CDJ15 v Minister for Immigration
[2017] FCCA 2546
•17 August 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CDJ15 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 2546 |
| Catchwords: MIGRATION – Application for review of Administrative Appeals Tribunal decision – whether the Tribunal failed to consider an integer of the applicant’s claim – whether the Tribunal failed to consider evidence – whether the applicant was denied procedural fairness – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 65, 425,476 |
| Cases cited: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184 |
| Applicant: | CDJ15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2847 of 2015 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 17 August 2017 |
| Date of Last Submission: | 17 August 2017 |
| Delivered at: | Sydney |
| Delivered on: | 17 August 2017 |
REPRESENTATION
Applicant: | In person | |
| Solicitors for the Respondents: | Ms S Sangha of Mills Oakley Lawyers | |
ORDERS
The application made on 19 October 2015 and amended on 14 January 2016 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $5,200.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2847 of 2015
| CDJ15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex tempore; Revised from Transcript)
I have before me today an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 19 October 2015 and amended on 14 January 2016. The application seeks review of the decision of the Administrative Appeals Tribunal (“the Tribunal”) which, on 29 September 2015, affirmed the decision of the Minister’s delegate (“the delegate”) not to grant a protection (Class XA) visa to the applicant.
In evidence before the Court is a bundle of relevant documents, filed and tendered by the Minister (“the Court Book” – “CB”, “RE1”).
The background to the application is as follows. The applicant is a citizen of Bangladesh (CB 30). He arrived in Australia as an “unauthorised maritime arrival”. He applied for a protection visa on 5 June 2013 (CB 17 to CB 80). He was represented by a firm of lawyers who were also migration agents (CB 67 to CB 69).
The applicant’s claims to fear harm in Bangladesh were initially set out in a Statutory Declaration attached to his visa application (CB 71 to CB 76). He claimed to fear harm from Awami League (“AL”) members and supporters because he and his family had been longstanding supporters of the Bangladesh National Party (“BNP”). These were two opposing political parties in Bangladesh.
The applicant claimed that regularly during 2012 and 2013, members of the AL came to his shop and sought to extort money from him
([10] - [12] at CB 72). He claimed that in January 2013, he was threatened with a gun and told he would be beaten if he did not pay ([13] at CB 72). As a result of these threats, the applicant left Bangladesh.
The applicant attended an interview with the Minister’s delegate on 12 August 2014 (CB 83 to CB 85 and CB 93.9). The delegate refused to grant the visa to the applicant on the basis of an adverse credibility finding (see CB 98.8).
In the delegate’s decision record, the delegate stated as follows (CB 98.8):
“The applicant’s failure to provide plausible details of the incidents which form the basis of his core claims of protection and his ambiguous responses did not satisfy me that his claims are credible. I believe that the applicant has fabricated significant parts of his material claims with the sole purpose of enhancing his claims for protection.”
Given that conclusion, the delegate refused the grant of the protection visa to the applicant (CB 91 to CB 104).
On 2 September 2014, the applicant applied to the Tribunal for review of the delegate’s decision (CB 105 to CB 110). With that application, he provided a number of documents to the Tribunal in support of his claims (CB 111 to CB 125). The applicant attended a hearing before the Tribunal on 18 September 2015 (CB 132 to CB 135).
The Minister’s written submissions filed in these proceedings on 8 August 2017 provide a summary of the Tribunal’s analysis and findings. I have had regard to those submissions and I am satisfied that, given what is set out in the Court Book, it is a fair summary of the Tribunal’s decision record.
For the purpose of delivering this judgment today, I adopt what has been set out by the Minister at [6] to [10] of those written submissions:
“[6] On 29 September 2015, the Tribunal affirmed the delegate's decision (CB 140-150).
[7] The Tribunal had concerns with the applicant's credibility and found that his oral evidence about his claimed support for the BNP to be ‘vague and confused and limited’ and inconsistent with the documents he provided in support of his claims. On the basis of these concerns, the Tribunal concluded that the applicant was not a witness of truth and it rejected the entirety of his claims for protection (CB 147, [13], [27]-[39]).
[8] The Tribunal's adverse credibility findings were open to the Tribunal on the evidence before it. For instance, the Tribunal found that the applicant had provided inconsistent evidence in relation to whether his family sold land in order to pay for his travel to Australia (CB 144, [14]-[15]). The Tribunal also found that the applicant's claims were undermined by his lack of knowledge of the BNP, particularly given that he claimed his family supported the party and he [had] been interested in the party since he was young (CB 145, [16]-[18]).
