CDI16 v Minister for Immigration

Case •

[2020] FCCA 200

•

7 February 2020

FEDERAL CIRCUIT COURT OF AUSTRALIA

CDI16 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 200
Catchwords:
MIGRATION – Application for review of decision of the Administrative Appeals Tribunal – show cause hearing – factors considered – no arguable case raised by the application – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 424A, 425, 476, pt.7 div 4
Federal Circuit Court Rules (Cth), rr.1.06, 44.12, 44.13, pt.44
Cases cited:
General Steel Industries Inc v Commissioner for Railways (NSW)
[1964] HCA 69; (1969) 112 CLR 125; (1964) 38 ALJR 253
Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598; (1993) 67 ALJR 886;
(1993) 116 ALR 545
Applicant A135/2002 v Minister for Immigration & Multicultural & Indigenous
Affairs [2003] FCA 708
Applicant A163 of 2002 v Minister for Immigration & Multicultural &
Indigenous Affairs [2003] FCA 677
Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62;
(1949) 23 ALJR 48
Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552; (2000) 74 ALJR 1219;
(2000) 173 ALR 665
Xie v The Immigration Department [1999] FCA 365
Kiao v West [1985] HCA 81; (1985) 159 CLR 550; (1985) 60 ALJR 113;
(1985) 62 ALR 321
Randhawa v Minister for Immigration, Local Government & Ethnic Affairs
[1994] FCA 1253; (1994) 52 FCR 437
Shi v Migration Agents Registration Authority [2008] HCA 31;
(2008) 235 CLR 286; (2008) 82 ALJR 1147; (2008) 248 ALR 390;
(2008) 48 AAR 345; (2008) 103 ALD 467
Minister for Immigration and Multicultural Affairs v Wang [2003] HCA 11;
(2003) 215 CLR 518; (20030 77 ALJR 786; (2003) 196 ALR 385;
(2003) 72 ALD 577
Re Minister for Immigration and Multicultural Affairs; Ex parte
Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405; (2000) 168 ALR 407;
Kopalapillai v Minister for Immigration and Multicultural Affairs
[1998] FCA 1126; (1998) 86 FCR 547
CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146;
(2016) 253 FCR 496; (2016) 70 AAR 413; (2016) 253 FLR 496
Saeed v Minister for Immigration and Citizenship [2010] HCA 23;
(2010) 241 CLR 252; (2010) 84 ALJR 507; (2010) 267 ALR 204;
(2010) 115 ALD 493
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs
[2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515;
(2006) 231 ALR 592; (2006) 93 ALD 300
Mazhar v Minister for Immigration & Multicultural Affairs [2000] FCA 1759;
(2000) 183 ALR 188; (2000) 64 ALD 395
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs
[2004] FCAFC 10
Minister for Immigration v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507;
(2001) 75 ALJR 679; (2001) 178 ALR 421; (2001) 65 ALD 1
VFAB v Minister for Immigration & Multicultural & Indigenous Affairs
[2003] FCA 872; (2003) 131 FCR 102; (2003) 77 ALD 23
Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 75 ALJR 982;
(2001) 179 ALR 425
NAZY v Minister for Immigration and Multicultural and Indigenous Affairs
[2005] FCA 744; (2005) 87 ALD 357
Minister for Immigration & Multicultural Affairs v Al Shamry [2001] FCA 919;
(2001) 110 FCR 27
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26;
(2007) 81 ALJR 1190; (2007) ALR 609; (2007) 96 ALD 1
Associated Provincial Picture Houses Ltd v Wednesbury Corporation
[1947] EWCA Civ 1; [1947] 2 All ER 680; [1948] 1 KB 223
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2)
[2004] FCAFC 263; (2004) 144 FCR 1; (2004) 219 ALR 27
Dranichnikov v Minister for Immigration and Multicultural Affairs
[2003] HCA 26; (2003) 77 ALJR 1088; (2003) 197 ALR 389;
(2003) 73 ALD 321
Applicant: CDI16
First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION
Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL
File Number: SYG 2069 of 2016
Judgment of: Judge Nicholls
Hearing date: 30 January 2020
Date of Last Submission: 30 January 2020
Delivered at: Sydney
Delivered on: 7 February 2020

REPRESENTATION

Applicant: In person
Representative for the Respondents: Ms A. Zinn
Solicitors for the Respondents: Mills Oakley Lawyers

ORDERS

  1. The name of the first respondent is amended to read “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

  2. The application made on 2 August 2016 is dismissed pursuant to Rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

  3. The applicant pay the first respondent’s costs set in the amount of $3606.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2069 of 2016

CDI16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

  1. This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 2 August 2016 seeking review of the decision of the Administrative Appeals Tribunal (“the Tribunal”) which, on 28 June 2016, affirmed the decision of the Minister’s delegate (“the delegate”) to refuse a protection visa to the applicant.

