CBB16 v Minister for Immigration

[2020] FCCA 477

FEDERAL CIRCUIT COURT OF AUSTRALIA

CBB16 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 477

Catchwords:
MIGRATION – Administrative Appeals Tribunal – two grounds for review – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 424A, 499.

Cases cited:

SZBYR & Anor v Minister for Immigration and Citizenship & Anor [2007] HCA 26

Applicant: CBB16

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1618 of 2016

Judgment of: Judge Mercuri

Hearing date: 3 March 2020

Date of Last Submission: 3 March 2020

Delivered at: Melbourne

Delivered on: 6 March 2020

REPRESENTATION

Advocate for the applicant: In person

Solicitors for the applicant: None

Advocate for the respondents: Mr Van Der Westhuizen

Solicitors for the respondents: Mills Oakley

ORDERS

1. The applicant’s application filed 28 July 2016 be dismissed.

2. The applicant pay the first respondent’s costs in a sum to be fixed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1618 of 2016

CBB16

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review of a decision of the second respondent, the Administrative Appeals Tribunal (“the tribunal”) dated 18 July 2016 which affirmed a decision of a delegate of the first respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“the delegate”) made on 17 November 2014 refusing to grant the applicant a protection (class XA) visa (“the visa”).

Background

1. The applicant is a male citizen of Bangladesh who arrived in Australia as an unauthorised maritime arrival on 4 December 2012.[1]

   [1] Court book page 94.

2. On 12 April 2013, the applicant applied for the visa.[2] That application included a statement made by the applicant in which he made the following claims:

   [2] Court book pages 18 to 73.

   a)he fears returning to Bangladesh because he supported the Bangladesh Nationalist Party (“BNP”) which opposes the Awami League (“AL”) government;

   b)his late father, who was also a supporter of the BNP, was killed in a road incident, but the applicant claimed that he was in fact murdered by the local AL leader;

   c)in October 2012, he was part of a group building a stage for a BNP rally which was attacked by local AL hooligans who destroyed the stage;

   d)the local police took no action to protect the applicant or other BNP supporters;

   e)the following day, he and a group of BNP supporters gathered to protest the destruction of the stage;

   f)the applicant was arrested by the police, detained and beaten by police and threatened by AL members;

   g)one of the police officers was a distant cousin and helped negotiate a bribe to have the applicant released, although others in the group were tortured and two died;

   h)he was told that if he returned to Bangladesh he would be killed; and

   i)he left Bangladesh illegally by boat arriving in Australia in December 2012.

3. The applicant further claimed that he feared that if he returned to Bangladesh, he would be killed by the authorities or by AL because of his and his family’s association with the BNP.  He said that because of the manner in which his father died, he particularly feared that this would happen to him.

4. On 17 November 2014, the delegate refused to grant the applicant the visa.[3] The delegate noted that the applicant made his application for the visa with the assistance of Playfair Visa & Migration Services and that as part of that process, he was interviewed on 23 September 2014 with the assistance of a Bengali interpreter.  Ultimately, the delegate did not accept that the applicant was:

   A witness of truth in relation to the arrests and (did) not accept the applicant was ever arrested in Bangladesh for reasons of his political involvement or for any other reason.[4]

   [3] Court book pages 93 to 108.

   [4] Court book page 101.

5. The applicant applied for a review of the delegate’s decision on 5 December 2014.[5] 

   [5] Court book pages 116 to 140.

6. On 10 February 2016, the applicant provided a statutory declaration to the Tribunal in which he detailed his claimed involvement with the BNP.[6] In this statutory declaration, the application provides more detailed information about his involvement in the BNP, including that in 2003, he was ‘appointed to the role of Secretary as a BNP member’.[7]  In his statutory declaration, the applicant also:

   a)explained why he did not provide this information and evidence as part of his initial application for the visa;

   b)provided details of more recent developments in Bangladesh involving BNP members; and

   c)restated his fears of harm if he were forced to return to Bangladesh. 

