Cca17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2019] FCCA 1879

FEDERAL CIRCUIT COURT OF AUSTRALIA

CCA17 v MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS & ANOR [2019] FCCA 1879

Catchwords:
MIGRATION – Review of decision by Administrative Appeals Tribunal – whether Administrative Appeals Tribunal’s decision affected by jurisdictional error – whether the Administrative Appeals Tribunal failed to consider a claim or an integer of a claim – whether the Administrative Appeals Tribunal denied the applicant procedural fairness – whether the Administrative Appeals Tribunal’s findings were open to it – whether the Administrative Appeals Tribunal complied with s.425 of the Migration Act 1958 (Cth) – whether the Administrative Appeals Tribunal’s decision is adversely affected by a certificate issued pursuant to s.438 of the Migration Act 1958 (Cth) – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5, 5H, 31, 36, 65, 411, 422B, 424A, 424AA, 425,

438,474, 476

Migration Regulations 1994 (Cth), reg.2.01.

Treaties:
Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954), Art 1A.

Protocol Relating to the Status of Refugees, opened for signature 31 January 1967 (entered into force 4 October 1967).

Cases cited:

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174

Randhawa v Minister for Immigration, Local Government and Ethnic Affairs

(1994) 52 FCR 437

Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559

Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155

Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347

Abebe v Commonwealth of Australia (1999) 197 CLR 510

Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996)

185 CLR 259

NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004]

FCAFC 10

VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006]

FCAFC 29

Mazhar v Minister for Immigration & Multicultural Affairs [2000] FCA 1759

MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081

Minister for Immigration and Border Protection v SZMTA [2019] HCA 3

Applicant: CCA17

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

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1500 of 2017

Judgment of: Judge Emmett

Hearing date: 30 April 2019

Date of Last Submission: 30 April 2019

Delivered at: Sydney

Delivered on: 18 July 2019

REPRESENTATION

Applicant: Appeared in person with the assistance of an interpreter

Solicitors for the Respondents: Mr Jonathon Hutton
(Australian Government Solicitor)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1500 of 2017

CCA17

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 pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Administrative Appeals Tribunal dated 24 April 2017 (“the Tribunal”), affirming a decision of a delegate of the first respondent (“the Delegate”) made on 16 August 2016 refusing the applicant a Protection (Class XA) (Subclass 866) visa (“Protection Visa”).

2. The applicant is a citizen of Bangladesh and of Shia faith and Muslim ethnicity, who fears harm from Sunni students and the Bangladesh government in Bangladesh.

3. Prior to considering the proceeding before this Court, these Reasons provide the relevant procedural background, a summary of the legislative framework, a summary of the applicant’s claims in support of a Protection Visa, a summary of the decision of the Delegate, and a summary of the Tribunal’s review and decision.

Background

1. On 22 April 2011, the applicant arrived in Australia on a student visa.

2. On 19 February 2013, the applicant departed Australia and travelled to Bangladesh.

3. On 15 March 2013, the applicant returned to Australian and applied for a further student visa.

4. On 11 October 2013, the applicant’s student visa application was refused by a delegate of the first respondent. On 4 June 2014, the applicant sought merits review in the Migration Review Tribunal of that decision.

5. The decision of the Migration Review Tribunal affirmed the delegate’s decision and judicial review proceedings were dismissed in this Court on 2 July 2014 and in the Federal Court of Australia on 2 December 2014.

6. On 3 June 2015, the applicant lodged an application for a Protection Visa with the Department of Immigration and Border Protection (“the Department”).

7. On 16 August 2016, the Delegate refused the applicant’s application for a Protection Visa.

8. On 22 August 2016, the applicant lodged an application for review of the Delegate’s decision by the Tribunal.

9. On 24 April 2017, the Tribunal handed down its decision affirming the decision of the Delegate not to grant a Protection Visa.

10. On 16 May 2017, the applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.

Legislative Framework

1. Pursuant to s.65(1)(a) of the Act, if satisfied of a number of matters, the first respondent may grant a visa. Section 65(1)(b) of the Act provides that, if the first respondent is not satisfied about those matters, then the Minister must refuse to grant the visa.

