CLK16 v Minister for Immigration
[2017] FCCA 2582
•13 November 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CLK16 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 2582 |
| Catchwords: MIGRATION – application for a protection visa – Tribunal refused to grant visa on the basis that no weight should be given to the Applicant’s documentary evidence – Tribunal determined that no weight should be afforded without making [any] obvious inquiry about a critical fact – if necessary enquiries had been made the issues in contention are likely to have been clarified – Tribunal’s questions about the authenticity of the Applicant’s documents could equally apply to the Minister – relief granted. |
| Legislation: Migration Act 1958 (Cth), s. 36(2)(aa), 415, 420(1), (2) (a) – (b) |
| Cases cited: Abebe v Commonwealth (1999) 197 CLR 510 |
| Applicant: | CLK16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | CAG 61 of 2016 |
| Judgment of: | Judge Neville |
| Hearing date: | 20 March 2017 |
| Date of Last Submission: | 20 March 2017 |
| Delivered at: | Canberra |
| Delivered on: | 13 November 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr C Wilson |
| Solicitors for the Applicant: | Pennicott Weir Lawyers |
| Counsel for the Respondents: | Mr T Reilly |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
A writ of certiorari issue to remove the Tribunal’s decision record into this Court and that decision be quashed.
Pursuant to a writ of mandamus, the matter be remitted to the Tribunal and for the matter to be heard and determined according to law.
The First Respondent is to pay the Applicant’s costs as per Schedule 1 Part 3 of the Federal Circuit Court Rules 2001.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
CAG 61 of 2016
| CLK16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant in this matter is a 37 year old man from Bangladesh. He came to Australia in August 2009 as a student. In 2012, he applied for a skilled visa; this application was refused as was his application for review.
On 3rd March 2014 he applied for a protection visa. That application was denied, and it is from the decision of the Administrative Appeals Tribunal (“the Tribunal”) given on 1st August 2016 to refuse to overturn the Delegate’s decision (made on 30th September 2014)[1] that the Applicant now comes to this Court to seek review and relief.[2]
[1] The letter notifying the Applicant of the Delegate’s decision is dated 1st October 2014. It is at Court Book (hereafter “CB”) 214. The date on the reasons of the Delegate is 30th September 2014, which is at CB 243.
[2] The reasons of the Tribunal are at CB 328 – 343.
In summary, over the course of nine (9) separate grounds of review, the Applicant essentially says that various findings made by the Tribunal were not open to it on the evidence (or lack of it). Among other authorities, the Applicant relies upon the Full Court of the Federal Court of Australia’s decision in Minister for Immigration and Border Protection v MZYTS.[3]
[3] Minister for Immigration and Border Protection v MZYTS (2015) 230 FCR 431.
Equally briefly, in general terms the First Respondent (“the Minister”) says that all the grounds of review claimed by the Applicant amount to no more than “merits review” which is impermissible.[4] Accordingly, the Minister says that the Application should be dismissed, with costs.
[4] A classic statement of the limits of a court to engage in “merits review” in relation to a decision by an administrative body is by Brennan J in Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 36. His Honour’s judgment has been cited many times since, for example by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66].
Overview of Tribunal’s Decision – Slightly Annotated
For present purposes, I need only outline the following essential aspects of the Tribunal’s decision.[5]
[5] The Tribunal’s decision is located at CB 329 – 343.
The first part of the Tribunal’s reasons dealt with the Applicant’s contention that he was a member or supporter of the Bangladesh Nationalist Party (“BNP”). Relevantly the Tribunal found, indeed accepted that he was, whilst a student, a member of BNP (par.75). However the Tribunal went on to say that it did not accept that he played any active role in the BNP after he left college and obtained part time work in 2003 (see pars. 35 – 36 and 75).
The Tribunal questioned the Applicant about his activities with the BNP; the Tribunal recorded that the Applicant’s description was “in very general terms” (par. 25). Indeed the Tribunal questioned him further about details regarding the BNP; the Tribunal said that his response “was vague and ambiguous” (par. 28).
The Applicant was questioned about his interview with the Delegate in circumstances where he was not familiar with the BNP Constitution and he was unable to recall the name of the BNP candidate for his local constituency. The Applicant told the Tribunal that he was involved in campaigning for a neighbouring constituency, and that he was familiar with “all these things” but could not remember them at the time of the Delegate’s interview.
The Tribunal referred to a letter in support of the Applicant’s claims provided by Mr Habib dated 5th February 2014. Mr Habib was the president of the Bangladesh Nationalist Satrodal. The letter from Mr Habib certified that the Applicant held an official position with the BNP as specified in paragraph 30 of the reasons.
The letter from Mr Habib caused concern for the Delegate who raised with the Applicant that Mr Habib signed the letter at a time when, according to country information, he was in gaol on remand. When this was put to the Applicant at the Tribunal Hearing, the Applicant suggested that his brother in Bangladesh may have secured the signature from Mr Habib while in gaol.
The Tribunal raised questions about the letter from Mr Habib and its lack of certain detail (see par. 32).
At par. 33 of its reasons, the Tribunal again noted that Mr Habib was in gaol at the time of the date of the letter. Without detailed explanation the Tribunal stated: “the Applicant’s explanation for this anomaly is speculative and whilst it is not impossible that the author’s signature was secured whilst he was in gaol the Tribunal considers it implausible.” Why the Tribunal took this view is not explained. Simply as an observation, it might also beg the question that if the author of the letter was a person of some prominence / eminence would the Tribunal have been equally as dubious?
Because of its conclusion regarding the implausibility of the letter being signed by its author whilst in prison, with no other explanation given, the Tribunal concluded (at par. 34) that it would not give this letter any weight in relation to supporting the Applicant’s claims.