[9] In addition, the Tribunal was concerned that the various supporting documents that the applicant had provided to it from Bangladesh were all in English and signed by people the applicant had not had contact with (CB 146, [19]-[22]). It also found that two of these documents indicated that he was a member of the BNP, which was inconsistent with his oral evidence (CB 146, [23]-[25]). On the basis of these concerns, the Tribunal was not satisfied that the authors of these documents knew the applicant or had any personal knowledge of his situation. Accordingly, it afforded the documents ‘little weight’ (CB 147, [26]). The weight to be given to these documents was a matter solely for the Tribunal to determine.
[10] The Tribunal concluded the applicant did not meet the criterion set out in s 36(2)(a) of the Act (CB 148, [33]). Given its findings, the Tribunal was also not satisfied that there were substantial grounds for believing that, as a foreseeable and necessary consequence of the applicant being removed from Australia to Bangladesh, there was a real risk that the applicant would suffer serious harm (CB 148, [38]). The Tribunal concluded that the applicant did not satisfy s 36(2)(aa) (CB 148, [39]).”
[Footnotes omitted.]
It is clear that the basis of the Tribunal’s decision was its comprehensive rejection of the applicant’s credibility. The Tribunal stated at [13] (at CB 144) of its decision record as follows:
“During the hearing the Tribunal discussed with the applicant his background, education, family composition, employment and political activity in Bangladesh, as well as the reasons he left Bangladesh and his fears of returning. While the applicant gave generally consistent oral evidence to the information contained in his statutory declaration, the Tribunal raised a number of concerns it had with the applicant’s oral evidence and his credibility and the reliability of the documents he had provided in support of his application. The Tribunal finds the applicant is not a witness of truth and it is not satisfied the applicant has told the truth in relation to critical aspects of his claims...”
At [14] (at CB 144 to CB 145) to [26] (at CB 147) of its decision record, the Tribunal gave detailed reasons for why it came to the above conclusion. The Tribunal rejected the applicant’s factual account of claimed events, and at [29] (at CB 147) of its decision record, it stated:
“The Tribunal does not accept the applicant was of adverse interest to the Awami League or its members or supporters at the time he left Bangladesh. The Tribunal does not accept the applicant was or is of adverse interest to anyone in Bangladesh.”
It must be said that that conclusion essentially mirrors the delegate’s comprehensive finding that the applicant was not telling the truth. Following the delegate’s decision, the applicant should have been on notice that his credibility, and the truth of his claims, was at issue.
At the hearing today, the applicant appeared in person. He was assisted by an interpreter in the Bengali language. The Minister was represented by a solicitor.
There are three grounds of the amended application before the Court. They are in the following terms and have been renumbered for convenience:
“[1] The Refugee Review Tribunal made a jurisdictional error when it failed to consider each integer of his claim and or failed to take into account the whole of the oral and written evidence in determining whether he feared persecution claimed amounted to persecution and serious harm within the meaning of s 91R of the Migration Act.
Particular: the applicant gave the evidence why he is targated by the Awami League Party supporters. The AAT failed to account this matter and mistook the facts.
The applicant claims that the Tribunal failed to consider more recent information with regards to the attacks on the BNP supporters by the supporters of the Awami League Party.
The applicant claims that not considering the recent information about the atrocities committed by the Awami League on the BNP supporters is an error or a path leading to error, error is itself is failure to Perform the statutory task imposed on the Tribunal by the Migration Act.
[2] The applicant claims that the Tribunal discarded all the considerations and precautions without giving any solid evidence of any fabricated documents submitted by the Tribunal at the time of Delegate interview or the Tribunal hearing. The applicant claims he was denied natural justice and procedural fairness when the Tribunal did not accept any written or oral evidence. It made decision with closed mind.