2. Section 31(1) of the Act provides that there are to be prescribed classes of visa. One class of visa is a Protection Visa (reg.2.01 of the Migration Regulations 1994 (Cth) (“the Regulations”) and Schedule 1 to the Regulations).

3. Section 36(2)(a) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia in respect of whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).

4. Article 1A(2) of the Convention relevantly defines a refugee as a person who:

   “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”

5. Section 36(2)(aa) of the Act provides that:

   “(2)  A criterion for a protection visa is that the Applicant for the visa is:

   (aa) a non-citizen in Australia (other than a citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm.”

6. Sections 36(2A) and 5 of the Act defines “significant harm.”

7. Under s.411(1)(c) of the Act, a decision to refuse to grant a protection visa is a decision which may be reviewed by the second respondent.

8. The requirements of the natural justice hearing rule are exhaustively stated in Division 4 of Part 7 of the Act (s.422B(1) of the Act). Division 4 Part 7 includes ss.424A and 425, which provide that:

   “424A  Information and invitation given in writing by Tribunal

   (1)  Subject to subsections (2A) and (3), the Tribunal must:

   (a) give to the Applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review.

   425  Tribunal must invite Applicant to appear

   (1) The Tribunal must invite the Applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.”

9. Section 424AA of the Act permits the Tribunal to give orally to an applicant clear particulars of any information that the Tribunal considers would be the reason or part of the reason for affirming the decision under review. The Tribunal must ensure that the applicant understands the relevance of the information and the consequences of any information being relied upon. The Tribunal must also invite the applicant to comment on or respond to the information and advise the applicant that the applicant may seek additional time to comment on or respond to the information.

10. Under s.474(2) of the Act, a decision of the second respondent is a “privative clause decision”. Under s.474(1)(a) of the Act, a privative clause decision is final and conclusive.

11. However, a purported decision of the second respondent which is affected by jurisdictional error is not a decision which is made under the Act and therefore is not a privative clause decision (see Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476).

The applicant’s claims for protection

1. The applicant’s claims for protection can be summarised as follows:

   i)The applicant is a Shia Muslim and a student leader of Jatiyatabdi Chhatra Dal, a student affiliation of the Bangladesh National Party (“BNP”).

   ii)The applicant claimed that Shia students were killed by Sunni students.

   iii)The Bangladeshi government would target the applicant due to his anti-government tendencies and being a Shia Muslim.

   iv)In December 2009, the applicant was arrested and questioned by the police.

   v)In January 2010, the applicant was kidnapped and tortured by Harakat-ul-Jihad and Jamatul Mujahideen Bangladesh (“JMB”).

The Delegate’s decision

1. On 21 March 2016 and 11 April 2016, the applicant attended an interview with the Delegate.

2. The Delegate considered the applicant’s claims for protection and found as follows:

   i)The Delegate accepted that the applicant was a Shia Muslim.

   ii)The Delegate accepted that the applicant generally supports the BNP.

   iii)The Delegate did not accept that the applicant was involved in any political activities with Jatiyatabadi Chhatra Dal or the BNP in Bangladesh.

   iv)The Delegate did not accept that the applicant had a profile of a person who would be of adverse interest to declared terrorist groups such and JMB and Harakat-ul-Jihad.

   v)The Delegate did not accept that the applicant was approached, taken to a police station and questioned regarding his political and religious activities.

   vi)The Delegate did not accept that the applicant was of any interest to Bangladesh security forces or political opponents.

3. The Delegate was not satisfied that the applicant met the refugee criteria in either s.36(2)(a) or s.36(2)(aa) of the Act and therefore was not a person to whom Australia owed protection.

The Tribunal’s review and decision

1. On 22 August 2016, the applicant lodged an application for review of the Delegate’s decision by the Tribunal.

2. The applicant provided no further documents in support of his review application.

3. On 16 September 2016, the Tribunal wrote to the applicant informing him that the Tribunal had considered the material before it but was unable to make a favourable decision on that material alone.