The next section of the Tribunal’s reasons dealt with a claim by the Applicant that he was falsely implicated in serious criminal charges in 2009. He claimed that he had to go into hiding so that he would not be killed because he was not able to disprove the charges. The Applicant claimed that his lawyer tried to prove his innocence but was unable to do so due to government influence. He said that his lawyer told him to leave the country and not return until the political situation had changed (par. 37).
The Applicant gave the Department documents “purporting to be First Information Reports (FIR)” in Bengali as well as the English translations. The Tribunal noted, and it might be recorded adversely to the Applicant, in a number of places that “these documents were all produced on uniform paper in terms of size, colour and apparent age. They all had similar elaborate headers” (see pars. 38 and 46).
I simply observe here that one might make the exact same comment in relation to all documents from the Department of Immigration and Border Protection. Presumably, the Department does not issue documents on different coloured paper with different font sizes and with different letterheads. If this be the case, one might not unreasonably ask why comment must be made on the exact same things by organisations from overseas. To do so might raise questions about the Tribunal’s transparency and / or cultural understanding in approaching matters before it, accepting later comments made in relation to country information and the risks of documentary fraud. The FIRs were dated 15 February and 20 April 2009. The disturbances referred to in these documents are stated to have occurred in two different localities and that warrants for arrest had issued. In the FIR dated 20 April 2009 the Applicant is referred to by name and is stated to be aged 35. He was named as the leader of the group and was said to have absconded. Later in its reasons the Tribunal noted that at the relevant time of the alleged incident the Applicant was in fact aged 30 (see pars 37 – 41).
The Tribunal questioned the Applicant about the origins of these FIRs. He said that the FIR dated 15 February 2009 involved police action against people who were involved during a “hartal” strike protest. The Tribunal said that it understood the Applicant’s evidence to say that these false claims against him were made by Awami League activists in his local area. The Applicant said that he was indirectly involved in the hartal because he had gone to support his BNP colleagues. He said that he had not been involved in any violence during the hartal and that he had not been arrested but later false charges were laid against him. He said that after the hatal he decided to hide at his sister’s house in Dahaka and thereafter he could not take part in “usual political activities” (par. 44). He said he hid at his sister’s home before he departed for Australia in August 2009 on a student visa.
The Tribunal put a series of questions to the Applicant in relation to the FIRs (e.g. the type of paper, the same headings and the accuracy of the information). In general terms, the Applicant said that his brother had obtained the documents from the Court, that his mistaken age in one of the documents was probably nothing more than a printing mistake and that he had generally been informed of detail in the FIRs by his brother. The Tribunal also put to him that in his interview with the Delegate he thought that the first FIR was lodged in March 2009 and the second in July / August 2009 (par. 49).
The Tribunal put to the Applicant that country information indicated that “there was a high level of document fraud in Bangladesh” and that “official documents could easily be obtained by the payment of money.” The Tribunal stated, almost as a blanket conclusion that “the problems identified in the FIRs might suggest that they are not genuine documents.” The Applicant responded that “the system in Bangladesh is slower and documents are provided by unskilled persons who make errors” (par. 50).
The Tribunal went on to ask the Applicant to explain why he had not been arrested by police if he had been charged with serious offences as set out in the FIRs in February and April 2009. Leaving aside how the Applicant could possibly know what the practice of police in Bangladesh was generally and more particularly what their practice and intention was in this particular case, the Applicant said that the police did sent a letter to his home but he did not know why they had not arrested him. The Tribunal then concluded without any evident particulars or reasons: “the Tribunal has considered the evidence of the Applicant at Hearing along with other evidence provided and does not accept that Awami League activists or any other persons lodged false cases against the Applicant in February and April 2009.”
At pars. 53 – 56 the Tribunal set out the reasons why it did not accept the evidence of the Applicant, thus: (a) the discrepancy in one of the FIRs regarding his age; (b) the fact that the Applicant could not remember everything regarding specific incidents and details regarding the documents he provided to the Tribunal; (c) the Applicant’s inability to explain why he was not arrested and; (d) in the light of country information on the prevalence and ease of obtaining false documents the Tribunal did not consider the documents provided to the Department supported the Applicant’s claim that he has had two false cases lodged against him and that a warrant of arrest issued.
By way of comment only at this stage, the inability of a witness to remember specific details is an extremely common occurrence in all Courts, but in this instance the Tribunal seems to have required, as a counsel of perfection, that the Applicant recall specific details in relation to events that were said to have taken place in 2009. Respectfully, it is a not uncommon occurrence that witnesses have difficulty remembering with clarity events that took place six months ago, let alone events that took place much earlier in time.
The next area of the Tribunal’s reasons were focussed on another area of “documentary concern” (my words). The Applicant provided the Tribunal with a letter from his lawyer in Dahaka, Mr Karim, dated 6 February 2014. The contents of the letter were set out in the Tribunal’s reasons at par. 57. A copy of the actual letter is at CB 39; relevantly the letter gives contact details of Mr Karim.
At pars 58 – 62 the Tribunal provided in effect a critique of the letter from Mr Karim. Among other things, the Tribunal states that the document is of “poor English quality”, it questions why a lawyer would send a document of this nature to a fellow Bangladeshi using such poor English if he was not competent in the language; the Tribunal questions why the Applicant’s lawyer would write such a letter five years after the cases that were the subject of the FIRs in 2009; the Tribunal then states: “it is questionable as to whether a lawyer would advise the Applicant that the RAB (‘Rapid Action Battalion’ of the Bangladeshi Police) will kill him in cross-fire or why he advises the Applicant not to return and engage in any Court proceedings.” Again by way of comment: it is not clear how or why the Tribunal did not make any enquiries of Mr Karim in order to clarify any of the questions it had arising from his letter especially when it had contact details for him before it.