  2. In evidence before the Court is a bundle of relevant documents filed and tendered by the Minister (“the Court Book” – “CB”, “RE1”) and the affidavit of the applicant made on 18 December 2016.

Background

  1. The applicant is a citizen of Bangladesh who arrived in Australia on 6 May 2013 as an unauthorised maritime arrival (CB 42–CB 43). He applied for the visa on 31 July 2013 (CB 27–CB 105). The applicant’s claims to protection were contained in a Statutory Declaration dated 31 July 2013 and attached to his visa application (CB 61–CB 63).

  2. The applicant claimed to fear harm on the basis of his political opinion in that he had been “a supporter and an active member” of the Bangladesh National Party (“BNP”) since 2005 (CB 61.8). The applicant claimed to having been involved in promoting the BNP and educating people about its policies. Subsequently, the BNP lost the election to the Awami League (“AL”) in 2008, and the applicant claimed to having been “threatened” by the AL members in, or around, 2009 (CB 62.3). Following this incident, the applicant claimed to have moved to Dhaka for fear of his safety.

  3. In 2012 the applicant returned to his village and following a meeting with the BNP, he claimed he was targeted by the AL and taken “to a house located in the jungle” and detained “for a few hours” where he was “physically assaulted and subjected to burns” (CB 62.6). They threatened to kill the applicant if he did not support the AL. The applicant was released and returned to Dhaka and a year later left Bangladesh for Australia.

  4. The delegate refused the application on 17 October 2014 (CB 143– CB 168). The applicant applied for review to the Tribunal on 28 October 2014 (CB 169–CB 170). The applicant was invited to, and attended, a hearing before the Tribunal on 8 March 2016 (CB 181–CB 185 and CB 214–CB 216). The applicant’s representative provided written submissions to the Tribunal via email on 7 March 2016 (CB 193– CB 211).

The Tribunal

  1. The Tribunal affirmed the delegate’s decision on 28 June 2016 (CB 219– CB 230). The Tribunal found aspects of the applicant’s claims to be “evasive, vague, lacking in detail, contradictory and unconvincing” ([19] at CB 222–CB 223). The applicant gave inconsistent evidence as between his protection visa application, his interview with the delegate and at the hearing before the Tribunal. This included when he became a member of the BNP, whether his father and brother were members of the BNP, whether he voted in the 2008 Bangladesh election and new claims in relation to an incident that he said occurred in 2010 ([21] at CB 223– [34] at CB 225).

  2. The Tribunal also had concerns with the applicant’s claimed involvement with the BNP since arriving in Australia, and the authenticity of two letters produced by the applicant to the Tribunal at the hearing, which did not support the applicant’s claims ([36] at CB 226 –[45] at CB 227 and see [57] at CB 229).

  3. The Tribunal found that the applicant was “not a witness of truth” and had “fabricated his material claims for the purpose of obtaining a [p]rotection visa” ([51] at CB 228). The Tribunal did not accept that the applicant was “a supporter or a member or was in any way associated with the BNP” ([55] at CB 229) and did not accept that the applicant or his family were “of adverse interest to the AL, its leaders, members or supporters or the Bangladeshi authorities” ([58] at CB 229).

  4. The Tribunal found that the applicant did not meet the criteria in s.36(2)(a) or s.36(2)(aa) for the grant of the visa and affirmed the delegate’s decision on this basis ([62] at CB 229 to [69] at CB 230).

  5. The Minister’s written submissions provide an extensive report on the Tribunal’s analysis and findings.  Importantly, it is a fair representation:

    “16. The Tribunal set out the procedural history to the applicant’s PVA and the statutory criteria for the grant of a Protection via [sic: visa] (CB 220-221, [1]-[10]) and accurately summarised the applicant’s claims for protection (CB 221-222, [11]; [14]).

