CHW16 v Minister for Immigration
[2017] FCCA 180
•2 February 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CHW16 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 180 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.36, 424A, 424AA, 425 |
| BSO16 v Minister for Immigration & Anor [2016] FCCA 2848 CQG15 v Minister for Immigration [2016] FCAFC 146 Minister for Immigration v MZYTS (2013) 136 ALD 547; [2013] FCAFC 114 Re Minister for Immigration; Ex parte Durairajasingham (2000) 168 ALR 407; [2000] HCA 1 NAHI v Minister for Immigration [2004] FCAFC 10 SZVAP v Minister for Immigration (2015) 233 FCR 451; [2015] FCA 1089 SZVJL v Minister for Immigration & Anor [2015] FCCA 3174 |
| Applicant: | CHW16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2267 of 2016 |
| Judgment of: | Judge Driver |
| Hearing date: | 2 February 2017 |
| Delivered at: | Sydney |
| Delivered on: | 2 February 2017 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms J Strugnell of Minter Ellison |
INTERLOCUTORY ORDERS
Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application, as amended on 8 December 2016, is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,606 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2267 of 2016
| CHW16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 22 July 2016. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
Background relating to the applicant’s claims for protection and the decision of the Tribunal on them are set out in the Minister’s legal submissions filed on 25 January 2017.
Background
The applicant arrived in Australia on 26 April 2013 as an undocumented unlawful non-citizen.[1] On 1 September 2013, he applied to the Minister’s Department for the grant of a protection visa.[2]
[1] Court Book (CB) 1–19
[2] CB 21–95
The applicant claimed to fear harm in Bangladesh from members of the Awami League (AL). He claimed he had been, and would be, targeted by members of the AL and their supporters on account of his political opinion as a supporter of the Bangladesh National Party (BNP).
On 7 November 2014, the delegate refused to grant the applicant a protection visa.[3] The applicant sought review of the delegate's decision before the Tribunal by application dated 2 December 2014.[4]
[3] (CB 128–155)
[4] (CB 156–157)
On 23 February 2016, the applicant provided the Tribunal with pre-hearing submissions which included new claims.[5]
[5] (CB 172–197)
The applicant claimed that in January 2016, members of AL went to the applicant's home, spoke to his wife and demanded land and financial contributions from his family. He claims his wife was pushed to the ground and verbally harassed and that this incident occurred because they are BNP supporters. In February 2016, his brother was issued with an arrest warrant and subsequently arrested by police and later attended court. The applicant claimed that this case is politically motivated because his family is considered a BNP family. The applicant also claimed that he is at risk of harm in Bangladesh as a failed asylum seeker.
The applicant appeared at a hearing before the Tribunal on 26 April 2016. The Tribunal made its decision on 22 July 2016, affirming the decision not to grant the applicant a protection visa.
Tribunal decision
The Tribunal found that the applicant fabricated his material claims for the purpose of obtaining a protection visa.[6]
[6] CB 249: [71]
The Tribunal rejected the applicant's claims to have been a supporter or a perceived supporter of the BNP and all of the associated claims on the following bases:
a)aspects of his evidence were vague, lacking in detail, evasive, contradictory and unconvincing;[7]
b)the applicant's claims in relation to the level of his involvement with the BNP increased over time.[8] The Tribunal drew a distinction between the information provided by the applicant at the delegate interview and the Tribunal hearing, noting that his level of involvement increased and this raised credibility concerns;
c)the applicant initially gave evidence that he did not fill out a form to become a member of the BNP, whereas the Constitution of the BNP indicates that prospective members are required to complete a membership form to join the party.[9] When questioned about the form, the applicant changed his evidence to state that he was not a member, but was going to become a member if the BNP won the 2008 election;[10]
d)the applicant drew a picture of the Bangladeshi national flag when asked to draw a picture of the BNP flag.[11] Further, he was unable to provide information to demonstrate knowledge of BNP policies, despite claiming that he talked to members of the community about the BNP;[12]
e)the applicant gave inconsistent evidence about his involvement with the BNP. At one point, he claimed that his last involvement with the BNP was in November 2006. However, at another point he claimed that he was involved in the 2008 elections;[13] and