At par. 60 the Tribunal noted the confluence of dates with the letter being sent in February 2014 and the Application for Protection being lodged in March of the same year. In the same place, the Tribunal concluded in the following terms: “the letter’s contents were essentially self-serving and it is not written in the style of legal advice or a request for instructions from the Applicant.” It is not stated anywhere what criteria were used by the Tribunal to determine how it concluded that the letter was not written in “the style of legal advice.” For example, it is not clear whether or not the “style standard” determined by the Tribunal had any relevance to any standard legal style in Bangladesh or some other relevant standard. It is unclear whether or not the Tribunal itself had any relevant expertise in determining what the pertinent style of a legal letter from Bangladesh was or is.
Also, although not raised as a ground of review, during the hearing there was discussion as to whether the Tribunal’s consideration and treatment of the correspondence tendered before it from Bangladesh which contained less than perfect expression in the English language in any way amounted to or at least raised the spectre of some sort of bias.[6]
[6] See, for example, the discussion at Transcript (20th March 2017) pp.4 & 5.
At par. 61 the Tribunal again raised the country information regarding a “high level of document fraud in Bangladesh.” The Tribunal acknowledged and accepted that “not all documents were necessarily be false” but nonetheless immediately concludes that “given the timing and nature of the document the Tribunal does not give it any weight in supporting the Applicant’s claims that he was charged with two false charges in Bangladesh in 2009.” Absent making any relatively straight-forward enquiry of Mr Karim to clarify any of its concerns about the letter, it is difficult to see how the Tribunal could reasonably conclude and reason from general country information that this letter in this particular case does not warrant any weight at all to be given to it.
The next part of the Tribunal’s reasons dealt with a claim that the Applicant’s brother was threatened when he returned to Bangladesh in 2013 – 2014. Because of the relative lack of significance of this part of the claim I do not propose canvassing it in any detail except to record that the Tribunal did not accept that the Applicant’s brother “or the Applicants [sic] were threatened with harm for reasons of political opinion” (par. 67).
The Tribunal then turned to a question it posed regarding the Applicant’s alleged delay in making an Application for protection (pars. 68 - 72).
In short, the Applicant said he did not apply for a protection visa earlier simply because he was embarrassed and not really sure about the process of doing so. In response, the Tribunal concluded that because he had lived and studied in Australia since 2009 it was a reasonable expectation that he would have sought advice in relation to his skilled visa and that “he could have sought migration advice in relation to his claimed fear of returning to Bangladesh” (par. 69). Indeed the Tribunal concluded that it was implausible that the Applicant would not have sought advice in relation to taking steps to protect himself at an earlier stage and it rejected the Applicant’s reasons of embarrassment. Again one might ask, not unreasonably, why a person seeking the protection in another country might not be in some ways embarrassed about seeking refuge. What might seem logical to an experienced member of a Tribunal in the relative comfort and security of Australia might again be to impose a counsel of perfection upon someone with a troubled history from his or her native land.
At pars. 73 – 82 the Tribunal generally assessed whether or not the Applicant met “the refugee criterion.” Most relevantly in this section the Tribunal addressed the country information before it. In particular it noted that “Bangladesh has experienced high levels of politically motivated violence in recent years.” It then sets out information from the Department of Foreign Affairs and Trade in a report dated July 2016 specifically in relation to restrictions on BNP meetings and protests in rural areas as well as business owners in rural areas being the subject of extortion demands by Awami League activists. This report also noted that the Awami League youth wings have restricted BNP activities on university campuses. At par. 79, the Tribunal stated: “DFAT assesses that BNP leaders are subject to high levels of official discrimination during periods of heightened political tension and BNP supporters or members may be subjected to a low level of violence associated with extortion in rural areas.” The Tribunal concluded at par. 80, that the Applicant is not a BNP leader and lived and worked in Dahaka before his departure from Bangladesh. It went on to state that it considered that the Applicant does not have a profile “which may possibly bring him to the adverse attention of Awami League activists or the current government authorities if he should return to Bangladesh now or in the foreseeable future.” This led the Tribunal to conclude, at par. 82 that if the Applicant returned to Bangladesh now or in the foreseeable future there was not a real chance he would face serious harm for reasons of his previous membership of the youth wing of the BNP (the Chatra Dal) or for his support of the BNP more generally.
Finally, at pars. 83 – 86 the Tribunal concluded that for the reasons previously given the Applicant did not meet the complementary protection criterion set out in the Migration Act (s.36(2)(aa)). Somewhat curiously however at par. 85 the Tribunal stated that there was “no credible country information indicating that as a supporter of the BNP living in Dahaka the Applicant would face a risk of being arbitrarily deprived of his life” and other relevant harms there set out. This might be somewhat inconsistent with the DFAT report referred to in pars. 78 and 79 which refers to potential risk to both BNP supporters and members in rural areas.
Applicant’s Grounds of Appeal/Review
The Applicant’s Grounds of Review are as follows:
1) The Tribunal erred in making a finding (that is rejecting the applicant’s claim) that the applicant did not continue to be a member of the Chatra Dal or BNP after he left college or that he continued to be active as a BNP member and supporter until he left Bangladesh for Australia in 2009 [discussed at paragraphs 21 - 36 and 76 of the Statement of Decision and Reasons] as the finding was not founded on an adequate evidentiary basis
2) The Tribunal erred in making a finding that the letter from Rashid Habib dated 5 February 2014 should be given no weight [discussed at paragraphs 30 to 34 of the Statement of Decision and Reasons] as the finding was not founded on an adequate evidentiary basis.
3) The Tribunal erred in making a finding (that is rejecting the applicant’s claim) that neither Awami League activists nor any other persons lodged false cases against the applicant in February and April 2009 [discussed at paragraphs 37 to 52, 62 and 77 of the Statement of Decision and Reasons] as the finding was not founded on an adequate evidentiary basis.