4. On 21 October 2016, the applicant attended the Tribunal hearing and gave evidence.

5. The Tribunal explored the applicant’s claims with him in some detail at the hearing and put to him concerns it had about his evidence, noting his responses. The Tribunal put to the applicant country information for comment.

6. The Tribunal noted that on the information and material before it, there was nothing to suggest that JMB and Harakat-ul-Jihad had abducted Shia Muslims in an attempt to convert them to Sunni Islam.

7. To the extent that the applicant claimed that he was targeted because of his political beliefs, the Tribunal noted that JMB and Harakat-ul-Jihad were both anti-government terrorist organisations and was not satisfied that either organisation was interested in the applicant.

8. The Tribunal noted the applicant’s delay in applying for protection. The Tribunal considered the applicant’s arrival in Australia in April 2011, which was over a year after he claimed he was abducted, and his return to Bangladesh in 2013. The Tribunal found it difficult to accept that the applicant would have returned to Bangladesh if he had been living with the fear of being tortured, as allegedly occurred in January 2010.

9. While the Tribunal accepted that the applicant had a low level involvement with the Jatiyatabadi Chhatra Dal, the student wing of the BNP, it did not accept that:

   i)The applicant was beaten after he was abducted, leaving him with broken bones. The Tribunal was of the view that these were the result of a traffic accident, not being beaten by members of JMB or Harakat-ul-Jihad.

   ii)The JMB or Harakat-ul-Jihad threatened to kill the applicant if he did not leave Bangladesh; that they told him to leave his political party and his religion; that after he left Bangladesh they threatened to kill him if he returned to Bangladesh; and, that when he did return in 2013, they came looking for him and started threatening him again, forcing him to go into hiding.

   iii)The applicant was involved with the leader on the BNP, Abdul Matin Sarkar, as he was unable to name the seats in Dhaka in which he was campaigning; or that the applicant was arrested by police for his involvement with Abdul Matin Sarkar.

   iv)The applicant intended to become a full-time political activist in Bangladesh.

   v)There was a real chance that he would be persecuted for reasons of his real or imputed political opinion against the government.

   vi)There was a real chance the applicant would be persecuted for reason of his religion as a Shia Muslim.

   vii)The applicant would be kidnapped by Sunni Muslims.

10. The Tribunal found that there was no evidence to support a finding that the applicant would suffer harm for a Convention related reason were he to return to Bangladesh; that the applicant did not have a well-founded fear of persecution in Bangladesh; and, therefore, the applicant was not a person to whom Australia owed protection obligations.

11. The Tribunal also considered whether the applicant met the alternative criteria for complementary protection under s.36(2)(aa) of the Act and concluded that he did not. Accordingly, the Tribunal found that there are no substantial reasons for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to the receiving country, Bangladesh, there is a real risk that the applicant would suffer significant harm.

12. Accordingly, having determined that the applicant did not satisfy the refugee criterion in s.36(2)(a) of the Act, or the alternative criterion in s.36(2)(aa) of the Act, the Tribunal affirmed the decision under review.

13. The Tribunal noted that there was a certificate issued pursuant to s.438 of the Act (“s.438 Certificate”) over documents on the Department's file. The Tribunal considered that s.438 Certificate was invalid because it did not specify any reason why the disclosure of the documents were contrary to the public interest. The Tribunal noted that the s.438 Certificate pertained to a Compliance Client Interview and a record of a SERCO Self Harm Assessment Interview. The Tribunal found that the Compliance Client Interview was set out in the Delegate’s decision to the extent that it was relevant and that the SERCO interview was not relevant.

The proceeding before this Court

1. The applicant was unrepresented before this Court, although had the assistance of a Bengali interpreter.  

2. On 17 August 2017, the applicant attended a directions hearing before a registrar of this Court. On that occasion, the applicant was provided with the contact details of legal services providers and interpreting and translation services in documents headed in his own language. The applicant was also given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, including any transcript of the Tribunal hearing, as well as submissions in support.