Particular: In the decision the AAT found that there were some discrepancies and inconsistency between he gave at the Tribunal hearing and his written claims and the statements he made at the protection interview at Immigration Detention Centre, which was included in the Departmental file. Applicant claims that the Tribunal misunderstood or mistook the facts. At the time of hearing the applicant was nervious and could not understand what the Tribunal is asking and what the Bangali Interpreter is teliing to the Member. The applicant found at many places during the hearing the Interpreter did not convey his words in English language to the Tribunal Member. In the beginning of interview the applicant wanted to tell that extortion is very common in Bangladesh. For survival and continuity of his business he was paying regularly money to the memebers of Awami League. When his shop was destroyed by the gang of Awami League supporters he fled from there to save his lie.
The Tribunal intentionally asked the question in such a manner the applicant was confused about the questions and was unable to answer the questions.
The applicant claims he was denied procedural fairness when the hearing was not conducted in a judicial manner and judicial hearing environment.
Applicant claims that he had no ability to express his evidence orally .He was always confused about what he is saying and what he understood the questions asked by the Tribunal.
[3] The Refugee Review Tribunal made a jurisdictional error when it failed to real test of persecution and harm according to the Migration Act. The Tribunal failed to apply the correct test in relation to the complementary Protection Provision contained in section 36(2)(aa) of the Migration Act 1958. The Tribunal made a jurisdictional error when it did not follow Rules of Real Risk Test of persecution and harm.
Particulars:
The Tribunal raised several irrelevant issues to discredit the facts. Applicant told the facts based on truth. He said that he has genuine fear from the supporters of Awami League. If he is compelled to go back he will be killed by the Awami League supporters. He said that he has no reasonable protection from the local authorities. He claims that the that there is no reasonable protection from the Bangladesh Government. The police is bribed and influenced by the money. The applicant claims that he left Bangladesh for the fear of his life..The Tribunal did not account that his shop was ransacked. The Tribunal discared all the written documents forwarded to the Delegate and the Tribunal. The applicant is in Australia. He requested his brother to provide evidence of possibility of danger to the applicant’s life. from the Awami League party workers. The applicant claims The Tribunal ignored the relevant consideration related with complementary Protection set out in s 36(2)(aa). The harm or the mistreatment feared by the applicant on return is for reason of one or more of five grounds of recognized in the Refugee Convention. Applicant’s fear of harm is well-founded and that there is a real chance that he will suffer persecution of he returned to Bangladesh.”
[Errors in the original.]
The applicant confirmed that these were the grounds that he wanted the Court to consider. The applicant also told the Court that the grounds had been drafted by his lawyer, after the lawyer had asked him questions, and that he could not assist the Court in explaining the grounds.
It was clear that the applicant, with respect, had no understanding of the nature of the proceedings that he has instituted before this Court. I sought to explain to the applicant, to the extent possible, the difference between the powers and role of the Tribunal and the powers and role of the Court.
The applicant’s lack of relevant understanding was demonstrated when he told the Court that he wanted more time to bring documents relating to the sale of land, or relating to his family’s land situation, in Bangladesh. To the extent that that was some attempt by the applicant to seek an adjournment of the hearing today, I refused that request. It appears that the applicant’s reference to these documents relates to a specific matter before the Tribunal. The Tribunal found inconsistent evidence was given by the applicant to the delegate, and then to the Tribunal, about the sale of his parent’s land ([14] at CB 144 to CB 145).
The applicant was given the opportunity to explain this inconsistency to the Tribunal (see [15] at CB 145). The Tribunal did not accept that the applicant’s response explained the inconsistency between his oral evidence to the Tribunal, and the information he provided during the interview with the delegate ([15] at CB 145).
It is important to note that the documents relating to the sale of the applicant’s parent’s land were not before the Tribunal. On the evidence before the Court, I am satisfied that the applicant has had the opportunity to provide such documents to the Tribunal, particularly once the issue was raised with him by the Tribunal at the hearing.
In any event, I am satisfied the Tribunal acted in a procedurally fair manner in raising the issue with the applicant at the hearing, and giving him the opportunity to respond. As I said to the applicant, even if he were somehow able to produce some documents now, the Court cannot intervene to change the findings of fact made by the Tribunal. These were findings of fact which were reasonably open to the Tribunal to make on the evidence that had been put before it.
The applicant also submitted today that before the Tribunal, he did not understand the gravity of the matters that were being discussed, in particular, when he was asked questions about his involvement and knowledge of the BNP.