4) The Tribunal erred in making a finding that the First Information Report dated 15 February 2009 and the First Information Report dated 20 April 2009 do not support the applicant's claim that he has had two false cases lodged against him and that a warrant of arrest has been issued [discussed at paragraphs 37 to 56, 62 and 77 of the Statement of Decision and Reasons] as the findings were not founded on an adequate evidentiary basis.
5) The Tribunal considered the letter from AKM Rezaul Karim dated 6 February 2014. The necessary inference from the Tribunal’s Reasons is that the Tribunal rejected or gave no weight to the letter dated 6 February 2014 [discussed at paragraphs 57 to 62 of the Statement of Decision and Reasons]. The Tribunal erred in making a (inferential) finding that the letter from AKM Rezaul Karim dated 6 February 2014 should be given no weight as the finding was not founded on an adequate evidentiary basis.
6) The Tribunal erred in making a finding (that is rejecting the applicant’s claim) that neither the applicant's brother nor the applicant were threatened with harm for reasons of political opinion when his brother returned to Bangladesh in 2013/2014 [discussed at paragraphs 63 to 67 of the Statement of Decision and Reasons] as the finding was not founded on an adequate evidentiary basis.
7) The Tribunal erred in rejecting applicant's explanation for the delay in making an application for protection [discussed at paragraphs 68 to 72 of the Statement of Decision and Reasons] as the finding was not founded on an adequate evidentiary basis.
8) The Tribunal erred in making a finding that the applicant was not a member or office bearer of the BNP or its student wing before he left Bangladesh in 2009 [discussed at paragraphs 84 of the Statement of Decision and Reasons] as the finding was not founded on an adequate evidentiary basis.
9) The Tribunal erred in making a finding that there is no real chance the applicant will face serious harm for reasons of his previous membership of the Chatra Dal as a student or for his support for the BNP if he returns to Bangladesh now or in the foreseeable future and further the Tribunal erred in making a finding that the applicant does not have a well founded fear of persecution for reasons of political opinion [discussed at paragraphs 82, 86 of the Statement of Decision and Reasons] as these findings were not founded on an adequate evidentiary basis.
Submissions on behalf of the Applicant
The Applicant filed submissions on 3rd March 2017; they were as follows:
Introduction
1) The Applicant was born on XX XXX 1979 and is 37 years of age. He was born in Madaripur, Dhaka, Bangladesh.
2) From January 1997 to the end of 2001 the Applicant studied mathematics in Bangladesh. Whilst a student the Applicant was involved in political activities for the Bangladesh Jatiotabadi Chatra DAL, Bangladeshi National Party (BNP). After completing his studies the Applicant continued his political involvement with the BNP [CB: 7; 177].
3) The Applicant’s political involvement resulted in him being (falsely) accused of violent acts causing death during a protest strike in early 2009. The Applicant says that violence occurred and people died but that he was not involved in the violence. As a result of the incident the Applicant went into hiding and in August 2009 he left Bangladesh for Australia travelling on a student visa.
4) In 2012 the Applicant applied for a skilled visa but his application was rejected on the basis he failed the English language test [CB: 227].
5) In March 2014 the Applicant applied for a protection visa. In October 2014 the protection visa application was refused. The Applicant appealed the October 2014 decision. On 1 August 2016 the Tribunal affirmed the October 2014 decision and published its Statement of Decision and Reasons (Reasons); [CB: 328-340].
6) The Applicant now seeks to appeal the Tribunal’s August 2016 Decision.
7) The Tribunal made a finding of two ultimate facts on which it based its decision to reject the Applicant’s application being:
a) a finding that the applicant was not a member or office bearer of the BNP or its student wing before he left Bangladesh in 2009 (Ground 8);
b) a finding that there is no real chance the applicant will face serious harm for reasons of his previous membership of the Chatra Dal as a student or for his support for the BNP if he returns to Bangladesh now or in the foreseeable future (Ground 9).
8) The two ultimate facts in issue were based on the following findings of fact:
a) the applicant did not continue to be a member of the Chatra Dal or BNP after he left college (Ground 1);
b) the letter from Rashid Habib dated 5 February 2014 should be given no weight (Ground 2);
c) neither Awami League activists nor any other persons lodged false cases against the applicant in February and April 2009 (Ground 3);
d) the First Information Report dated 15 February 2009 and the First Information Report dated 20 April 2009 do not support the applicant's claim that he has had two false cases lodged against him and that a warrant of arrest has been issued (Ground 4);
e) the letter from AKM Rezaul Karim dated 6 February 2014 should be given no weight (Ground 5);
f) neither the applicant's brother nor the applicant were threatened with harm for reasons of political opinion when his brother returned to Bangladesh in 2013/2014 (Ground 6).
9) The Applicant also provided the Tribunal with photographs of himself attending protests and activities involved with the Bangladesh Jatiotabadi Chattra DAL: RXXX 1/9/16 par 8 (d); Annexure “XX5”. The Tribunal makes no reference to these photographs in its Reasons and they are not included in the Court Book.
Relevant Law
10) Where the ultimate fact in issue (factum probandum) is based on facts adduced to prove or disprove that ultimate fact (facta probantia) the question of whether the accepted facta probantia establishes the factum probandum is a question of law: Hayes v Federal Commissioner of Taxation (1956) 96 CLR 47, 51.
11) The question of whether there is any evidence of a particular fact is a question of law: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321.
12) The question whether a particular inference can be drawn from facts found or agreed is a question of law because before the inference is drawn, there is a preliminary question as to whether the evidence reasonably admits a different conclusion: Minister for Immigration & Multicultural Affairs v Al-Miahi [2001] FCA 744 per Sundberg, Emmett and Finkelstein JJ at [34].
13) In circumstances where an obvious inquiry would resolve a question material fact the Tribunal has a duty to make reasonable inquiry. The failure to make the inquiry is a jurisdictional error: Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 at [25].
14) The Tribunal’s reasons are required to disclose its process of weighing evidence and preferring some over the other: Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114 [MZYTS] at [50].