f)the applicant introduced new claims at hearing without an adequate explanation.[14]
[7] CB 240: [20], see also from CB 243: [37] and CB 247: [57] in relation to new claims
[8] CB 241: [24]–[26]
[9] CB 241: [26]
[10] CB 242: [31]
[11] CB 241–242: [27]–[28]
[12] CB 242: [29]–[30]
[13] CB 242: [32]
[14] CB 243: at [41]
The Tribunal did not accept the applicant's claims in relation to his brother because his evidence was incoherent and unconvincing.[15]
[15] CB 247–248: [61]–[65]
While the Tribunal accepted that the applicant's wife was involved in an argument in January 2016, the Tribunal did not accept that this argument was with AL supporters or that it was in any way politically motivated.[16] Similarly, the Tribunal accepted that the applicant's eldest brother was involved in a dispute about land ownership but it did not accept that this was politically motivated.[17]
[16] CB 250: at [78]
[17] CB 250: [79]
In relation to the applicant's claim to fear harm as a failed asylum seeker, the Tribunal noted a recent DFAT country information report indicated that most returnees, including asylum seekers, are not subject to adverse attention of the authorities unless they are high-profile individuals who have engaged in political activities outside Bangladesh. In light of the applicant's evidence that he has had no contact with the BNP since his arrival in Australia, and its finding that his political involvement claims were not credible, the Tribunal found that the applicant was not at risk as a failed asylum seeker.[18]
[18] CB 248–249: [68]–[69]
Having considered the applicant's claims individually and cumulatively, the Tribunal did not accept that the applicant would face harm for reason of his actual or imputed political opinion, or any other Convention reason.[19]
[19] CB 250: [85]
For these reasons, the Tribunal was not satisfied that the applicant met the refugee criterion under s.36(2)(a) of the Migration Act 1958 (Cth) (Migration Act).[20] For the same reasons, the Tribunal found that the applicant failed to satisfy the complementary protection criterion under s.36(2)(aa) of the Migration Act.[21]
[20] CB 250: [85]
[21] CB 251: [86]–[89]
The present proceedings
These proceedings began with a show cause application, filed on 22 August 2016. The applicant now relies upon an amended application filed on 8 December 2016. The grounds in that application are in template form:
1.In making decision, the Administrative Appeals Tribunal acted without jurisdiction or in excess of jurisdiction when it failed to take into account relevant considerations.
2.The tribunal failed to assess my harm on the basis of my claims.
3.The tribunal failed to assess the present situation in Bangladesh since I left.
4.The tribunal decision effected by the natural justice.
5.The tribunal made decision without any verification of my genuine documentary evidence and statement.
6.The tribunal decision is identical or very similar of the Departmental decision.
(errors in original)
The “particulars” provided in support of the application do not appear to relate to the six pleaded grounds. The particulars go to the merits of the Tribunal's decision. In summary, the particulars allege that:
[The Tribunal] unreasonably raised doubt over my involvement with the BNP and my life is in danger. The Department and the Tribunal misunderstood or misconstrued the facts. Migration Advisor for the applicant's motivation to BNP politics, Applicant's activities and role in the Party. 1 was an active and popular activist of BNP.
Applicant claims that there are many BNP leader worker and also low profile activists are persecuted like me.
When Bangladesh Political situation for the Bangladesh Nationalist Party (BNP) became worse, I decided to leave Bangladesh.
I argue that the Department and the Tribunal asked many irrelevant questions to test the credibility of my evidences to support my claims.
The Department and the Tribunal found inconsistency because the questions were asked in such a manner for which the applicant was not prepared. I was nervous and confused at the time of making Statutory Declaration and also at the time of interview with the Department and Lawyers who helped me to prepare the application.
The Tribunal raised the question about telling these things now, and raised the question why I did not mention earlier in the Statutory Declaration with the Original Application.
For the protection of my life I leave Bangladesh to Australia by boat with full life risk.
The tribunal member did not believe that and [Tribunal] raise question of credibility.
The Department has accepted that I was very confused. I, myself was not understanding what answer I was giving for what question. The Department told me first understand then give answer. I was totally nervous.
I believe I was denied procedural fairness when the hearing was conducted not freely and fairly.