3. At the commencement of today’s hearing, the applicant confirmed that he has not filed any amended application, evidence or submissions in support of his application and that he has no further documents to present to the Court this morning in support of his application.

4. I explained to the applicant that the role of this Court is very different to that of the Tribunal, and that it is not for this Court to reconsider his claims and reach different findings or conclusions. I also explained to the applicant that the only issue before this Court is whether or not the decision of the Tribunal was made according to law. I explained to the applicant that this Court has no power to interfere with the decision of the Tribunal, unless the Court is satisfied that the decision of the Tribunal is affected by a mistake going to its jurisdiction. I further explained to the applicant that disagreement with the findings and conclusions of the Tribunal rarely, by itself, establishes such a mistake.

5. The applicant confirmed that he relied on the grounds contained in the Application, filed on 16 May 2017, as follows:

   “1. The Administrative Appeals Tribunal's decision affected by jurisdictional error.

   Particulars:

   The Administrative appeals tribunal failed to consider a claims or integer of claims and failed to consider whether applicant had a well-founded fear of persecution in the reasonable foreseeable future upon return to his own country of origin. The Tribunal had no jurisdictions to make such decision because its reasonable satisfaction was not arrived in accordance with the provisions of the Migration Act 1958. The Tribunal denied the applicant procedural fairness by reaching conclusions that the applicant is not a credible witness and his claims were implausible. The Tribunal member in his decision records did not ask any conventions relation questions whether the applicant had fear of persecution in his own country of residence.

   2. The Administrative Appeal Tribunal made findings without evidence. The Administrative Appeals Tribunal rejected the applicant's evidence before the Tribunal and failed to believe the applicant as a credible witness, such failure constituted a breach of s425 of the Migration Act 1958 (Cth).

   Particulars:

   The tribunal in her decision records and interview records failed to consider any evidence put by the applicant as credible, believable without any evidence. The honourable member has discredited the evidence just only the applicant's inability to remember or recall various issues and the dates at the time of hearing.”

6. Each of the grounds was interpreted for the applicant and the applicant was invited to make submissions in support of each of the grounds and in support of the application generally.

Ground 1

1. Ground 1 asserts that the Tribunal failed to consider a claim or integer of a claim made by the applicant; that the applicant was denied procedural fairness; and, that the Tribunal member did not ask any Convention related questions about the applicant’s fear of persecution in Bangladesh.

2. I asked the applicant what was the claim or integer that he asserted the Tribunal had failed to consider. The applicant responded that if he was sent home he would be persecuted or killed and that his evidence was not accepted.

3. I also asked the applicant in what way he was denied procedural fairness. The applicant responded that the Tribunal did not put emphasis on what he said because it did not accept what he said.

1. I also asked the applicant what were the Convention related questions that the applicant asserted the Tribunal should have asked. The applicant responded that he should have been asked what would be the result if he was sent home.

2. The applicant then stated that if he was returned home there was a big chance of him being killed.

3. A fair reading of the Tribunal’s decision record does not support any of the assertions made in Ground 1 or the applicant’s oral submissions.

4. The Tribunal summarised the applicant’s claims made in his Protection Visa application and noted that if returned to Bangladesh he would be kidnapped and murdered by Sunni Muslim students because he had been a Shia Muslim student leader. The Tribunal noted the applicant’s claim that he had been arrested and harmed by Sunni Muslim fundamentalist police officers and that he also feared harm from the government in Bangladesh due to being anti-government and Shia. The applicant claimed that he had been arrested and tortured by secret police but was unable to access help from the government because of his political activities against the government.

5. The Tribunal then noted the applicant’s interview with the Delegate and summarised the applicant’s expansion of his claims at that interview. In particular, the Tribunal noted the applicant’s claims before the Delegate that in December 2009 he had been beaten with iron rods for 30 minutes, cut with a sword, threatened with death if he did not leave the country and was told that he had to leave his religion and his political party. The applicant said he had been targeted because he was an active Shia and that the assault had resulted in 2 broken bones in each of his feet and his right shoulder had also been fractured. The applicant then said he was dropped in the forest where he was ultimately picked up and taken to Sharmita Hospital on 7 February 2010, where he remained for 2 months. The Tribunal noted that the applicant told the Delegate that he could produce medical records which said he had been injured in an accident. The Tribunal also noted that the applicant told the Delegate that his father had tried to report the incident but that police refused to take a report.