    17. The Tribunal accepted the applicant was a citizen of Bangladesh (CB 222, [17] and found aspects of his evidence were evasive, vague, lacking in detail, contradictory and unconvincing. The Tribunal found that there were a “number” of inconsistencies in his evidence and that he made new claims throughout the process. Accordingly, the Tribunal was concerned about the credibility and veracity of the applicant’s claims (CB 222-223, [19]).

    18. The Tribunal found that the applicant had given evidence that was inconsistent with independent country information (ICI) about the procedure to become a member of the BNP, which raised concerns about whether the applicant was a member of the BNP (CB 223, [21]-[22]). The Tribunal also found that the applicant had limited knowledge of the BNP and that this was not consistent with his claims (CB 223, [23]-[24]). The Tribunal found that the applicant’s evidence given during the hearing that he did not vote in the parliamentary elections in 2008 because he was under a lot of pressure gave rise to a new claim that he had not made in his PVA or during the interview with the delegate and this was inconsistent with his evidence at the interview. The Tribunal found that this inconsistency raised concerns in relation to the applicant’s credibility (CB 223-224, [25]).

    19. The Tribunal considered the applicant’s evidence at delegate’s interview to the effect that although the AL won the 2008 parliamentary election, the AL member in the applicant’s constituency lost her seat. The Tribunal found this evidence was inconsistent with information from the Bangladesh Election Commission website, which indicated the AL member won her set in the 2008 election. Having regard to the applicant’s claimed level of involvement with the BNP, the Tribunal expected the applicant would know who won the seat in his constituency and found this raised further concerns about his credibility (CB 224, [26]-[27]).

    20. The Tribunal also found that the applicant had given further inconsistent evidence in relation to the claimed incidents with the AL (CB 224-225, [28]-[31]). The Tribunal found that the applicant’s version of events was “significantly different” from what he claimed in his PVA. For example, at the hearing he claimed he was involved in an incident in 2010, but in his PVA he did not make any claims in relation to an incident in 2010. Instead, he claimed he was involved in an incident in 2012 where he was taken to a house, detained for a few hours, beaten, burned, threatened and then released. The Tribunal found the applicant was unable to explain these inconsistencies (CB 225, [32]).

    21. Further, the Tribunal found the applicant had given inconsistent evidence about why he ceased his employment in a textile factory in Dhaka and whether the applicant’s family members had experienced any problems with the AL. The Tribunal found that the applicant initially claimed at the hearing that he ceased work because he had returned to his village in 2012 and was beaten by the AL members. However, later in the hearing he claimed he ceased working because he made a mistake and his manager “got upset and scolded” him so he left and went to his sister’s house. The Tribunal found that this inconsistency raised further concerns as to the applicant’s credibility and veracity of his claims (CB 225, [33]).

    22. The Tribunal also found that the applicant had claimed that his family had not experienced and problems with the AL and that he was the only one. However, the Tribunal noted that at the end of the hearing, the applicant made several new claims namely, that: his family received a lot of threats; supporters of the AL went to his family home and asked about him; AL supporters threatened his father; AL supporters went to his home and beat his brother, who sustained injuries to his hand and required stiches; and that his wife was beaten up. The Tribunal was concerned about the “changes, contradictions and new claims” in the applicant’s evidence and did not accept his explanation for those inconsistencies (CB 225-226, [34]-[35]).

    23. The Tribunal also did not accept that the applicant had continued to support the BNP while he was in Australia and his claims in this respect raised further concerns about his credibility (CB 226, [36]-[38]).

    24. The Tribunal considered an untranslated letter from the BNP provided to it by the applicant at the hearing which was translated by the interpreter at the hearing. The Tribunal found the letter contained a number of statements that were inconsistent with the applicant’s evidence. For example, the letter referred to the applicant’s “late” mother but on the applicant’s evidence she was still alive and living in Bangladesh. Additionally, the letter claimed the applicant was beaten and this led to his return to Dhaka. However, the applicant never claimed that he was beaten prior to departing for Dhaka in 2009. His evidence was that he moved to Dhaka in 2009 after being threatened. Further, the letter asserted that the applicant’s family was subjected to “inhumane torture” when he returned to his village in 2012, yet the applicant never claimed he or his family were subjected to inhumane torture in 2012. Accordingly, the Tribunal found that the letter did not support the applicant’s claims and was not satisfied that the letter was a legitimate document” (CB 227, [40]-[42]).