15) A decision will be set aside where the decision maker has made a finding of fact without probative evidence to support it or the decision maker has drawn an inference which was not open on the primary facts: Bell v Commissioner of Taxation [2012] FCA 1042 at [84].
16) A court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance: Minister for Aboriginal Affairs v Peko- Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at pp 40-42 per Mason J.
Factum Probantia Issues
The Applicant continued as a member of BNP after he left college [Ground 1]
17) The Tribunal accepted that the Applicant was a member and supporter of the BNP whilst a college student [Reasons paragraph 35; CB: 332]. However the Tribunal made a finding that the Applicant did not continue to be a member of the BNP after he left college or that he continued to be active as a BNP member and supporter until he left Bangladesh [Reasons paragraphs 21 - 36 and 76; CB: 331, 338].
18) The basis of the Tribunal’s finding is that the Applicant’s oral evidence was “vague and ambiguous” [Reasons paragraph 28; CB: 332]. The Tribunal states that the Applicant’s answers with regard to his involvement in political activities in 2003 lacked specific details and was described in ‘very general terms’ [Reasons paragraph 25; CB: 332]. However contra to this, according to the Tribunal, the Applicant also stated that he was involved in “protests against hartals, strikes and protests conducted by the Awami League supporters” [Reasons paragraph 27; CB: 332].
19) Apart from the summary of the Applicant’s answers [as set out paragraph 25 of the Reasons] and the Applicant’s failure to recall some names [see Reasons paragraph 29] the Tribunal does not recount or set out what the Applicant’s evidence was or set out in what way the Applicant’s answers were “vague and ambiguous”. Further the Tribunal offers no explanation as to why the Applicant’s answers [summarised in paragraph 27 of the Reasons] are (implicitly) insufficient.
20) The Tribunal has not provided an adequate evidentiary basis for the finding that the Applicant’s evidence was “vague and ambiguous” and therefore such a finding was not reasonably open to the Tribunal.
Letter from Rashid Habib [Ground 2]
21) The Tribunal made a finding that the letter from Rashid Habib dated 5 February 2014 should be given no weight [discussed at paragraphs 30 to 34 of the Reasons; CB: 332].
22) The Tribunal’s finding that the letter from Rashid Habib dated 5 February 2014 should be given no weight appears to be based on the proposition that Mr Habib was in gaol on remand on 5 February 2015 [Reasons paragraph 31; CB: 332].
23) The Tribunal required the Applicant to provide an explanation as to how Habib could sign the letter whilst on remand. The Applicant speculated that his brother may have obtained Mr Habib’s signature whilst Habib was in gaol. The Tribunal with no evidence and no reasonable basis gave no weight to Habib’s letter and concluded that the Applicant’s answer was “not impossible” but “implausible” [Reasons paragraph 33; CB: 332]. It was unfair of the Tribunal to require the Applicant to provide an explanation for a factual scenario in Bangladesh when he was not present in Bangladesh at the relevant time and has no experience of a similar fact scenario.
24) The finding that Habib’s signature on the 5 February 2014 letter “implausible” was not (reasonably) open to the Tribunal as there was no evidence to support the finding.
False Claims against the Applicant [Grounds 3 & 4]
25) The Tribunal made a finding that neither Awami League activists nor any other persons lodged false cases against the applicant in February and April 2009 and that the First Information Report dated 15 February 2009 and the First Information Report dated 20 April 2009 do not support the applicant's claim that he has had two false cases lodged against him and that a warrant of arrest has been issued [discussed at paragraphs 37 to 56, 62 and 77 of the Reasons; CB: 333, 336, 338].
26) At the Tribunal hearing the Applicant said that he was involved in a hartal (strike protest), police became involved and a number of people were killed (Relevant Incident). After the hartal the Applicant went into hiding until August 2009 when he left Bangladesh [Reasons paragraph 44; CB: 334].
27) Sometime after the hartal the Applicant was informed by his brother that the police had sent a letter to his house. It was through the letter, via his brother, that the Applicant became aware that (false) cases had been lodged against him [Reasons paragraph 48; CB: 334].
28) The Applicant stated that he considered that his political opponents (Awami League activists) had made the false allegations against him which resulted in two First Incident Reports being made [Reasons paragraphs 42, 43, 52; CB: 334, 335]. The two First Information Reports (FIRs) are dated 15 February 2009 and 20 April 2009.
29) It seems that the Applicant said that the Relevant Incident occurred on 15 February 2009 [Reasons paragraph 44; CB: 334] and he also said that the Relevant Incident occurred in March 2009 [Reasons paragraph 49; CB: 334].
30) The Tribunal stated that it was “not plausible” that the Applicant would attend an interview (with the Tribunal) and provide the two FIRs without having “a clearer idea of when the incidents took place and when the FIRs were lodged”. The Tribunal further considered that the Applicant should have had “a better recall of the general time frames of these events” [Reasons paragraph 54; CB: 335].
31) The Applicant’s evidence before the Tribunal was that he was involved in a number of protests and strikes [Reasons paragraph 27; CB: 332] and that there was one particular incident (the Relevant Incident) where the police became involved, people were killed and as a result the Applicant went into hiding.
32) The Tribunal’s view as to the implausibility of the Applicant’s evidence and recollection of events appears to be based on the presumption that the FIRs were accurate, particularly that there were two incidents the Applicant was involved in and that the dates of these incidents were as asserted in the FIRs. The Tribunal’s view was notwithstanding the Applicant’s evidence there was one Relevant Incident after which he went into hiding until he left Bangladesh. Given that the primary thrust of the Applicant’s evidence is that the FIRs were false, in the absence of contradictory evidence, the Tribunal has no basis to proceed on the presumption that the content contained in the FIRs were accurate.