   [6] Court book pages 147 to 153.

   [7] Court book page 149 at paragraph [8].

7. By letter dated 26 February 2016, the applicant was advised that the material submitted in support of his application for review had been considered, that the tribunal was unable to make a favourable decision on the basis of that information and invited him to attend a hearing to give evidence and present arguments on 22 April 2016.  That letter was sent by email.

8. On 15 April 2016 and on 21 April 2016, the tribunal sent the applicant SMS messages reminding him of the upcoming hearing.[8]

   [8] Court book page 182 to 183.

9. On 21 April 2016 at 5:05pm, the applicant contacted the tribunal.  The case note of this conversation records the following:

   a)the applicant said he had only just discovered he had received an SMS on his ‘old mobile number’;

   b)he had not received the earlier email correspondence advising him of the scheduled hearing;

   c)he confirmed his email address;

   d)there were no records on the tribunal’s file indicating that the applicant had changed his mobile telephone number;

   e)the applicant said he informed the Red Cross of the change in his mobile telephone number;

   f)the applicant arranged to see a lawyer once he received his hearing invitation but now would not have time;

   g)the applicant’s request for more time would be passed on to the tribunal member;

   h)the tribunal member did not grant the requested postponement and the applicant was advised of that and the meeting time and location was confirmed; and

   i)a further copy of the hearing invitation letter would be resent to the applicant immediately.[9]

   [9] Court book page 184.

10. The applicant attended the hearing on 22 April 2016 and was assisted by a Bengali interpreter.[10]

    [10] Court book pages 188 to 191.

11. On 19 July 2016, the tribunal affirmed the decision not to grant the visa.[11]

    [11] Court book pages 197 to 211.

The tribunal’s decision

1. After setting out the background to the applicant’s arrival in Australia, the procedural history to the application and the applicable law, the tribunal set out its considerations of the applicant’s claims.[12]  The tribunal set out the evidence filed by or on the applicant’s behalf at paragraphs [10] and [12] of its decision.

   [12] Court book pages 200 to 201 at paragraph [9].

2. The tribunal then considered the notification provided to the applicant about the hearing and the applicant’s request for an adjournment.[13] The Tribunal relevantly stated:

   The Tribunal considered this request and denied it for a number of reasons.  Firstly, the application for review was lodged with the Tribunal on 5 December 2014.  The applicant had 1 year and 4 months to obtain legal advice prior to the hearing.  Secondly, he had already obtained legal advice and filed further evidence with the Tribunal in the form of a Statutory Declaration by himself dated 10 February 2016, which had been prepared by a lawyer, and supporting documents.  Thirdly, the hearing invitation was sent to him by email on 26 February 2016, as requested, and it was not returned undelivered.  He had plenty of notice of the hearing and time to obtain further legal advice if he wished to do so prior to the hearing.[14]

   [13] Court book pages 202 to 203 at paragraphs [14] and [15].

   [14] Court book page 203 at paragraph [15].

3. The tribunal further noted that it did not finalise its review for some months but the applicant did not provide any post-hearing submissions to the tribunal in the period between the hearing on 22 April 2016 and its decision on 18 July 2016 (a further period of three months).[15]

   [15] Court book page 203 at paragraph [16].

4. The tribunal then considered the applicant’s evidence and whether Australia’s protection obligations were engaged, and found the applicant’s evidence was vague, evasive, implausible, contradictory and unconvincing.[16]  The tribunal ultimately concluded, having regard to all of the applicant’s claims, the evidence and submissions, that the applicant ‘is not a witness of truth... he fabricated his material claims for the purpose of obtaining a Protection visa.’[17]

   [16] Court book page 203 at paragraph [19].

   [17] Court book page 209 at paragraph [52].