    25. The Tribunal also considered another untranslated letter provided to it by the applicant at the hearing which was also translated by the interpreter at the hearing. The Tribunal considered the applicant’s evidence that: the letter related to the death of his friend (S); that there were no witnesses to S’s death; the applicant’s family thought S was killed by the AL; and S’s family did not “lodge a case” because the police would not accept it because the identity of the killer was unknown (CB 227, [43]). The Tribunal summarised the contents of the letter and found it was inconsistent with the applicant’s evidence as it identified who killed S namely, members of the AL (CB 227, [43]). The Tribunal was concerned about the authenticity of this document (CB 227, [45]).

    26. The Tribunal considered the applicant’s post interview submissions dated 6 October 2014 and the claim that he would suffer serious harm on the basis of his membership of a particular social group as a returnee form a western country, which was also repeated in the pre-hearing submissions to the Tribunal. The Tribunal found that the applicant did not appear to be aware of this claim (CB 228, [47]). As the Tribunal was unable to find any ICI which supported the applicant’s claim to fear harm as a returnee from a western country, it found that this was an “ambit” claim made without any supporting evidence (CB 228, [48]). The Tribunal found it was not persuaded by the applicant’s post-interview and pre-hearing submissions (CB 228, [49]).

    27. Having considered the applicant’s claims, all of the evidence and the submissions, the Tribunal found the applicant was not a witness of truth and the he had “fabricated” his material claims for the purpose of obtaining a Protection visa (CB 228, [51]).

    28. The Tribunal accepted various background facts put forward by the applicant (CB 228-229, [52]-[54]) but did not accept his key claim that he was a supporter or a member of the BNP or in any way associated with the BNP or its student wing in Bangladesh. Accordingly, the Tribunal also did not accept any of the applicant’s claims which flowed from his key claim (CB 229, [55]-[58]) and was not satisfied that the applicant would face serious harm now or in the reasonably foreseeable future if he returned to Bangladesh for any of the reasons he claimed and did not satisfy the requirements of s 36(2)(a) (CB 229, [59]-[62]).

    29. As the Tribunal had rejected the entirety of the applicant’s claims to fear harm in Bangladesh, the Tribunal was also not satisfied that he faced a real risk of significant harm if he was returned to Bangladesh and the applicant did not satisfy s 36(2)(aa) (CB 229-230, [63]-[66]).”

    [Errors in the Original.]

The Application to the Court

  1. The applicant made his application to the Court on 2 August 2016. The grounds of the application are in the following terms:

    “1. The Administrative Appeal Tribunal officer erred in law to come to a decision dismissing my application not finding that the Department of Immigration and Border Protection did not consider that I was a victim of persecution for my political belief as an activist of Bangladesh Nationalist Party(BNP) prior to my departure from Bangladesh

    2. The Honorable Administrative Appeals Tribunal officer did not find that there was lack of procedural fairness in the decision of the Department of Immigration and Border Protection to consider that I was physically abused for my political belief and my life was at risk which forced me to leave Bangladesh for safety of my life. I was not accepted by Tribunal as a credible witness and refused my application.

    3. The Administrative Appeals Tribunal Officer made error to find that the Department of Immigration and Border Protection failed to accept that the persecutions I experienced in Bangladesh and I shall be imprisoned and tortured if returned to Bangladesh. The Tribunal refused my claim on the ground that I am not a credible witness for my claims though I presented all relevant documents and evidences in support of my claims before the Tribunal prior to hearing.

    4. The Administrative Appeal Tribunal officer erred in not finding that the DIBP erred in law amounting to jurisdictional error in finding that I do not have genuine fear of persecution for a convention reason and I do not meet the criteria set out in s 36(2) of Protection Visa.

    5. The Administrative Appeals Tribunal officer erred in not finding that the DIBP refused my application on the ground that I would face punishment would be completely politically motivated.”

Before the Court

  1. The parties first appeared before the Court on 20 October 2016 and various orders were made by consent by a Registrar of the Court which, amongst other things, gave the applicant the opportunity to file any amended application, further evidence by way of affidavit and written submissions. The applicant did file written submissions which also sought to raise additional grounds.  Both the submissions and the additional grounds are addressed below.

