CIU17 v Minister for Immigration

[2017] FCCA 3173

FEDERAL CIRCUIT COURT OF AUSTRALIA

CIU17 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 3173

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a protection visa – existence of section 438 certificate – no denial of procedural fairness to the applicant in conduct of the review – the documents the subject of the certificate were not relevant to the review – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 438, 476

Applicant: CIU17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1695 of 2017

Judgment of: Judge Street

Hearing date: 14 December 2017

Date of Last Submission: 14 December 2017

Delivered at: Sydney

Delivered on: 14 December 2017

REPRESENTATION

Counsel for the Applicant: Mr P Bodisco

Solicitors for the Applicant: Australian Business Underwriter

Counsel for the Respondents: Ms R Graycar

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. Grant leave to the applicant to rely upon the amended application filed on 5 December 2017.

2. The amended application is dismissed.

3. The applicant to pay the first respondent’s costs fixed in the amount of $8,515.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1695 of 2017

CIU17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of the decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 3 May 2017 affirming a decision of the delegate not to grant the applicant a protection visa.

2. The applicant was found to be a citizen of Bangladesh and his claims were assessed against that country. The applicant applied for a protection visa on 8 November 2013.  The delegate refused to grant the visa on 22 July 2014. A differently constituted Tribunal affirmed the decision on 24 December 2015. By order of this Court dated 23 August 2016, the earlier differently constituted Tribunal’s decision was set aside and the matter was sent back for further review by the current Tribunal.

The current Tribunal’s decision

1. The current Tribunal invited the applicant to attend a hearing on 27 April 2017 and the applicant appeared on that date to give evidence and present arguments, and was represented by his migration agent.  The applicant in summary claimed to fear harm by reason of his conversion from Islam to Christianity. The Tribunal, it its reasons, summarised the background to the application for the review and set out the relevant law. The Tribunal referred to the applicant’s claims and evidence and the country information. 

Consideration of the applicant’s claims

1. The Tribunal did not accept as plausible that no problems would have arisen for the applicant well before the family and other problems which he claimed commenced in 2011 to 2012, if he was attending church in Bangladesh for the time he claimed and as regularly as he claimed. The Tribunal did not believe it was plausible that no concern would be expressed to him by the Christian persons he allegedly met at the churches in Dhaka. 

2. The Tribunal was not satisfied the applicant was engaging in any Christian practices or discussing Christianity, as he had claimed. The Tribunal was not satisfied the applicant knows much if anything about Christianity as explained in the Tribunal’s reasons, and was not satisfied the applicant is a generally credible witness. The Tribunal was not satisfied the applicant attended more than the occasional Christmas celebration with Rinko from August 2008.

3. The Tribunal referred to the applicant travelling to England in July 2013 for a week or so, and that the applicant’s passport indicated his visa to the United Kingdom was a multiple entry visa issued on 5 February 2013 with effect until 5 August 2013. The Tribunal referred to discussing with the applicant the events after he returned from England, and found this constituted a very significant period in the applicant’s life.  The Tribunal found the applicant’s lack of recollection about this period was one reason that satisfied the Tribunal the applicant was not recalling evidence within his personal experience.

4. The Tribunal referred to the applicant’s claim he did not pay heed to various threats. The Tribunal did not accept this to be plausible. The Tribunal found that if the applicant’s claims were true, it is far more likely that he would have sought protection from the harm he now claims to fear in England. Further, the Tribunal made reference to the applicant’s claim of suffering serious harm two weeks after returning to Bangladesh from England, and the Tribunal did not believe it was plausible that he would not have sought protection in England if the harm he claimed to fear was true. 

5. The Tribunal found the applicant’s claimed conversion to Christianity is not genuine and is not true. The Tribunal did not accept that the applicant was threatened by his brother-in-law. The Tribunal referred to an alleged report, dated 11 October 2013, that the applicant had converted to Christianity. The Tribunal referred to the prevalence of document fraud in Bangladesh and rejected the news article and its contents as false.

6. The Tribunal was not satisfied the applicant is generally credible, or that his baptism was genuine. The Tribunal referred to the applicant not having claimed or enquired about protection in England and found it was not plausible the applicant would have returned to the harm he now claims he is subject to in Bangladesh if his material claims were true. The Tribunal referred to the applicant’s travel to his parent’s home and was not satisfied the applicant would have travelled through the market of his home village if his claims to be a Christian convert, or his claims to be known to have been baptised in Bangladesh were true.  The Tribunal did not accept the applicant was harmed in his home village either for the reason he claimed or for any reason at all. The Tribunal was not satisfied the applicant genuinely converted to Christianity in Bangladesh, or that his baptism in Bangladesh was known to anyone in Bangladesh. 

7. The Tribunal referred to the applicant’s delay in departing Bangladesh.  The Tribunal did not accept the applicant would have delayed his departure from Bangladesh if he feared he may suffer serious harm from mid to late July 2013, as he claimed. The Tribunal identified this was a further reason that satisfied the Tribunal the applicant’s claims to be a genuine Christian convert was false.  

8. The Tribunal referred to sending the applicant a s 424A letter in relation to a Facebook page that identified the applicant was still a Muslim. The Tribunal did not accept as plausible the applicant’s explanation that he may have neglected to change his Facebook page until the time of the Federal Circuit Court hearing if his claimed religious conversation was genuine. 