33) The criticism that the Applicant did not have “a clearer idea of when the incidents took place” is without foundation in circumstances where the Applicant’s evidence is that the Relevant Incident occurred on 15 February 2009 or March 2009, being a time window of a mere few weeks. The Tribunal’s criticism is unreasonable given that several years have passed since the events of early 2009.
34) The Tribunal was suspicious that the copies of the FIRs were printed on the same type of paper and with the same headings and suspected that both documents may have been produced at the same time [Reasons paragraph 46; CB: 334]. The Applicant’s evidence is that the documents were obtained by his brother in 2014 and then provided to him. Any answer the Applicant gave about the errors in the documents or the documents themselves can only be speculation, just as any opinion the Tribunal formed about the documents must also be speculative. Given that the two FIRs were purportedly written two months apart and (presumably) copied some five years later that they appear to be on the same type of paper and with the same heading is not suspicious but rather (one may further speculate) to be expected.
35) The Tribunal concluded that the Applicant “could not satisfactorily explain why he had not been arrested” [Reasons paragraph 55; CB: 335]. This conclusion is based on the Applicant’s speculation as to the ease of finding people and that he had obtained a police clearance for his student visa. With respect the Applicant was not in a position to know what resources the police had or what application of these resources the police may have used regarding finding him to arrest him. Further the Tribunal does not indicate when the Applicant applied for the student visa or set out what processes and checks the police had and used when assessing an application for a student visa.
36) The Tribunal’s conclusion that the Applicant “could not satisfactorily explain why he had not been arrested” is most peculiar, without adequate basis and should be rejected. The Tribunal required the Applicant to speculate as to what was in the mind of the police and how they conducted their work.
37) The Tribunal determinations that the two FIRs did not support the Applicant’s claim, that there had been false claims lodged against him, and that no warrant for his arrest had been issued were based on what the Tribunal termed “anomalies” and “the prevalence and ease of obtaining false documents” [Reasons paragraph 55; CB: 335]. This determination is necessarily based on the presumption that the FIRs and Warrant are fraudulent documents.
38) Presumably the “anomalies” the Tribunal is referring to are the issues articulated in the Reasons at paragraphs 37 to 55. These have been substantially addressed above.
39) The assertion that fraudulent documents are obtainable in Bangladesh does not, without more, provide a basis for the Tribunal to make a finding that the documents the Applicant has presented to it are fraudulent. The Tribunal has not provided an adequate evidentiary basis for the finding that the FIRs and Warrant are false documents and therefore such a finding was not reasonably open to the Tribunal.
Letter from Rezaul Karim [Ground 5]
40) The Tribunal considered the letter from Rezaul Karim dated 6 February 2014. The Tribunal gave no weight to the letter in supporting the Applicant’s claim that he was charged with two false cases in 2009 [discussed at paragraphs 57 to 62 of the Reasons; CB: 335-6]. The necessary inference from the Tribunal’s Reasons is that the letter dated 6 February 2014 was fraudulent.
41) The Karim letter clearly states that a warrant had been issued for the Applicant’s arrest and that the Applicant was at risk of personal harm or imprisonment if he returned to Bangladesh.
42) The Tribunal rhetorically asked why the letter was written in February 2014, why Mr Karim wrote the letter in English when it was apparent that he had limited English proficiency and further speculates about the letter’s contents and lack of content. Then on the basis that “there is a high level of document fraud in Bangladesh” the Tribunal determined to give no weight to Mr Karim’s letter, inferentially finding that the Karim letter was fraudulent.
43) Rezaul Karim is a member of the Dhaka Bar Association. The address on Karim’s letter dated 6 February 2014 is that of the Dhaka Bar Association. Rather than speculating about the letter the Tribunal could have made inquiry of Mr Karim and obtained information as to the bona fides of the letter from the author: MZYTS at [25]. It does not appear from the Reasons that the Tribunal made any attempt to ascertain the bona fides of the Karim letter.
44) The Tribunal has not provided an adequate evidentiary basis for the inferential finding that the letter from Mr Karim is a false document and therefore such a finding was not open to the Tribunal. The Tribunal’s conclusion that Mr Karim’s letter should be given no weight is without basis and should be rejected: MZYTS at [50].
Applicant’s brother threatened [Ground 6]
45) The Tribunal made a finding that neither the applicant's brother nor the applicant were threatened with harm for reasons of political opinion when his brother returned to Bangladesh in 2013/2014 [discussed at paragraphs 63 to 67 Reasons; CB: 336-7].
46) The Applicant’s brother left Bangladesh in 2003 and returned for a visit in 2013/14. The Applicant asserts that his brother was threatened because of the Applicant’s previous political activities [up to and including 2009] and that the brother subsequently made a complaint to the police at Shobujbagh in writing [Reasons paragraph 63, 64; CB: 336].
47) The Tribunal rejected the Applicant’s assertion (and the supporting complaint letter) on the basis that it was “implausible” that someone would recognise the Applicant’s brother in his home area because the brother had been away for ten years and Dhaka has a population of 15 million people. The Applicant’s response was that in the neighbourhood where he (and presumably his brother) grew up “everyone knew each other and would be aware of a person’s presence in the area” [Reasons paragraph 66; CB: 337]. At least superficially the Applicant’s response is reasonable or at the minimum plausible.
48) There is nothing in the Reasons to indicate that the Tribunal assessed or considered the Applicant’s response. There is no consideration of the geography or socioeconomic composition of the Applicant’s neighbourhood. There is no consideration of the family and kinship connections in the relevant area.
49) The Tribunal’s finding was essentially that the Applicant’s brother lied and necessarily implies that the Applicant’s brother’s letter was a fabrication. There is nothing in the Reasons to indicate that the Tribunal considered the credit of the Applicant’s brother. There is nothing in the Reasons to indicate that the Tribunal had a basis for its finding that the Applicant’s brother fabricated a story and supporting documents: MZYTS at [46].