6. The Tribunal noted that the applicant told the Delegate that he had not been involved in the BNP in Australia and was no longer interested in politics.

7. The Tribunal then noted that at the hearing before it, the applicant further expanded on his claims. The Tribunal noted that he stated he had not practiced his religion in Australia because of the mental distress of being threatened in Bangladesh. The applicant then referred to the attack in January 2010 and the Tribunal put to him that he had not come to Australia until over a year after that. The applicant confirmed that he had come to Australia in April 2011.

8. The Tribunal noted the applicant’s claims that he continued to receive threats after the attack in January 2010 and told the Tribunal that after he arrived in Australia, his parents told him that terrorist organisations had said that if he returned to Bangladesh he would be killed. The Tribunal noted that the applicant said that he was still getting threats from terrorist organisations through his parents. When those claims were explored, the Tribunal noted that the applicant said that he had received only 1 threat since he had been in Australia.

9. The Tribunal explored with the applicant that he returned to Bangladesh in 2013 and noted the applicant’s assertion that he thought the threats of killing him upon return to Bangladesh had been false and he badly wished to see his parents. The applicant then told the Tribunal that he had found the situation even worse so had returned to Australia. The applicant said that once he returned to Australia, the threats commenced again to kill him if he returned home. The Tribunal explored these claims with the applicant in some detail and put to the applicant matters of concern it had about his evidence and noted the applicant’s response.

10. In particular, the Tribunal put to the applicant that there was no country information before it to suggest that either the JMB or the Harakat-ul-Jihad abducted Shia Muslims in an attempt to convert them by force to Sunni Islam. The Tribunal also noted that it put to the applicant that if they had been interested in him because he was a member of the Shia minority, then presumably they would be interested in all members of his family. The applicant responded that only he had been abducted and tortured but he was not sure why they had done this.

11. The Tribunal also put to the applicant that there was no information before it to suggest that the JMB or the Harakat-ul-Jihad would have been interested in the fact that the applicant had belonged to the Jatiyatabadi Chhatra Dal, the student wing of the BNP in Bangladesh. The Tribunal noted the applicant’s response that he used to talk against the government but again responded that he did not know why those groups had done this.

12. The Tribunal also explored with the applicant his history with his involvement with the BNP noting the applicant’s evidence that he had not been involved in full time political activities and had just been a member and worked with them when they had needed him. The Tribunal explored with the applicant the fact that he did not know the names of electorates in which candidates were standing.

13. The Tribunal noted that it put to the applicant that given his description of his political involvement, the Tribunal found it difficult to believe that he would have attracted any attention of police and was having great difficulty in believing that he was telling the truth. The Tribunal also put to the applicant that it was very difficult to accept that he would have been abducted by the JMB or that Harakat-ul-Jihad.

14. The Tribunal did accept that the applicant had spent some time in hospital in Dhaka but that this had been because he had ben involved in a traffic accident. The Tribunal put to the applicant that his injuries, being broken bones in his feet and a fractured right shoulder were far more consistent with a traffic accident than being beaten with iron rods.

15. In relation to the applicant’s claim to have been beaten and that he could produce medical records, the Tribunal noted that such records had never been produced. The Tribunal also noted that when the applicant was applying for a student visa and was examined by a doctor around 15 February 2011, the applicant told the doctor that he had been involved in a CNG accident to account for his injuries. The Delegate’s decision explained that a CNG is a type of natural gas vehicle often called an auto-rickshaw or three-wheeler. The Delegate referred to country information that CNG accidents are common in Bangladesh and due to the frailty of the vehicles used injury was not uncommon.

16. The Tribunal also put to the applicant that when first detained in Australia, the applicant had not mentioned any of the problems that he now said that he had because of his religion or involvement with the Jatiyatabadi Chhatra Dal or the BNP.