  2. A Registrar of the Court listed the application for a show cause hearing pursuant to rule 44.12 of the Federal Circuit Court Rules 2001 (Cth). At the show cause hearing the applicant appeared in person with the assistance of an interpreter in the Bengali language. The Minister was represented by a solicitor.

  3. The hearing was adjourned to allow the interpreter to translate the Minister’s written submissions for the applicant who claimed not to have received them.

  4. On resumption the applicant stated that the grounds of the application, his written submissions and the additional grounds were drafted by a friend whom he confirmed was not a lawyer.

The Issue Before the Court

  1. The issue for the Court is whether the grounds of the application raise a legally arguable case for the relief that the applicant seeks. From what is stated in his application, the relief the applicant seeks is an order that the Tribunal’s decision be quashed, and that his case be returned to the Tribunal for reconsideration according to the law.

  2. In the circumstances, if the Court cannot be satisfied that an arguable case is raised against the Minister, the application will be dismissed. Given the summary nature of any such dismissal, the application should only be dismissed where there is no real question to be tried, where the claims are clearly untenable and cannot succeed (General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 especially at [8]–[9], Webster v Lampard (1993) 177 CLR 598, Applicant A135/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 708 at [3]–[6] and Applicant A163 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 677 at [1]), the claims are groundless (Dey v Victorian Railways Commissioners (1949) 78 CLR 62), where there is a high degree of certainty about the outcome (Agar v Hyde (2000) 201 CLR 552), or it is a hopeless case that would fail if it were to go to a final hearing (Xie v The Immigration Department [1999] FCA 365).

The Applicant’s Submissions

  1. It would appear that by his written submissions the applicant did not seek to abandon the grounds of the originating application, but sought to raise additional grounds of review.  These are addressed below.

  2. Before this Court, unrepresented applicants in migration matters often rely on grounds and submissions drafted by what are generally described as “friends” or “law students”. On occasion these provide a useful avenue for the Court to consider the application within some relevant judicial review context.

  3. This is not such a case. Whoever drafted the grounds of the originating application, the submissions and the grounds of the amended application appears to have abandoned his or her studies or research some decades in the past.  One example is sufficient to illustrate this point.

  4. The submissions assert that the Tribunal ignored:

    “The relevant principle of procedural fairness contravened by the Tribunal in this case is expressed by Brennan J in the following terms in Kiao v West [1985] 159 CLR 550:

    In the ordinary case … …a opportunity should be given to deal with adverse information and that is credible, relevant and significant to the decision being made”.

  5. With respect, it can be no doubt about what the High Court said in 1985 as an expression of principles of procedural fairness at common law.  However, in the intervening decades the changes in the relevant statutory regime, and the many considerations by the courts as to the applicable and relevant principles of procedural fairness to the circumstances of a case such as the present one, make the applicant’s submissions unhelpful in revealing jurisdictional error, if not meaningless.

  6. When given the opportunity to address the Minister’s submissions the applicant, essentially, made two complaints.

  7. One, the delegate and the Tribunal did not believe him even though he told the truth.

  8. To the extent that the applicant complained about the delegate’s decision, this Court, in the circumstances, has no jurisdiction to review that decision (s.476 of the Act).

  9. On the evidence before the Court, the Tribunal did give careful consideration to the applicant’s claims to fear harm.  As set out above it made comprehensive findings adverse to the applicant’s credit.  The Tribunal identified many inconsistencies in the applicant’s claims and as some of those arose from country information before it.

  10. The Tribunal’s adverse credibility finding and the findings that informed it were all reasonably open to it on what was before it.  The Tribunal gave a logical and cogent reasons for its adverse credibility findings which were probative of the evidence before it (see further below).

  11. Contrary to the applicant’s assertion before the Court, the Tribunal was not obliged to believe what he said, even in circumstances where he now asserts he was telling the truth (Randhawa v Minister for Immigration, Local Government & Ethnic Affairs [1994] FCA 1253).

  12. Two, the applicant repeated a claim raised in his written submissions, that the Tribunal was in error in finding that only high ranking officials of the BNP were in danger of harm in Bangladesh. As set out below, this was a finding made by the delegate and not the Tribunal.

  13. In all, none of the applicant’s oral complaints before the Court raise a legally arguable case for the relief the applicant seeks.

