judge erred in dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal affirming a refusal of a protection visa application – whether Tribunal failed to properly consider the appellant’s claims – whether Tribunal failed to consider relevant considerations – whether Tribunal did not afford procedural fairness to the appellant – no jurisdictional error disclosed Legislation: Migration Act 1958 (Cth) ss 36, 438 Cases cited: Minister for Immigration and Border Protection v SZMTA (2019) 163 ALD 38
MZAFZ v Minister for Immigrationand Border Protection (2016) 243 FCR 1
MZXLD v Minister for Immigration and Citizenship [2007] FCA 1912
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1
Date of hearing: 7 August 2019 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 18 Counsel for the Appellant: The appellant appeared in person with the assistance of an interpreter Solicitor for the First Respondent: Mr J Pinder of MinterEllison Counsel for the Second Respondent: The second respondent filed a submitting notice ORDERS
NSD 756 of 2018 BETWEEN: BZB16
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
STEWARD J
DATE OF ORDER:
7 AUGUST 2019
THE COURT ORDERS THAT:
1.The appeal be dismissed with costs as agreed or assessed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
STEWARD J:
The appellant is from Bangladesh, and arrived in Australia on 17 February 2013. He sought a Protection (Class XA) visa but this application was refused by a delegate of the first respondent (the “Minister”). He then sought to have this decision reviewed by the former Refugee Review Tribunal (the “RRT”). That tribunal’s decision to affirm the delegate’s decision was set aside by the Federal Circuit Court. The review application was heard again by the second respondent (the “Tribunal”) in 2016, and the Tribunal affirmed the decision not to grant the appellant a protection visa a second time. The appellant then unsuccessfully sought judicial review of that decision in the Federal Circuit Court. He now appeals that decision to this Court.
Background
The appellant contends that if he is sent back to Bangladesh, he will be harmed by the supporters of the Awami League party (the “League”). He submits that he satisfies the requirements of s 36(2)(a) and/or (aa) of the Migration Act 1958 (Cth) (the “Act”). His main claims comprised the following:
(a)Initially his claim was that at college his friends were supporters of the Bangladesh Nationalist Party (the “BNP”). Although he himself at the time said that he was not a member of the BNP, he contended that he was perceived by the League to have membership of that party. He said that the League wanted a supporter of theirs to have his job. He claimed that they threatened to kill him. He reported this to the local police but they did nothing. He then left for Palau.
(b)Subsequently, in an interview with the Minister’s delegate, he added a new claim, namely that when he returned to Bangladesh from Palau demands were made for money by the authorities as he was now perceived to be wealthy. He and his family were threatened with abduction. He claimed that the League had tracked him down. He also claimed that in late 2012, three false cases previously made against him in 1996 and 1997 were revived. He presented letters from individuals in Bangladesh that stated that the appellant might be killed if he returned to that country.
(c)At the first hearing before the RRT, he also claimed that certain individuals wanted him to join the League. They threatened to file cases against him. He went into hiding. It was again said that he was threatened because he was perceived to be wealthy.
(d)Before the Tribunal, contrary to his prior position, he claimed to be an active member of the BNP. He provided further letters of support. One was from an advocate claiming to represent the appellant. The letter stated that the appellant had been convicted in Bangladesh and had received a sentence of life imprisonment. Another letter stated that the appellant had been an active supporter of the BNP whilst in Australia.
The Tribunal
The Tribunal considered all of the available evidence, including the letters of support. Ultimately, it did not find the appellant’s evidence to be credible and rejected all of his material claims. The reasons for that conclusion were summarised by the learned primary judge at [23] as follows:
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;
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;
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;
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;
e)fifthly, the applicant’s evidence was inconsistent about whether the Awami League asked him for money or asked him to join [them] in 2012/2013;
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; 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.
(Footnotes omitted.)
The Tribunal also rejected the appellant’s claim that the inconsistencies in his evidence arose from translation errors at the earlier hearing before the RRT. This claim was checked and found to be incorrect – an accredited interpreter engaged by the Tribunal verified that the interpretation at the RRT hearing was accurate. The Tribunal found that it was not satisfied that the appellant would be involved in the BNP or any political party if returned to Bangladesh. It found that the appellant had exaggerated his wealth. It also found, having regard to country information, that the appellant would not face a real risk of serious or significant harm if returned to Bangladesh. For these reasons, the Tribunal concluded that neither s 36(2)(a) nor s 36(2)(aa) were satisfied.
The Federal Circuit Court
The three grounds of review before the learned primary judge were as follows:
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.