17. The Tribunal also explored with the applicant why he did not apply for protection on his return to Australia in 2013. The Tribunal noted the applicant’s response that he had not known about the Act or about a Protection Visa or otherwise he would have applied sooner. The applicant had said that it had not been until he had been placed in immigration detention that he came to know that he could apply for a Protection Visa.

18. Ultimately, for the concerns that it had expressed and discussed with the applicant, the Tribunal rejected comprehensively the applicant’s claims of past harm in Bangladesh, including his claim to have been abducted and tortured by members of the JMB or Harakat-ul-Jihad.

19. The Tribunal did accept that the applicant had a low-level involvement with the Jatiyatabadi Chhatra Dal but was not satisfied if returned to Bangladesh that he would be involved in any opposition political activity of a sort that would attract adverse attention of the government; nor, would he be prevented from being involved in such political activity because of a fear of being persecuted for reason of his involvement. The Tribunal accepted that the applicant and his family are supporters of the BNP but did not accept that there is a real chance that the applicant would be persecuted for reasons of his real or imputed political opinion against the government or in support of the BNP if he retuned to Bangladesh now or in the reasonably foreseeable future.

20. The Tribunal rejected the applicant’s claims to be at risk by reason of his religion and found that the applicant was not in fact particularly religious. The Tribunal was not satisfied that the applicant would be prevented from becoming more actively involved in practising his religion.

21. The Tribunal found that there was nothing in the independent evidence before it to suggest that Shia Muslims or Shia Muslim students or student leaders are being arrested and tortured by Sunni Muslim fundamentalist police or kidnapped and murdered by Sunni Muslim students in Bangladesh in the way claimed by the applicant.

22. Based on those findings, the Tribunal did not accept that there are substantial grounds for believing as a necessary and foreseeable consequence of the applicant being removed from Australia to Bangladesh that there was a real reason he will suffer significant harm.

23. Accordingly, the Tribunal found that the applicant did not meet the refugee criteria in s.36(2)(a) of the Act or the complementary criterion in s.36(2)(aa) of the Act and therefore affirmed the decision under review.

1. The Tribunal’s findings were open to on the evidence and material before it and for the reasons it gave including its adverse credibility findings. As is clear from the summary above, the Tribunal’s findings were arrived at after a probative exploration with the applicant of his various claims during which the Tribunal put to the applicant its concerns and noted the applicant’s responses. The Tribunal’s findings were, in the circumstances, logical and not without an intelligible justification (see ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 at [83] per Griffiths, Perry, Bromwich JJ).

2. A fair reading of the Tribunal’s decisions record makes clear that the Tribunal considered in detail all claims made by the applicant including the applicant’s claim to be persecuted or killed if he was returned to Bangladesh.

3. In relation to the applicant’s assertions that the Tribunal did not accept what he said thereby denying him procedural fairness, it is well established that the Tribunal is not required to accept uncritically any and all claims made by an applicant (see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 per Beaumont J; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596 per Kirby J; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70 per Wilcox J). Nor does the Tribunal have to possess rebutting evidence before holding that a particular assertion was not made out (see Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J).

4. In relation to the applicant’s complaint that the Tribunal should have asked unidentified Convention related questions, a fair reading makes clear that the Tribunal’s questions were all relevant to the issue before it as to whether the applicant met the Convention criteria or the complementary criterion for a Protection Visa.

5. The fact that the applicant did not agree with the findings and conclusions of the Tribunal suggests that the applicant’s complaints were more in the nature of a disagreement with the findings and conclusions of the Tribunal thereby inviting merits review which this Court cannot undertake (see Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [53]-[54] per Gleeson CJ and McHugh J; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ).

6. Accordingly Ground 1 is not made out.

Ground 2

1. Ground 2 asserts that the Tribunal made findings without evidence and disbelieved the applicant because of his inability to remember or recall various issues and dates.

2. I asked the applicant what he meant by Ground 2 and the applicant responded simply that he would be killed if was sent back.