Consideration: of the Originating Application

  1. Ground one of the originating application asserts that the Tribunal erred in dismissing the application. This is said to be because it did not find that the applicant was a victim of persecution for reason of his political beliefs.

  2. In the circumstances this is a mere expression of disagreement with the conclusion reached by the Tribunal it does not rise above a request for this Court to engage in impermissible merits review.  The ground does not raise any arguable case for the relief sought.

  3. Ground two asserts, variously, that the Tribunal erred when it failed to find that the delegate denied the applicant procedural fairness when it found that the applicant was not a credible witness and when it refused his application.

  4. Again this ground lacks requisite merit.  Nor do the written submissions improve the efficacy of the assertions in the ground.

  5. The Tribunal’s statutory task was not necessarily to find fault with the delegate’s decision.  Rather it was required to conduct a review “de novo”, afresh, of the merits of the applicant’s claims to protection (Shi v Migration Agents Registration Authority [2008] HCA 31 and Minister for Immigration and Multicultural Affairs v Wang [2003] HCA 11).

  6. As set out above, this Court has no jurisdiction in the circumstances of this case to review the delegate’s decision.  To the extent that the ground asserts errors in the delegate’s decision this also lacks requisite merit.

  7. The complaint about the Tribunal’s adverse credibility findings is, in the circumstances, no more than an expression of grievance with those findings.  The Tribunal’s conclusion in this regard and the findings on which it was based were reasonably open to it on what was before it, and for which the Tribunal gave cogent and intelligible reasons. (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1, Kopalapillai v Minister for Immigration and Multicultural Affairs [1998] FCA 1126; CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146.

  8. Grounds three, four and five, in essence, repeat the assertions made in the first two grounds and lack merit for the same reasons.

  9. Further, the fact that the applicant provided documents to the Tribunal does not mean, simply because of that reason, that the Tribunal should have accepted the credibility of his claims, as the applicant now appears to assert.

  10. The applicant does not identify what documents he presented which compelled the Tribunal to find in his favour. In any event, on the evidence before the Court the Tribunal set out, at some length, consideration of the documents which he presented ([39]–[45] at CB 226–CB 227). The Tribunal gave cogent reasons for the findings it made in relation to each of those documents.  Ultimately the assessment of such evidence, and the weight to be accorded to it is a matter for the Tribunal, acting reasonably.

  11. None of the grounds of the application raise any arguable case or have such merit so as to meaningfully argue for the relief that the applicant seeks (see further below in relation to the additional grounds of what the applicant has described as the amended application). 

The Written Submissions

  1. Rule 44.13(1) of the Federal Circuit Court Rules 2001 (Cth) (“the rules”) provides that at a hearing pursuant to Part 44 of the rules, the applicant is confined to the grounds of the application. However, given that the applicant was legally unrepresented, I did consider whether there was anything in the applicant’s written submissions to warrant the use of rule 1.06 and dispense with rule 44.13 in the interests of justice. For the reasons that follow there is nothing in the written submission to warrant such a course of action.

  2. Page 1 to page 2.5 of the written submissions appears to address the grounds as originally pleaded.  They do not assist the applicant for the reasons set out above.

  3. What follows from page 2.5 to page 3 contains a number of assertions that either do not appear to relate to the grounds, but are nonetheless equally lacking in merit or could relate to the grounds but do not assist in raising an arguable case for the relief the applicant seeks.

  4. One, the applicant claims that there is “no room for doubt” that because of his claimed fear he met, in effect, the definition of refugee as it appears in the relevant UN Convention.

  5. As set out above, the Tribunal considered all of the applicant’s claims to fear harm.  It found for cogent reasons given, and probative of what was before it, that the applicant did not satisfy either of the relevant criteria for the grant of the visa. There is no apparent legal error in the Tribunal’s analysis. This submission therefore is no more than a request for impermissible merits review.

  6. Two, the submissions assert that the applicant is relying on the transcript of the Tribunal hearing to argue that the Tribunal did not follow “… properly procedure properly…”, and did not ask questions relevant to the UN Convention.

  7. First, despite opportunity the applicant has not put any transcript of the Tribunal hearing into evidence. In any event, despite making this assertion the submissions make no satisfactory attempt to explain it.