50) In the absence of a reasonable and appropriate consideration of the evidence about the Applicant’s home area and of the Applicant’s brothers credit worthiness the Tribunal’s conclusion that neither the Applicant's brother nor the applicant were threatened with harm for reasons of political opinion should be rejected.
Ground 7
51) The Tribunal rejected the Applicant's explanation for the delay in making an application for protection [discussed at paragraphs 68 to 72 of the Reasons; CB: 336-8].
52) In August 2009 the Applicant came to Australia on a student visa. In 2012 the Applicant applied for a skilled visa but was rejected because he failed to meet the English language requirements. In March 2014 the Applicant applied for a protection visa.
53) The Applicant did not apply for a protection visa before March 2014 because he wanted to obtain a skilled visa and was embarrassed and unsure of the process to obtain a protection visa [Reasons paragraph 72; CB: 337-8].
54) The Tribunal rightly accepts that delay in applying for a protection visa is not incompatible with a person having a well-founded fear of serious harm. However without providing any adequate reason the Tribunal rejects the Applicant’s explanation for his delay in seeking a protection visa. The highest the Tribunal goes is to surmise that the Applicant “would have been aware that he could have sought migration advice” in relation to his concerns [Reasons paragraph 69, 72; CB: 337-338].
55) The Applicant’s explanation of wanting to obtain skilled visa is entirely compatible with not seeking a protection visa. Obviously had the Applicant been successful in obtaining the skilled visa it would not have been necessary to apply for a protection visa.
56) The Tribunal provides no evidence or reasoning as to the basis for it rejecting the Applicant’s explanation for his delay in applying for a protection visa and therefore the finding was not open to the Tribunal.
Factum Probandum Issues
Ground 8 & 9
57) The Tribunal makes ultimate (factum probandum) findings that:
a) the applicant was not a member or office bearer of the BNP or its student wing before he left Bangladesh in 2009 [discussed at paragraphs 84 of the Reasons];
b) there is no real chance the applicant will face serious harm for reasons of his previous membership of the Chatra Dal as a student or for his support for the BNP if he returns to Bangladesh now or in the foreseeable future; and
c) the Applicant does not have a well-founded fear of persecution for reasons of political opinion [discussed at paragraphs 82, 86 of the Reasons; CB: 338] .
58) These ultimate findings are all based on the findings challenged in grounds 1 through to 7 above (the facta probantia issues).
59) The Applicant submits that if the facta probantia findings fail for want of an adequate evidentiary basis then the ultimate findings of fact must also fail for want of probative evidence to support the inferential findings: Bell at [84].
60) The Applicant submits that contra to the Tribunal’s findings the Applicant’s evidence reasonably admits a different conclusion, that he does meet the refugee criterion in s36(2)(a) Migration Act: Al-Miahi at [34].
Submissions on behalf of the Respondent
The Respondent filed submissions on 10th March 2017; they were as follows:
1) This is an application for review of a decision of the Administrative Appeals Tribunal (the Tribunal) made on l August 2016 (CB 328-343) affirming a decision of a delegate of the First Respondent refusing the Applicant a protection visa.
2) The Applicant is a citizen of Bangladesh who first arrived in Australia on 5 August 2009 as a student: CB 329 [1]. He applied for a protection visa on 3 March 2014: CB 3-142. The delegate interviewed the Applicant on 11 September 2014: CB 230.4, and refused the visa on 1 October 2014: CB 214-243. The Applicant applied to the Tribunal for review on 27 October 2014: CB 253-259. The Tribunal held a hearing on 9 June 2016: CB 140-142.
3) The Applicant claimed to fear harm in Bangladesh for reason of his political opinion. He claimed to be a member of the Bangladesh National Party (BNP) and to fear harm from members of the rival Awami League. He claimed that false charges were laid against him in 2009. The Tribunal accepted that the Applicant was a member of the Chatra Dal, the student wing of the BNP, when he was in college in Bangladesh, but not that he had any involvement with the BNP after he left college in 2003: CB 332-333 [35-36], 338 [75-76]. It did not accept his claim that he was the subject of false charges in 2009, noting concerns with the documents submitted by the Applicant in support of this claim, country information on document fraud in Bangladesh and inconsistencies between the Applicant’s claims to the delegate and the Tribunal: CB 333-336 [37-62], 338 [77]. The Tribunal found that the Applicant did not face a real chance of harm in Bangladesh as a BNP supporter: CB 338-339 [78-82], 339 [84-85]. Accordingly the Tribunal affirmed the delegate’s decision.
4) The Application contains nine grounds. All of them claim that findings of the Tribunal did not have an “adequate evidentiary basis”. It is not clear what recognised jurisdictional error by the Tribunal is thereby asserted. There is no error of law in the Tribunal making a wrong finding of fact: Waterford v Commonwealth (1987) 163 CLR 54 at 77; Australian Heritage Commission v Mount Isa Mines Ltd (1997) 187 CLR 297 at 303; Abebe v Commonwealth (1999) 197 CLR 510 at [137]. Nor can the Court review the merits of the Tribunal’s decision: MIEA v Wu Shan Liang (1996) 185 CLR 259 at 272; MIMA v Eshetu (1999) 197 CLR 611 at [56]. On examination all of the grounds are essentially seeking merits review.
5) Ground one claims that the Tribunal erred in finding the Applicant did not play an active role in the BNP after 2003: CB 333 [36]. The Tribunal explains that it considered his evidence vague and general and not indicating personal experience of political activity with the BNP: CB 332 [25], [28], [29]; 333 [36]. That provides an evidentiary basis for its conclusion. The Applicant’s submissions appear to assert that the Tribunal was obliged to recite in more detail in its reasons what evidence it considered vague and why, but there is no such obligation in s 430 of the Migration Act 1958 (the Act). The obligation under s 430(1)(c) of the Act only requires the Tribunal to set out the findings it has in fact made: MIMA v Yusuf (2001) 206 CLR 323 at [68-69] per McHugh, Gummow and Hayne JJ. This ground fails.