5. In coming to this conclusion, the tribunal had regard to:

   a)significant inconsistencies in the applicant’s evidence regarding his father’s involvement in the BNP and how his father died;[18]

   [18] Court book pages 203 to 204 at paragraphs [20] to [24].

   b)the implausibility of the applicant’s claim that he was unable to obtain assistance from the BNP or the local police following his father’s death in 2002 while the BNP was in power at that time;[19]

   c)the fact that the applicant made no mention of his father having been killed or having been an office holder in the BNP in his first Department interview on 19 December 2012;[20]

   d)inconsistencies in the applicant’s evidence about the level of his involvement with and role in the BNP;[21]

   e)the applicant’s lack of knowledge about the BNP, including his lack of awareness of the main principles and policies of the BNP;[22]

   f)inconsistencies in the applicant’s evidence about:

   i)the number of times he had been arrested and details of those arrests;[23]

   ii)whether he had been charged with any offence;[24]

   iii)what he feared the authorities would do to him on his return to Bangladesh;[25] and

   iv)the circumstances as to how he came to have a letter from the BNP in support of his involvement with that organisation.[26]

   [19] Court book page 204 at paragraphs [25] to [26].

   [20] Court book pages 204 to 205 at paragraphs [27] to [28].

   [21] Court book pages 205 to 206 at paragraphs [29] to [35].

   [22] Court book page 206 at paragraphs [36] to [37].

   [23] Court book pages 206 to 207 at paragraphs [38] to [41].

   [24] Court book page 207 at paragraphs [42] to [43].

   [25] Court book page 208 at paragraphs [44] to [45].

   [26] Court book page 208 at paragraph [46].

6. In light of its concerns about the applicant’s credibility and the veracity of his claims, the tribunal had concerns about the authenticity of documents he had provided in support of his claims.  In coming to this view, the tribunal had regard to country information and the responses given by the applicant when its concerns were raised with him.[27] 

   [27] Court book page 208 at paragraphs [46] to [49].

7. The tribunal had regard to the country information provided by the applicant and the submissions made on the applicant’s behalf, although it was not persuaded by those submissions.[28]

   [28] Court book page 209 at paragraph [50].

8. The tribunal also had regard to the ‘Tribunal’s Guidelines on the Assessment of Credibility’ when assessing the applicant’s credibility, together with DFAT country information report on Bangladesh and the Department’s Policy Guidelines.[29]

   [29] Court book page 209 at paragraph [51].

9. Ultimately, having regard to all of the material before it, the tribunal made the following relevant findings:

   a)the applicant’s father died in 2002 although the tribunal did not accept that he was killed by supporters or member of AL, nor did it accept that the applicant’s father had been a supporter of or active in the BNP;[30]

   b)the applicant was not a supporter or member of the BNP, nor did he hold any of the positions claimed and consequently the Tribunal rejected entirely all of the applicant’s claims which flowed from these assertions;[31]

   c)neither the applicant nor any member of his family was or is of adverse interest to the AL or the Bangladeshi authorities;[32] and

   d)although accepting that the applicant would prefer to remain living in Australia, the tribunal was not satisfied that there was a real chance that the applicant would suffer serious harm for any of the reasons claimed if he were to return to Bangladesh now or in the reasonably foreseeable future.[33]

   [30] Court book pages 209 to 210 at paragraphs [55] to [56].

   [31] Court book page 210 at paragraph [57].

   [32] Court book page 210 at paragraphs [58] to [59].

   [33] Court book page 210 at paragraphs [60] to [61].

10. On the basis of these findings, the tribunal concluded that the applicant does not satisfy the criterion in section 36(2)(a) of the Migration Act 1958 (Cth) (“the Act”).[34]

    [34] Court book page 210 at paragraph [62].

11. The tribunal also considered the complementary protection provisions and for the same reasons outlined above, concluded that the applicant did not satisfy the criterion in section 36(2)(aa) of the Act.[35]

    [35] Court book page 210 at paragraphs [63] to [66].

12. The tribunal therefore affirmed the delegate’s decision not to grant the visa to the applicant.[36]

    [36] Court book page 211 at paragraph [69].