Such a submission cannot assist the applicant today. It was the applicant’s claim before the delegate, and importantly before the Tribunal, that he and his family had been longstanding supporters of the BNP. Indeed, that was the very basis upon which the applicant claimed to fear harm in Bangladesh. In that circumstance, it was entirely appropriate of the Tribunal to test and question the applicant about his claimed involvement, history and knowledge of the BNP. In that light, the applicant’s submission today, that he did not realise the gravity of what was being discussed, cannot assist the applicant as having any basis for asserting legal error on the part of the Tribunal.
Turning now to the grounds of the amended application. There appear to be two related complaints in ground one. First, that the Tribunal failed to consider an integer of the applicant’s claims to fear harm. Second, that the Tribunal failed to take into account the whole of the applicant’s oral and written evidence before it, in determining whether the applicant’s circumstances met the definition of “persecution” under the Act. The particulars to the ground seek to explain that the Tribunal failed to take into account the applicant’s evidence in relation to why he was targeted by the AL. Further, that it failed to take into account more recent country information concerning attacks by AL supporters on BNP supporters.
It must be said that the applicant’s lawyers, who he said drafted the ground for him, failed to understand a very important distinction. That is, the distinction between the Tribunal’s failure to consider a claim made by an applicant, or a part of a claim, or a substantial, clearly articulated argument relying on established facts, on the one hand, and the Tribunal’s rejection of that claim or argument, on the other hand (see Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184, Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244, NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 and Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389).
On the evidence that is before the Court, the Tribunal did consider all of the applicant’s claims to fear harm. As mentioned earlier, the Tribunal rejected the applicant’s claim that he was a BNP supporter and rejected that he had been attacked by the AL.
The Tribunal’s conclusion in this regard, and the many findings that informed that conclusion, were all reasonably open to the Tribunal to make on what was before it. The Tribunal gave cogent reasons arising from its concerns with the applicant’s credibility, which arose from the material before it. The Tribunal’s adverse finding as to the applicant’s credibility was reasonably explained and was probative of the material before it.
As to the second complaint in ground one relating to country information, in light of the Tribunal’s conclusion that the applicant was not a BNP supporter, there was no obligation on the Tribunal to have regard to any country information about attacks by the AL on BNP supporters.
However, and as the Minister in my view correctly submits, the Tribunal did have regard to a relatively recent Department of Foreign Affairs and Trade report about political violence in Bangladesh. In light of the applicant’s complaint in ground one, I note that there was nothing before the Tribunal, nor had the applicant put anything to it, to suggest the report was out of date. In all, ground one asks the Court to engage in impermissible merits review. It does not reveal jurisdictional error in the Tribunal’s decision.
Ground two asserts, variously, that the Tribunal fell into legal error concerning documents he had provided in support of his claims. First, that the Tribunal did not have any “solid evidence” that his documents, which were headed “BNP”, were fabricated documents. The difficulty for the applicant today is that whoever drafted the grounds of the amended application, again, has either demonstrated a lack of understanding of the Tribunal’s relevant finding, or simply chose to ignore it.
The Tribunal did not make any finding that the documents were fabricated. Rather, the Tribunal gave cogent reasons as to why it gave little weight to those documents. The reasons for this in particular, derived from the applicant’s own oral evidence to the Tribunal, and the nature of what was written in some of the documents.
The Tribunal’s reasoning for giving little weight to the documents is particularly clear at [24] (at CB 146) to [26] (at CB 147) of the Tribunal’s decision record. Contrary to the assertion in the applicant’s ground, the Tribunal is not required to provide evidence to disprove an applicant’s claims. The relevant task for the Tribunal, as mandated by the Act, is to evaluate the evidence before it and to consider whether it can reach the requisite level of satisfaction that the applicant meets the criteria for the grant of the visa. As is made clear in s.65 of the Act, if the Tribunal cannot reach this requisite level of satisfaction, the visa must be refused (SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 225 at [15]-[16], NAST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 208 at [4]-[5], Minister for Immigration & Multicultural & Indigenous Affairs v VSAFof 2003 [2005] FCAFC 73 and Plaintiff S297/2013 v Minister for Immigration and Border Protection [2014] HCA 24; (2014) 255 CLR 179).