I claim that the [Tribunal] made a jurisdictional error when it made decision in which the finding of reason is confused. I argue that the Tribunal did not apply Real Risk Chance Test used in the Refugee Convention under Australian Law
Particulars:
I claim that the Tribunal and the Department formed the opinion based on the limited information about the possible harm to me. The Tribunal ignored all other independent information about the attacks on me and the BNP activists. [The Tribunal] made unreasonable doubt about my documents related with my claims.
The Department and the Tribunal mad opinion with the closed mind. I claim that I left Bangladesh by boat, because of attack and torture by the supporters of Awami league and their police. I have no protection from the local authorities because my attempts to get help failed and also the monopoly of Awami league cadre and present administrative authorities in Bangladesh.
The [Tribunal] did not account any evidence of real chance of risk despite the facts of my situation in Bangladesh.
The Tribunal made a jurisdiction error when it did not consider my claims under the Complementary Protection Clauses.
Particulars:
I claim I would satisfy the criterion for protection under the Complementary protection arrangements as there are substantial grounds to believe there is a real risk that would suffer significant harm on return to Bangladesh. I claim that the Tribunal blindly follow the decision of the Departmental Delegate.
The Tribunal did not consider that how I came to Australia by boat with full of my life risk. The [Tribunal] ignored intentionally the relevant consideration related with complementary protection set out in s 36(2) (a). I am subjected to a significant harm as consequences of being tried for kill with possibility that sever sentence would be carried out on me.
The [Tribunal] ignored real test of persecution and made decision with closed mind.
(errors in original)
I have before me as evidence a short affidavit filed by the applicant with his original application and the court book, filed on 25 November 2016. Both the applicant and the Minister provided pre-hearing written submissions consistently with procedural orders made for the preparation of this case for hearing today.
The applicant was not able to make oral submissions bearing upon the grounds in the amended application, or expanding upon the written submissions. He invited the Court to conduct a complete review of his visa application. I explained to the applicant the limited jurisdiction of the Court, and the power of intervention which might be exercised by the Minister.
The applicant’s written submissions are in template form. They assert that the Tribunal fell into the same error identified in Muin v Refugee Review Tribunal ; Lie v Refugee Review Tribunal[22], in that the applicant was misled by the hearing invitation letter issued by the Tribunal. There is, however, no factual basis supporting that assertion. In particular, there is nothing to indicate the Tribunal misled the applicant as to the material to which it had had regard at the time the hearing invitation was issued. The hearing invitation was issued consistently with s.425 of the Migration Act because the Tribunal was unable to make a favourable decision on the papers. That, in itself, is unsurprising given the adverse credibility findings reached by the Minister’s delegate. The Tribunal reached similar adverse credibility conclusions.
[22] [2002] HCA 30; (2002) 190 ALR 601; (2002) 76 ALJR 966
In his amended application, the applicant asserts, in effect, that the Tribunal did not bring an independent mind to bear on the review. That assertion is, however, not supported by the Tribunal’s decision record. The amended application also asserts bias and a want of procedural fairness. Neither assertion is in any way supported by the available evidence. In other aspects, I agree with the Minister’s submissions concerning the grounds for review advanced by the applicant.
As I have already noted, the grounds of the applicant's amended application are template grounds.[23] The difficulty for applicants in relying on such grounds was considered by the Federal Court of Australia in SZLHM v Minister for Immigration.[24] The grounds and the particulars make general assertions about the Tribunal's decision, which are broadly directed at the Tribunal's assessment of the applicant's credibility, procedural fairness, bias, the choice and selection of country information, and the applicant's claims in the context of the complementary protection criterion. While the particulars of the amended application are expressed in language of legal claims, the substance of the complaints is largely concerned with the merits of the decision.
[23] see for example BSO16 v Minister for Immigration & Anor [2016] FCCA 2848
[24] [2008] FCA 754 at [29]–[42] per Flick J
Credibility
The applicant takes issue with the Tribunal's assessment of his credibility and states that the Tribunal failed to consider that he could be at risk of persecution as a low level member of the BNP. However, the Tribunal rejected the entirety of the applicant's claims to have been involved in politics.[25] Therefore, the assertion that the Tribunal failed to assess the risk of harm to the applicant as a low-level political supporter cannot be established.