Each ground was rejected by the learned primary judge. In particular, I refer to [37]-[38] of his Honour’s reasons:
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.
(Footnote omitted.)
Whilst not raised by any ground of review, the learned primary judge very properly considered another issue raised by counsel for the Minister, namely whether the Tribunal had denied the appellant procedural fairness by reason of the sending by the Minister to the Tribunal of a certificate pursuant to s 438 of the Act, together with certain identified material. The primary judge in that respect understood that following the decision of Beach J in MZAFZ v Minister for Immigrationand Border Protection (2016) 243 FCR 1, the certificate was invalid. The learned primary judge reviewed the material that was the subject of the certificate and the reasons of the Tribunal, and decided that the Tribunal had not acted on any of the material and did not deny the appellant procedural fairness because it was satisfied that the Tribunal had decided that the material was irrelevant.
Appeal to this Court
The appellant relied upon, again, three grounds of appeal in his notice of appeal. They were as follows:
1.The Court below erred in finding that the Administrative Appeals Tribunal had failed [sic] to properly consider the Appellant’s claims under s36(2)(a) and s36(2)(aa) of the Migration Act 1958 (“the Act”).
2.The Court below erred in finding that the Tribunal did not fail to consider relevant considerations and claims articulated by the applicant. The AAT did not deal with the submission to the IAA expressly made in pointing to harm suffered or would suffer by the applicant. It overlooked in dealing with the significant claim noted in applicant’s submission. It failed to consider that claim in the sense of giving proper, genuine and realistic consideration to that claim.
A. The applicant's representative in his submission dated 13 April 2016 (CB 236, para 93) submitted that the Awami League members and supporters target any one holding political opinion against the Awami League. Further, in para 152 (f) of his submission dated 13 April 2016 (CB 259) the applicant’s representative again submitted that political activists who do not accept the ruling government's (Awami League) political views face persecution from the authorities. The Tribunal failed to consider the claim of ‘a person holding a political opinion against the Awami league’. It should be noted that the Tribunal only dealt with the claim that the applicant holds a political opinion supporting the Bangladesh Nationalist Party. It is respectfully submitted that political opinion against the Awami League should be equated with the claim of holding a political opinion supporting the BNP. It should be noted that holding a political opinion supporting the BNP does not necessarily equated with a claim of the applicant's political opinion against the Awami League. These two are totally different claims and the applicant, through his Representative articulated the claim and the Tribunal failed to consider the above claim. The Federal Circuit noted that the applicant did not explicitly mentioned that he holds an opinion against the Awami League. It is respectfully submitted that the applicant has made a claim. It is further submitted that even if that claim is not expressly made but implicitly made, the Tribunal has an obligation to engage with the claim and asses the claim.
In SZSNY v Minister for Immigration & Anor, the Court said that failure to consider unarticulated claim and not considered under s36(2)(aa) amounts to error in law.
In AAY15 v Minister for Immigration & Anor [2017] FCCA 476 (16 March 2017), The Court held that the failure to deal with a claim expressly made or clearly arising in the circumstances is an error in law.
In Paramanathan v Minister for Immigration & Multicultural Affairs, Merkel J said:
... the RRT is not to limit its determination to the ‘case’ articulated by an applicant if the evidence and material which it accepts, or does not reject, raises a case on a basis not articulated by the applicant. That obligation arises by reason of the nature of the [inquisitorial] process and is not dependent upon whether the applicant is or is not represented ... (at 63)
It is submitted that above case laws supports the applicant’s submission that his claim which is made in the submission, even if it is not expressly made (but in applicant's case it is expressly made) the Tribunal as an inquisitorial inquirer should have assessed the claim.
It is submitted that the AA T had not only constructive knowledge but also had clear and active knowledge about the applicant's claim. Therefore, it is the duty of the AAT to engage in ‘active intellectual process’ to assess his claim for protection. It is submitted submit that in the applicant's case the AAT has clearly failed in its duty to engage in ‘active intellectual process and therefore, it has committed a jurisdictional error.
From the above the applicant respectfully submits that the AAT failed to consider his claim in the sense of giving proper, genuine and realistic consideration to that claim.
3.The Court below erred in finding that the Tribunal did not afford procedural fairness to the Applicants. A delegate of the Minister gave the Tribunal a certificate under s438 of the Migration Act 1958 in relation to the information DIBP received through FCC arrangement.
The Federal Circuit Court erroneously concluded that there is no practical injustice caused by not disclosing the Certificate.
I respectfully disagree with that conclusion. I was not given reasonable time to seek legal advice to provide submission on the issue.