Further, it must be noted that the evaluation of documents and the weight to be accorded to documents is for the Tribunal to determine and to reasonably explain within the proper exercise of its jurisdiction (Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at [24], Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510 at [197] and Minister for Immigration and Citizenship v SZJSS & Ors[2010] HCA 48; (2010) 243 CLR 164 at [32] – [33]). Further, as the Minister again correctly submits, it is not a legal error for the Tribunal to reject corroborative evidence on the basis of its evaluation of an applicant’s credit (Minister for Immigration and Citizenship v SZMOK [2009] FCAFC 83; (2009) 247 FCR 404 at [59]).
Second, ground two also complains that the Tribunal made its decision with a “closed mind”. If this is an attempt to assert bias on the part of the Tribunal member, then given the seriousness of such a charge, any such claim must be distinctly made and clearly proven (Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 at [69]). Whoever drafted the applicant’s ground has not taken into account that a claim that an administrative
decision-maker (such as this Tribunal member) was biased, is an attack on the very integrity of that decision-maker. It is not appropriate for an applicant to complain that a Tribunal member was biased simply on the basis that the Tribunal member disbelieved the applicant’s claims, especially in circumstances where the Tribunal gave cogent reasons for its state of disbelief.
Further, it is rare that bias can be made out simply on the basis of the Tribunal’s own decision record, as the applicant’s ground appears to attempt in this case (see SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668, SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR 749 at [44] and Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51; (2010) 115 ALD 303 at [18]).
Third, the applicant’s ground complains that the Tribunal misunderstood his claims at the hearing because the interpreter did not “appropriately” convey his words in English to the Tribunal member.
On the evidence that is before the Court, the Tribunal invited the applicant to a hearing pursuant to s.425 of the Act. As the Minister correctly submits, to establish that he was denied a fair hearing because of a failure of, or a lack in interpretation, the applicant would need to establish that the errors in interpretation prevented him from giving evidence to the Tribunal or that the errors in interpretation were material, that is, were relevant to the Tribunal’s adverse findings and conclusions (Appellant P119/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 230 and W284 v Minister for Immigration & Multicultural Affairs [2001] FCA 1788).
Despite orders made by a Registrar of this Court on 26 November 2015 which provided the applicant the opportunity to file any evidence by way of affidavit, he has not done so.
On 26 November 2015 a Registrar of this Court made an order, by consent, in the following terms:
“The applicant must file and serve any affidavit containing additional evidence to be relied upon, including any transcript of a Tribunal hearing, on or before 21 January 2016.”
The applicant has not filed any transcript of the Tribunal hearing, either before or after that date. Therefore, the assertions in ground two are presented to the Court without any evidence to support them. On the only evidence that is available to the Court, that is, the Tribunal’s references as to what occurred in the hearing as set out in its decision record, this complaint cannot be made out.
Ground two also complains that the applicant was nervous at the hearing and could not understand what the Tribunal was asking, and that he was confused. Again, there is no evidence before the Court to indicate that the applicant was affected in this, or any other way, so that it could be said he was denied the opportunity of a fair hearing before the Tribunal. In the absence of any such evidence, and on the evidence that is before the Court, the applicant’s complaint cannot be made out. Ground two, therefore, also does not reveal jurisdictional error on the part of the Tribunal.
Ground three asserts that the Tribunal failed to apply the correct test in relation to the complementary protection criterion that applied to the grant of a protection visa (s.36(2)(aa) of the Act). However, the particulars to the ground do no more than merely restate the applicant’s claims to fear harm. In that light, therefore, the ground seeks impermissible merits review.
On the evidence that is before the Court, there is nothing to indicate that the Tribunal misunderstood or misapplied the relevant test relating to the complementary protection criterion in the Act. I note for the sake of completeness, that in setting out its findings in relation to complementary protection, the Tribunal was entitled to rely on factual findings that it had expressed earlier in its decision record (SZSGA v Minister for Immigration, Multicultural and Indigenous Affairs [2013] FCA 774 and SZSHK v Minister for Immigration and Border Protection [2013] FCAFC 125; (2013) 138 ALD 26). As noted above, the Tribunal rejected the entirety of the applicant’s claims and gave cogent reasons probative of the material before it for that rejection. Ground three, again, seeks impermissible merits review. It does not reveal jurisdictional error in the Tribunal’s decision.
None of the applicant’s grounds in the amended application reveal jurisdictional error in the Tribunal’s decision. Nor can I see on the evidence before the Court that the Tribunal otherwise fell into jurisdictional error. It is therefore appropriate to dismiss the application as amended. I will make that order.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Date: 20 October 2017
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Standing
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