[25] CB 249: [71]
The applicant also alleges that the Tribunal asked irrelevant questions to test his credibility. This allegation is not particularised. There is nothing on the face of the Tribunal decision record to support this allegation. At the directions hearing on 10 November 2016, the applicant was given an opportunity to file a transcript of the Tribunal hearing. No transcript of the Tribunal hearing has been provided to the Court, nor has the applicant provided any evidence to the Court to suggest that the Tribunal’s decision record is not accurate. In these circumstances, I accept as accurate the Tribunal’s summary of the oral evidence given by the applicant and exchanges it had with the applicant at the Tribunal hearing. The Court is entitled to accept the Tribunal’s decision record as accurately reflecting the matters to which it refers as taking place at the hearing in the absence of any evidence to the contrary[26].
[26] NAFF v Minister for Immigration (2004) 221 CLR 1; [2004] HCA 62
In relation to the claim that the Tribunal did not take the applicant's nervousness and confusion into account, the Tribunal cited the Guidelines on the Assessment of Credibility.[27] These guidelines were considered in the Tribunal's assessment of credibility and that the applicant's explanations about his demeanour did not overcome the significant inconsistencies the Tribunal identified in his account.
[27] CB 249: [70]
The Tribunal gave cogent reasons for not accepting the credibility of the applicant's claims and, in the absence of some defect in its reasoning, its findings in this regard were a matter for it par excellence.[28] There is nothing in the Tribunal's reasoning in relation to the applicant's credibility that would suggest any error in its approach.[29] Further, the Tribunal’s credibility findings could not be said to be illogical or irrational.[30]
[28] Re Minister for Immigration; Ex parte Durairajasingham (2000) 168 ALR 407; [2000] HCA 1 at [67]
[29] cf. SZVAP v Minister for Immigration (2015) 233 FCR 451; [2015] FCA 1089 at 455–7 [14]–[23]; CQG15 v Minister for Immigration [2016] FCAFC 146, [36]–[38]
[30] Minister for Immigration v SZMDS (2010) 240 CLR 611; [2010] HCA 16 at [135]
Procedural fairness
The applicant alleges that the hearing was not conducted freely and fairly. This allegation is not particularised. To the extent that this complaint relates to the Tribunal's questions about responses the applicant provided during his entry interview with the Minister’s Department on 16 May 2013,[31] the Tribunal put this information to the applicant for the purpose of testing the veracity of his claims and did so purportedly in compliance with its obligations under s.424AA of the Migration Act.
[31] CB 246: [54]
To the extent that this complaint may be construed to contend that the applicant was denied procedural fairness more generally, the Tribunal complied with its procedural fairness obligations set out in Part 7 of the Migration Act. By letter dated 23 February 2016,[32] the applicant was invited to a hearing before the Tribunal which he attended with the assistance of his representative and a Bengali interpreter on 26 April 2016.[33] It is apparent from the Tribunal's reasons that the applicant's credibility was discussed at the hearing.[34] The applicant's credibility was also a central issue addressed by the delegate.[35] The applicant's representative made post-hearing submissions including on the issue of credibility,[36] which were considered by the Tribunal.[37]In those circumstances, the applicant was plainly afforded sufficient opportunity to give evidence and present arguments about his credibility which was the determinative issue on review.[38]
[32] CB 201–202
[33] CB 211–214
[34] CB 242: [30], [32]; CB 243: [38]; CB 244: [41], [43], [45]; CB 245: [46]; CB 246: [52]–[54]
[35] CB 144–149
[36] CB 233–230
[37] CB 242: [31], [33]; CB 245: [47]; CB 246: [55]
[38] SZBEL v Minister for Immigration (2006) 228 CLR 152; [2006] HCA 63 at 165–6 [47]
The Tribunal sought to put information to the applicant orally at the hearing under s.424AA of the Migration Act.[39] In the absence of a transcript of the Tribunal proceedings to evidence non-compliance with s.424AA of the Migration Act by the Tribunal, I infer that the Tribunal complied with its obligations to the extent that they were enlivened.[40]
[39] CB 244: [43]; CB 246: [53], [54]
[40] SZNJQ v Minister for Immigration [2010] FCA 138 at [38]; SZLXE v Minister for Immigration [2008] FCA 1312 at [19]
In any event, the material put to the applicant was not “information” for the purposes of s.424A of the Migration Act (and therefore did not need to be put to him). This is because the Tribunal put “inconsistencies” to the applicant rather than “information”.[41] There is no error in the Tribunal adopting this cautious approach.[42]