Grounds for review

1. The applicant’s application for judicial review identifies the following grounds of review:

   Ground 1: The decision of the Tribunal:

   1.is affected by an error of law; and

   2.denied the applicant procedural fairness.

   Ground 2: I have made an application for assistance through Victorian Legal aid and am awaiting for a decision.

2. Notwithstanding orders having been made on 18 January 2017 (“the January 2017 orders”) permitting the applicant to file and serve any amended application with proper particulars of the grounds of the application, no such amended application was filed by the applicant.  Nor did the applicant file any written submissions in support of his application as provided for in the January 2017 orders.

Ground two

1. Ground two does not identify any alleged error in the tribunal’s decision and therefore does not properly constitute a ‘ground of review’.  I therefore do not propose to consider that ground any further.

Ground one

1. Ground one does not provide any particulars of the alleged ‘error of law’ or how it is said that the applicant was denied procedural fairness. 

2. At the hearing before me, the applicant appeared on his own behalf, assisted by a Bengali interpreter.  After explaining to the applicant the nature of the proceedings before this court, I invited him to explain what he said were the jurisdictional errors in the tribunal’s decision. 

3. Without in any way being critical of the applicant, acknowledging that he was representing himself and that the proceedings were being conducted in a foreign language, albeit through an interpreter, the applicant was unable to identify with any greater particularity the errors he complained of in the tribunal’s decision.

4. In essence, the applicant made the following oral submissions:

   a)in making his application for the visa, as he was not familiar with Australian law, he followed the advice of his lawyers;

   b)he was not given much time to correct errors in his claim;

   c)he was forced to leave his country and the situation in his country has continued to deteriorate;

   d)the situation in Australia is also not good as he has not been provided with a work permit or other benefits;

   e)in relation to the request for an adjournment of the hearing before the tribunal, he did not recall receiving the email advising of the hearing date; he may have deleted it or may have not realised what it was when he received it and that is why he sought an adjournment;

   f)to the extent that the tribunal said there were inconsistencies in his statements, this may have been because he had not properly understood the questions asked and also because he is not familiar with the legal process in Australia;

   g)in relation to the failure to provide all relevant documents, he left Bangladesh without any documents and it was difficult for him to obtain the relevant documents once he was in Australia because he is far away and did not have the financial resources to be able to obtain all the necessary documents or to pay for a private lawyer; and

   h)he would like to stay in Australia.

5. It was argued on behalf of the Minister that the first ground merely makes broad and unparticularised allegations that the tribunal’s decision is affected by jurisdictional error and that the applicant was denied procedural fairness.

6. In the absence of proper particularisation, this ground cannot succeed.  Moreover, at the hearing, when provided with a further opportunity to explain what error he complained of, the applicant did not identify anything which could properly be characterised as an error of law or a denial of procedural fairness.  At its highest, the submissions made by the applicant seek impermissible merits review. 

7. In any event, for the following reasons, I am satisfied that no error of law is apparent from the tribunal’s decision record.

8. The findings made by the tribunal, including its assessment of the credibility of the applicant and his claims, were reasonably open on the evidence before it. The requirement of the tribunal was to consider the evidence before it and determine whether the applicant met the criterion for the visa pursuant to the Act.

9. A fair reading of the tribunal’s reasons as summarised above, reveals that the tribunal assessed the applicant’s claims against the criterion in section 36 of the Act. The tribunal also had regard to the section 499 Ministerial Direction to the extent that it was relevant to the matters under consideration and DFAT country information.

10. Ultimately, the tribunal’s reasons for decision turn on adverse credibility findings made by it.  Those adverse credibility findings were reasonably open to the tribunal on the facts before it.  There is nothing in the tribunal’s decision to suggest that it misapplied the applicable law.

11. For each of these reasons, I find that the applicant has not established that the tribunal’s findings are affected by any error of law.