  8. Second, as set out above, and contrary to the applicant’s submissions, the Tribunal’s procedural fairness obligations were prescribed by statute and excluded common law procedural fairness in relation to the matters dealt within Div 4 of Part 7 of the Act (Saeed v Minister for Immigration and Citizenship [2010] HCA 23). The applicant has not attempted, let alone satisfactorily, explained what statutory obligation the Tribunal is said to have breached.

  9. Third, on the evidence that is before the Court,  that is the Tribunal’s relevant references in its decision record, the Tribunal did ask the applicant questions about his protection claims at the hearing (see [21], [23], [25], [27], [29] and [34]). Nor has the applicant identified what questions were asked that were not relevant to the Tribunal’s task to review the delegate’s decision.

  10. Fourth, the Tribunal’s relevant statutory obligation was to invite the applicant to a hearing pursuant to s.425 of the Act and to give him a meaningful opportunity to give evidence and make arguments in relation to the issues in the review. (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 and Mazhar v Minister for Immigration & Multicultural Affairs [2000] FCA 1759). On the evidence before the Court the Tribunal complied with this obligation.

  11. Three, the submissions state that the Tribunal’s “…decision was influenced by sufficient doubts” (page 2.7). What follows is an assortment of statements that, it must be said, when read as a whole fail to express any meaningful assertion of jurisdictional error with relevance to the evidence before the Court.

  12. The Tribunal’s decision was not “influenced” by doubt.  In fact the Tribunal made clear findings of fact absent doubt for which it gave cogent reasons probative of the evidence before it.  The submissions appear to confuse the Tribunal’s appropriate expression of having raised its concerns about his claims and evidence with the applicant at the hearing with subsequent findings of fact which ultimately arose from what had occurred at the hearing.  These were findings of fact which were expressed in clear and unequivocal terms.

  13. Four, the submissions appear to take issue with the Tribunal’s references to country information (page 2.8) with the reference to “…generalized DFAT reports”.

  14. The Tribunal did make various references to country information.  For example at [22] (CB 223) the Tribunal noted that certain evidence given by the applicant concerning his BNP related claims, which the Tribunal discussed with the applicant at the hearing ([20]–[21] at CB 223) was not consistent with country information before it.

  15. This complaint also does not have requisite merit.  The choice of, and reliance on, country information is for the Tribunal to determine acting reasonably (NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10). The Tribunal explained in clear terms why the applicant’s evidence was not consistent with this information. Again in the circumstances this is no more than another expression of grievance with the Tribunal’s findings of fact.

  16. Five, the submissions assert that the Tribunal did not conduct an independent review, but conducted it “…with a preoccupied attitude”.

  17. If this is an assertion of bias on the part of the Tribunal then given the seriousness of any such allegation it must be distinctly made and clearly proven (Minister for Immigration v Jia Legeng [2001] HCA 17 “Jia Legeng”). The test for bias is well established (Jia Legeng, VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872, Re Refugee Review Tribunal; Ex parte H [2001] HCA 28).

  18. There is nothing in the evidence before the Court to indicate, let alone make out, that the Tribunal did not bring an open mind to the proceedings, or that it merely followed the delegate’s analysis and findings. The mere fact that both the delegate and the Tribunal found adversely to the applicant’s credit does not of itself indicate bias on the part of the Tribunal.

  19. Six, at page 3 the applicant’s submissions again refer to authority generally relevant to common law procedural fairness, and not relevant to the current circumstances.

  20. For example, the submissions assert that the Tribunal failed to put inconsistencies between country information and the applicant’s claims to the applicant in writing (with reference to NAZY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 744 and Minister for Immigration & Multicultural Affairs v Al Shamry (2001) 110 FCR 27). The submissions then go on to also refer to s.424A of the Act.

  21. In the current circumstances, as set out above, the Tribunal’s procedural fairness obligations were set out in Div 4 of Part 7 of the Act. Section 424A of the Act required the Tribunal to give the applicant the opportunity to comment on, or respond to, information that would be the reason or a part of the reason for affirming the delegate’s decision.

  22. However as the High Court made, with respect, clear in SZBYRv Minister for Immigration and Citizenship [2007] HCA 26 at [18] inconsistencies, gaps or defects in an applicant’s claims or evidence is not information for the purposes of s.424A of the Act.

  23. In all, none of these matters raised in the written submissions reveal any argument of merit so as to indicate an arguable case for the relief sought by the applicant.