3. Ground 2 does not identify any particular finding of the Tribunal which is not supported by evidence. As stated above, the Tribunal’s findings, including its adverse credibility findings, were open to it on the evidence and material before it and for the reasons it gave. As stated above, they were arrived at following a detailed and probative exploration by the Tribunal of the applicant’s claims.

4. The evidence which the Tribunal did accept was the independent country evidence before it which was found not to support the applicant’s claims. It is well accepted that it is a matter for the Tribunal the country evidence to which it has regard and the weight it puts upon that evidence (see NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10, and VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29). The country information was current and relevant and was identified with specificity in the Tribunal’s decision record, particularly, the Department of Foreign Affairs and Trade Country Information Report on Bangladesh, dated 5 July 2016.

5. To the extent that Ground 2 refers to a breach by the Tribunal of s.425 of the Act, the applicant did not particularise any such breach and none is apparent on the face of the Tribunal’s decision record. The applicant was invited to attend a hearing before the Tribunal by letter dated 7 October 2016. The letter of invitation was in accordance with s.425 of the Act. The applicant in fact attended that hearing, where, as stated above, his claims were explored in great detail and matters put to him by the Tribunal in respect of matters about which it was concerned. The Tribunal’s decision record makes clear that the applicant discussed his claims with the Tribunal and engaged with the Tribunal on all relevant matters.

6. There is nothing on the face of the Tribunal’s decision record and nothing identified by the applicant to suggest that the hearing was a “hollow shell or an empty gesture” (see Mazhar v Minister for Immigration & Multicultural Affairs [2000] FCA 1759 at [31] per Goldberg J).

7. Accordingly, Ground 2 is not made out.

Section 438 Certificate

1. Documents the subject of a certificate and notification under s.438 of the Act were tendered by the first respondent and marked Exhibit 2R.

2. The Tribunal referred to the certificate and correctly found it to be invalid because it does not specify any reasons why the disclosure of documents would be contrary to public interest. That is insufficient in and of itself to amount to jurisdictional error (see MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081).

3. The Tribunal then described the folios in detail. In particular, the Tribunal noted the information contained the record of a Compliance Client Interview which it found was set out in the Delegate’s decision. The other folios related to a SERCO Self-Harm Assessment Interview which the Tribunal found not to be relevant to the review.

4. True it is that the issuing of such a certificate triggers an obligation of procedural fairness on the part of the Tribunal in the terms identified by Bell, Gageler and Keane JJ in Minister for Immigration and Border Protection v SZMTA [2019] HCA 3 at [3] (“SZMTA”):

   "3. The Full Court was also correct to take the view that an incorrect notification results in jurisdictional error if, and only if, the incorrect notification is material, again in the sense that it operates to deprive the applicant of the possibility of a successful outcome."

5. Materiality, in the case of an invalid notification, is essential to the existence of jurisdictional error. A breach is material to a decision only if compliance can realistically have resulted in a different decision (see SZMTA at [2], [45] – [49] per Bell, Gageler and Keane JJ).

6. This was not an issue raised by the applicant.

7. On the basis of the evidence before this Court contained in Exhibit 2R and in the relevant documents, filed on 14 July 2017, marked Exhibit 1R, there is nothing on the face of the material to suggest that the issuing of the s.438 Certificate, or any of the documents subject to the s.438 Certificate, gave rise to any jurisdictional error on the part of the Tribunal.

8. Accordingly, no jurisdictional error can be made out with respect to the s.438 Certificate.

Conclusion

1. A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims being made by the applicant; explored those claims with the applicant at a hearing; and, had regard to all material provided in support. The Tribunal put to the applicant matters of concern it had about his evidence and noted the applicant’s responses. The Tribunal put to the applicant independent country information before it and invited the applicant to comment upon it.

2. The Tribunal then made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for the reasons it gave. A fair reading of the Tribunal’s decision record makes clear that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law.

3. In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.

4. The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no power to interfere.

5. The proceeding before this Court should be dismissed with costs.

I certify that the preceding ninety-nine (99) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Date: 18 July 2019