9. Taking into account the adverse findings about plausibility, the applicant’s limited knowledge of Christianity, and his efforts to ensure his practice of Christianity in Australia were low-profile, the Tribunal did not accept his material claims are true. The Tribunal did not accept the applicant attended church services or other Christian practices in Bangladesh regularly, as claimed. The Tribunal did not accept the applicant was a genuine Christian convert in Bangladesh or that his baptism in Bangladesh is known to family or anyone else in Bangladesh. The Tribunal was not satisfied the applicant is generally credible.

10. The Tribunal, in its reasons, further summarised findings in relation to the applicant and his claims in respect of Christianity and the Facebook page, but was not satisfied he was a genuine Christian convert in Bangladesh or that his baptism in Bangladesh would be known to anyone in Bangladesh, with the possible exception of a few persons who may have engaged with the false baptism in Bangladesh. 

11. The Tribunal made reference in paragraph 60 of its reasons to the file containing a s 438 certificate. That certificate was dated 7 September 2016 and identified certain folios as being the subject of application of s 438(1)(a) of the Act and that disclosure of the information would be contrary to public interest because the aforementioned folios contained information relating to internal working document and business affairs. The Tribunal in its reasons at paragraph 60 found that after considering the same, the Tribunal did not believe the certificate to be valid. The Tribunal proceeded that it is not satisfied that any information referred to therein and not already discussed was material to the applicant’s case. 

Assessment of Refugee Convention criteria

1. The Tribunal found the applicant’s very limited knowledge about Christianity, notwithstanding the length of time he claimed to have engaged in Christianity, is one of the reasons why the applicant’s claim to be a genuine convert is false. The Tribunal did not accept that there is a real chance that any person who engaged with a fraudulent baptism in Bangladesh would reveal the applicant’s involvement in that. The Tribunal was not satisfied the applicant has a real chance of suffering serious harm in Bangladesh for any of the reasons claimed.

2. The Tribunal was not satisfied the applicant was a genuine Christian convert, including in Australia. The Tribunal was not satisfied there was a real chance the applicant would suffer serious or significant harm in Bangladesh for reason for his Christian practices in Australia. The Tribunal found that it was not satisfied that anyone in Bangladesh would know about the applicant’s claimed practices in Australia. The Tribunal was not satisfied the applicant faces a real chance of suffering serious harm in Bangladesh by reason of his claimed practices in Australia.

3. The Tribunal made reference to a claim involving the applicant’s cousin and that she was raped by a particular person, Mr X. The Tribunal referred to the applicant remaining in his usual abode in Dhaka until two weeks prior to departing Bangladesh. The Tribunal did not believe it plausible that the applicant would continue to reside at the same address without taking any real steps to protect or otherwise hide himself if the claim about Mr X was true. It was in these circumstances the Tribunal did not accept the claim as plausible and rejected the evidence about Mr X as false. The Tribunal was not satisfied the applicant has a real chance of suffering serious harm in Bangladesh for any reason involving Mr X.

4. The Tribunal was not satisfied there is a real chance the applicant would suffer serious harm should he be returned to Bangladesh as a failed asylum seeker after having resided in Australia for almost four years. When considered cumulatively, the Tribunal did not accept the applicant has a well-founded fear of persecution for a Refugees Convention reason in Bangladesh. The Tribunal was not satisfied that there is any matter that would give rise to the applicant facing a real chance of being subject to serious harm in Bangladesh. The Tribunal found the applicant is not a person in respect of whom Australia has protection obligations under the Refugees Convention and found the applicant failed to meet the criteria under s 36(2)(a) of the Act. 

Assessment of Complementary Protection criteria

1. The Tribunal found that it was not satisfied there were substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Bangladesh, there is a real risk that he will suffer significant harm. It was in those circumstances the Tribunal found that the applicant failed to meet the criteria under s 36(2)(aa) of the Act and affirmed the decision under review. 

Before this Court

1. The ground in the amended application is as follows:

   1. The decision of the Second Respondent was affected by jurisdictional error, by failing to find that a purported s 438 certificate was invalid and that the consequent failure to put the material purportedly covered by the certificate to the Appellant for comment constituted a denial of procedural fairness.

   Particulars:

   By failing to disclose to the Applicant a Ministerial Certificate issued pursuant to section 438(1)(a) of the Migration Act as contained in the Departmental file, the Tribunal has denied the Applicant procedural fairness and/or failed to apply the reasoning of Beach J in the matter of MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081.

2. Mr Bodisco of counsel objected to the tender of the material the subject of the certificate. This Court regularly receives into evidence, if relevant, material that goes to whether or not there has been a substantial injustice or a denial of procedural fairness. The evidence sought to be adduced in respect of the certificate was relevant and admissible, it was for these reasons the Court admitted the documents the subject of the certificate into evidence.

3. The documents the subject of the certificate cannot be said to be relevant to the issues the subject of review. The documents were not credible, relevant and significant. On the face of the Tribunal’s reasons, the Tribunal did not have regard to or act upon the documents the subject of the certificate. The Tribunal did not have regard to or act upon the documents the subject of the certificate. On the face of the material before the Court, there was no denial of procedural fairness to the applicant in the conduct of the review by reason of the failure to disclose the certificate or the documents the subject of the certificate as the documents were not relevant to the issues the subject of the review.

4. Further, the Court is satisfied the applicant suffered no practical injustice by reason of the nondisclosure of the certificate or the documents the subject of the certificate. Accordingly, no jurisdictional error as alleged in ground 1 is made out.

5. Further, even if an alleged error had been made out, the documents the subject of the certificate could not possibly have given rise to any different outcome in the conduct of the review and relief would be withheld on discretionary grounds. 

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  29 January 2018