The Grounds of the Amended Application

  1. By an order made by a Registrar of the Court the applicant was given leave to file any amended application. The applicant’s written submissions at page 4 appear to raise further grounds.  It is appropriate to consider these as being in addition to the set of grounds in the originating application.

  2. Ground 1 asserts that the Tribunal erred in finding that the “…applicant’s claim is highly inconsistent” when it found that only high profile BNP activists would have been attacked by the AL.

  3. The particulars assert that there was no evidence to support the Tribunal’s finding, the Tribunal did not have regard to the applicant’s evidence that he moved around Bangladesh (“he moved from place to place to avoid detection”), and that it failed to have regard to what was in the applicant’s “primary application” relating to the applicant’s residential addresses. Finally, the particulars assert that the Tribunal’s finding was unreasonable in the Wednesbury sense (Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1).

  4. The Tribunal did not make any such finding.  The applicant was unable to point to where the Tribunal made any such finding and nor on any plain reading of the Tribunal’s decision record can any such assertion be said to have any basis.  This alone is sufficient to find that there is no arguable case raised by this ground.

  5. What is revealed by the evidence before the Court is that this finding was made by the delegate (see at CB 164.4–CB 164.5).  As set out above this Court has no jurisdiction to review the delegate’s decision.

  6. What was ultimately put before the Tribunal was as follows. The applicant claimed in a statutory declaration (CB 61–CB 63) which accompanied his application for the visa, that he had been threatened, in or around, 2009 by AL members because he was an active BNP member.  He feared for his life.  He fled from his home village and went to Dhaka.

  7. In submissions given to the Tribunal before the hearing (CB 194– CB 211) the applicant’s then representative recounted these events and stated that the applicant: “…was worried for his safety and travelled to reside in Dhaka” (CB 195.5).

  8. As the Minister submits there is nothing in the evidence before the Court to support the proposition that the applicant “moved from place to place”.

  9. The evidence is that he either “fled” or “travelled to reside” in Dhaka.  The applicant gave evidence to the Tribunal that he worked in Dhaka in a textile factory from early 2009 to June or July 2012 when he returned to his home village ([33] at CB 225).

  10. There is nothing in the evidence before the Court to support the applicant’s contention now in his submissions that when he left his home village in 2009 he moved “from place to place” until he left Bangladesh.  His evidence before the Tribunal was that up to June or July 2012 he lived and worked in Dhaka.  Noting also that it was the applicant’s claim that he again left his home village in 2012, moved again to Dhaka and after a year left for Australia (62.5).

  11. The Tribunal was not required to consider a claim (that he moved from place to place) that was not expressly made or did not clearly arise in the circumstances presented (NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263 and Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26).

  12. Nor can the Tribunal be said to have erred in failing to consider the residential addresses at which the applicant said he lived in Bangladesh as is asserted in the submissions.  In his protection visa application the applicant set out a list of where he had lived while in Bangladesh (see CB 76).  These show that the applicant lived in his home village or Dhaka from the date of his birth to when he left Bangladesh. There is nothing to show that the applicant “moved from place to place”. 

  13. In the circumstances, the assertion of Wednesbury unreasonableness on the part of the Tribunal cannot be made out in relation to a claim not made, and a claim, which on the evidence, is itself not otherwise sustainable. In all no arguable case arises from ground 1 of the amended application.

  14. Ground 2 asserts that the Tribunal erred in finding that the applicant was not persecuted and threatened by the AL.  The particular says this finding was unreasonable, again in the Wednesbury sense.

  15. In the circumstances, this assertion of error is simply another, it must be said, unparticularised and poor attempt to express grievance with the Tribunal’s conclusion.  No arguable case is indicated by this ground.

  16. Ground 3 asserts that the Tribunal erred in finding that the applicant was not a person to whom Australia owed protection obligations.  Again, in the circumstances, and for the reasons already set out above, this is another attempt to seek impermissible merits review.  No arguable case is indicated by this ground.

Conclusion

  1. None of the applicant’s grounds of the originating application, the amended application, what was put in written submissions or what the applicant put to the Court at the hearing, reveal any arguable case for the relief that the applicant seeks. It is therefore appropriate to dismiss the application pursuant to rule 44.12(1)(a) of the rules. I will make that order.

I certify that the preceding eighty-two (82) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date:  7 February 2020

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