12. To the extent that the applicant claimed that the tribunal failed to comply with its procedural fairness obligations again, it is not clear what alleged breach of these obligations is relied upon by the applicant. 

13. It is clear from the summary set out above, and I find, that:

    a)the applicant was invited to and attended an interview before the tribunal at which he was given and took the opportunity to provide evidence and made submissions; and

    b)the issues for review were comprehensively discussed with the applicant at that hearing, including concerns that the tribunal member had about various inconsistencies in evidence provided by the applicant.

14. I accept the submission made by the Minister that no obligation arose under section 424A of the Act to put to the applicant any inconsistency in the evidence before it. As noted by the majority of the High Court in SZBYR & Anor v Minister for Immigration and Citizenship & Anor [2007] HCA 26:

    …if the reason for why the Tribunal affirmed the decision under review was the Tribunal’s disbelief of the appellants’ evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting ‘information’ within the meaning of par (a) of s 424A(1). Again, if the Tribunal affirmed the decision because even the best view of the appellants’ evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute ‘information’. Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs that the word ‘information’

    ‘does not encompass the tribunal’s subjective appraisal, thought processes or determinations… nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc.’

    If the contrary were true, s 424A would in effect oblige the Tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly ‘information’ be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence…[37]

    [37] SZBYR & Anor v Minister for Immigration and Citizenship & Anor [2007] HCA 26 at [18].

1. In any event, even though not required by section 424A to put its concerns about inconsistencies in evidence to the applicant, it is clear from the tribunal’s decision record that it did in fact did raise its concerns with the applicant, giving him an opportunity to address those concerns.

2. Notwithstanding the further information provided by the applicant, the tribunal concluded that it did not accept the applicant’s evidence and in fact, made a positive finding that the applicant ‘was not a witness of truth’ and ‘fabricated his material claims for the purpose of obtaining a… visa’.[38] This finding was reasonably open to the tribunal and discloses no error of law or failure to afford the applicant procedural fairness.

   [38] Court book page 209 at paragraph [52].

3. Finally, counsel for the Minister also addressed the tribunal’s decision not to agree to an adjournment of the hearing scheduled for 22 April 2016 and submitted that even if this were the subject of a claim of some form of denial of procedural fairness, such a submission ought to be rejected.  I agree with this submission.

4. It is evident from the tribunal’s reasons[39] that the tribunal considered whether to grant the applicant’s request for an adjournment of the hearing but decided against doing so for the following reasons:

   a)the application for review was lodged on 5 December 2014 and therefore the applicant had one year and four months to obtain legal advice prior to the hearing;

   b)during that period, the applicant had already obtained legal advice and filed a statutory declaration dated 10 February 2016, together with country information in support of his claims, which the tribunal concluded had been prepared by a lawyer;

   c)the hearing invitation was sent to him by email on 26 February 2016 and had not been returned undelivered; and

   d)the applicant had plenty of notice of the hearing to obtain further legal advice if he had wished.

   [39] Court book page 202 at paragraphs [13] to [15].

5. Each of these matters shows an evident and intelligible justification for the exercise of the tribunal’s discretion.  The decision to refuse a further adjournment does not evidence any error of law or failure to afford the applicant procedural fairness.

6. To the extent that the applicant complained about the fact that he relied upon his lawyer in putting together his application in the course of making oral submissions, this was the subject of submissions before the tribunal itself and the tribunal noted that the applicant’s submissions relating to his lawyer did not explain the various inconsistencies it found in his evidence and claims. 

7. It was open to the tribunal to conclude that any inconsistencies in the applicant’s evidence and claims was not due to the fault of his legal representatives. 

Conclusion

1. For each of these reasons, neither ground one nor ground two of the applicant’s application discloses a jurisdictional error, nor is any apparent from the tribunal’s decision record.

2. I therefore order that:

   a)the applicant’s application be dismissed; and

   b)the applicant pay the first respondent’s costs in a sum to be fixed.

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Judge Mercuri

Date: 6 March 2020