[41] SZBYR v Minister for Immigration (2007) 235 ALR 609; [2007] HCA 26 at [17]–[18]
[42] SZGIY v Minister for Immigration [2008] FCAFC 68 at [30]
Bias
The applicant alleges that the Tribunal made a decision with a closed mind. However, this allegation is not particularised. The applicant raises the issue of bias in the context of complaints about the factual findings of the Tribunal in relation to his claim to fear harm for reasons of political opinion. For this reason, this complaint is directed at the merits of the Tribunal's findings rather than a complaint in relation to bias. In any event, there is no material before me to suggest that the Tribunal had prejudged the applicant's case, and, in particular, the applicant has not discharged the burden of clearly making or distinctly proving the allegation.[43] It is rare that such an allegation can be made out with reference to the decision record alone and no inference of bias or prejudgment should be drawn from the mere fact of adverse findings.[44] In the present case, where the applicant has not properly particularised any such allegation, and there is no evidence to support a finding of either actual or apprehended bias, this complaint is nothing more than an expression of the applicant's disagreement with the Tribunal's decision.[45]
[43] Minister for Immigration v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17
[44] SZVJL v Minister for Immigration & Anor [2015] FCCA 3174 at [38]
[45] SZRUI v Minister for Immigration [2013] FCAFC 80
Choice and selection of country information
The applicant alleges that the Tribunal formed its opinion on the basis of limited information and ignored all other relevant information. It is well established that the choice of country information and weight given thereto is a matter for the Tribunal.[46] While this principle has been qualified in certain circumstances,[47] there is no error in the Tribunal's consideration of the country information that it had regard to in this case (in particular given that it had reference to the most recent country information from DFAT dated 5 July 2016), nor was the Tribunal required to prefer the applicant's account of the situation in Bangladesh.
[46] see, eg, NAHI v Minister for Immigration [2004] FCAFC 10 at [11]; SZFRP v Minister for Immigration [2016] FCA 522 at [30]
[47] see Minister for Immigration v MZYTS (2013) 136 ALD 547; [2013] FCAFC 114
Complementary protection
The applicant alleges that the Tribunal failed to apply the complementary protection criterion. He states the Tribunal did not consider “how I came to Australia by boat with full of my life risk”. This appears to be a reference to the applicant's claim to fear harm on the basis of his status as a failed asylum seeker.
The Tribunal set out its findings on the complementary protection criterion.[48] The Tribunal stated that it had considered the applicant's claims under the complementary protection criterion and concluded that he would not be at risk of significant harm for any of the reasons claimed if he returns to Bangladesh.
[48] CB 351, at [86] to [89]
The Tribunal's assessment does not feature any express reference to the applicant's failed asylum seeker claim nor does it explicitly import the findings of fact undertaken in the refugee criteria assessment. However, the Tribunal's assessment at [68] concerning the treatment of failed asylum seekers coupled with the finding that the applicant would not be at harm for any of the reasons claimed, is sufficient to establish that the Tribunal considered this claim in the context of complementary protection. Factual findings made in relation to the refugee criterion can, as purely factual findings, be relied upon by the Tribunal in assessing the complementary protection criterion.[49]
[49] see, eg., SZQGI v Minister for Immigration [2012] FCA 343 at [10]–[11] per Rares J; SZTMQ v Minister for Immigration [2015] FCA 535 at [45]–[51] per McKerracher J
I conclude that the applicant has not established an arguable case of jurisdictional error by the Tribunal. I will order that, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules), the application, as amended on 8 December 2016, be dismissed.
In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale. The applicant claims impecuniosity, but as has been repeatedly stated, that is not a reason for the Court to refrain from making a costs order.
I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,606 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 3 February 2017
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