(Footnotes omitted and errors in the original.)
The first ground remained unparticularised. The second ground was particularised. In essence, the particulars allege that the Federal Circuit Court erred in not deciding that the Tribunal had failed to consider a material consideration. It was contended that whilst the Tribunal dealt with the appellant’s claim that he was a BNP supporter, it did not deal with his claim that he held a political opinion against the League.
The grounds that were reviewed before the learned primary judge were not otherwise pursued.
Ground One
The Minister submitted that ground one was a general allegation of error concerning the application of s 36(2)(a) and (aa) of the Act. Hence, in the absence of any meaningful particulars as to how the appellant alleges that the Tribunal failed to assess the appellant’s claims properly, ground one must fail. I respectfully agree with that submission.
Ground Two
The appellant contended that his separate claim of holding a political opinion against the League could be found in the evidence in two places. The first instance was said to be in the following paragraph from a submission put to the Tribunal by a migration lawyer. The paragraph reads:
Accordingly we submit that the applicant who has already faced past problems in Bangladesh will again be persecuted if he returns to Bangladesh at this point of time. The reason is, the reports discussed earlier indicate that Awami League members and supporters either with the passive or active support of Government, are able to unleash activities which amount to persecution against the persons who exercise or hold an alternative political opinion against the Awami League.
The second instance appears in the same submission as follows:
Country information confirms that the Awami League activists continue to target BNP activists and supporters at both the national and local levels, and in fact the reports indicate that the Awami League government has started [a cleansing] program to eliminate BNP activists to strengthen their powerbase.
Political activists who do not accept the ruling government’s (Awami League) political views face persecution from the authorities.
In my view, neither passage supports the making of a separate and independent claim that the appellant held adverse views of the League and was thus exposed to a real chance of risk as distinct from the ground articulated before the Tribunal that he was a supporter of the BNP. In his written submissions, the Minister contended as follows:
The Minister submits that the primary judge was correct to find that this complaint must fail at a factual level. The appellant 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.
I respectfully agree with that submission. I also agree that this is not a case where the claim was tolerably apparent in the materials before the Tribunal such that it should have been separately investigated: see NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at 18-21 [58]-[63].
Ground Three
The third ground of appeal concerning s 438 of the Act was not particularised. The issue of the s 438 certificate was addressed in some detail by the learned primary judge. The material covered by the certificate was considered by his Honour and was found to be largely internal departmental records which did not relate to any of the appellant’s claims at an evidentiary level. I have carefully examined his Honour’s course of reasoning and can discern no error in it.
His Honour’s conclusions about the materiality of the failure to disclose the existence of the certificate and the materials covered by it to the appellant is consistent with the reasons of Bell, Gageler and Keane JJ in Minister for Immigration and Border Protection v SZMTA (2019) 163 ALD 38, where their Honours said at 50 [44]:
None of these submissions can be accepted. The Secretary’s provision of an incorrect, and therefore invalid, notification that s 438 applies in relation to a document or information amounts, without more, to an unauthorised act in breach of a limitation within the statutory procedures which condition the performance of the overarching duty of the Tribunal to conduct a review. Applying the principle of construction recently explained in Hossain v Minister for Immigration and Border Protection, however, the Act is not to be interpreted to deny legal force to a decision made on a review in the conduct of which there has been a breach of that limitation unless that breach is material.
(Footnotes omitted.)
In my view, the conclusion that knowledge of the material could not have made any difference to the outcome of the review by the Tribunal necessarily requires me to dismiss the third ground of appeal.
Before me the appellant did not address any of these three grounds of appeal. Instead, he made a number of claims concerning the situation in Bangladesh for non-supporters of the League. He said the police were corrupt and were in the practice of making false charges against non‑League supporters, such as drug smuggling. People disappear and some are shot. It was and is a fearful time for non-supporters of the League.
The appellant said that if I did not believe him, I should myself go online and check newspaper reports which would corroborate what he said. Alternatively, he asked me to remit his case back to the Tribunal for a rehearing so that his material could be checked again before the making of any final decision. I respectfully agree with the Minister’s submission that this was all, in substance, an impermissible attempt to have this Court reconsider the merits of his claims; this I cannot do. I also cannot consider fresh evidence, such as online newspaper reports, on an appeal from judicial review proceedings in the Federal Circuit Court: MZXLD v Minister for Immigration and Citizenship [2007] FCA 1912 at [10]-[11] per Gordon J.
For these reasons, the appeal is dismissed with costs as agreed or assessed.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Steward. Associate:
Dated: 16 August 2019
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