6) Ground two claims that the Tribunal erred in giving no weight to the letter at CB 45. The Tribunal explains why it does so at CB 332 [30-34]. The criticisms of this reasoning in the Applicant’s submissions are just seeking merits review. The Tribunal did not, as asserted in the Applicant’s submissions, unfairly “require” an explanation from the Applicant of the difficulty identified by the Tribunal that the writer of the letter appeared to have been in jail when it was written: it simply records raising this with the Applicant and noting his response: CB 332 [31]. The Tribunal notes that the delegate had referred to media reports that the writer was in jail (CB 231.8), so it cannot be said that there was “no evidence” for the Tribunal’s conclusion as asserted in the Applicant’s submissions. Given that the weight to be given to evidence is a factual matter for the Tribunal (Eshetu at [44-45]), this ground is really just seeking merits review or alleging a wrong finding of fact by the Tribunal, and so fails.
7) Grounds three and four claim that the Tribunal erred in rejecting the Applicant’s claims that there were false charges against him: CB 333-336 [37-62]. The Applicant’s submissions in support of these grounds simply argue with the Tribunal’s reasons and patently seek merits review. While these grounds are not framed as complaints of illogicality, it is useful to note that if they were the Court would need to be satisfied of “extreme” illogicality within the principles discussed in CQG15 v MIBP [2016] FCAFC 146 at [59-61]. These grounds fail.
8) Ground five claims the Tribunal erred in giving no weight to the letter at CB 39. The Tribunal explains the difficulty it has with this letter at CB 335-336 [57-61]. Again the Applicant’s submissions simply argue with the Tribunal’s reasoning and seek merits review. There was no obligation on the Tribunal to make further inquiries as seems to be suggested in the Applicant’s submissions. The Tribunal was never asked to do so, and it can hardly be said that there was an obvious inquiry about a critical fact, the existence of which is easily ascertained within MIAC v SZIAI (2009) 259 ALR 429 (HCA) at [25]. Indeed any such inquiry would seem to suffer from the same difficulties identified in SZIAI at [26]. This ground fails.
9) Ground six claims that the Tribunal erred in rejecting the Applicant’s claim that his brother was threatened in Dhaka in 2014: CB 333-334 [63-67]. The Tribunal explains why it considered this claim implausible. Again, the Applicant’s submissions simply argue with the Tribunal’s reasons and seek merits review. Contrary to assertions in the Applicant’s submissions, the Tribunal did not find that the Applicant’s brother was not credible or had fabricated evidence (unsurprisingly as the brother did not even give evidence to the Tribunal), but rather that the Applicant’s claim about his brother was implausible. The Tribunal did not have to do more; indeed there is authority that the Tribunal should not too readily make findings that an applicant or witness is a liar: CQG15 at [50-51],[66]. While this ground is not framed as a complaint of illogicality, it is useful to note that in MIAC v SZMDS (2010) 240 CLR 611 at [86] Heydon J found there was no illogicality in the Tribunal not regarding as satisfactorily explained something which was nevertheless capable of being believed. This ground fails.
10) Ground seven claims that the Tribunal erred in rejecting the Applicant’s explanation for the delay in him applying for the protection visa: CB 337 [68-72]. Again, the Applicant’s submissions simply argue with the Tribunal’s reasons and seek merits review. The Tribunal was not obliged to accept the Applicant’s explanation, and did not need rebutting evidence before rejecting it eg CQG15 at [65]. This ground fails.
11) Ground eight repeats ground one and fails for the same reasons.
12) Ground nine claims that the Tribunal erred in finding that the Applicant’s claimed fears were not well founded: CB 339 [82], [86]. Again, this simply seeks merits review and so fails.
13) The Applicant has filed an affidavit on 1 September 2016 stating that he provided certain documents to the Tribunal. While the documents marked in the affidavit as XX2, XX3 and XX4 are in the Court Book, the Court Book does not contain the photos marked as XX5 which the Applicant claims were given at the hearing. Nor is there anything in the Court Book to suggest that they were ever before the Tribunal.
14) While the photos marked XX5 do not seem relevant to any ground of review, the First Respondent disputes that they were provided at the hearing as asserted and for abundance of caution will seek leave to file a transcript of the hearing.
15) As there is no jurisdictional error in the Tribunal’s decision it is a “privative clause decision” within s 474 of the Act.
16) The application should be dismissed with costs, in at least the amount set out in Item 3 of the table in Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001. The First Respondent reserves his right to make further submissions on the issue of costs if necessary.
Outline of Principle
Before turning to a more detailed consideration of the findings and reasons of the Tribunal, I set out the following general summary of principle.
In Appellant S395/2002, at [16], McHugh and Kirby JJ said (internal citations omitted):[7]
The 1951 Convention relating to the Status of Refugees declares that for the purpose of the Convention a refugee is a person who:
“owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country ...".
[7] Appellant S395/2002 v Minister for Immigration & Multicultural Affairs (2003) 216 CLR 473. See also, VBAO v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 233 CLR 1 at [11] and [12] (Gummow J).
There are subjective and objective elements of the definition of “fear of persecution.”[8]
[8] Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379; Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16.
The Court does not, and ought not, engage in ‘merits review’.[9]
[9] Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-37 (Brennan J); Minister for Immigration and Citizenship v Li (2013) 297 ALR 225 at [66] (Hayne, Kiefel & Bell JJ).
The weighing of the various pieces of evidence is a matter for the Tribunal.[10] That said, the Full Court of the Federal Court said, at [70] in Minister for Immigration and Border Protection v MZYTS (emphasis added):[11]
… we consider this is the conclusion reached by Robertson J in SZRKT, most directly expressed at [98], where his Honour states that the identification of jurisdictional error cannot “put out of account the actual course of decision-making by the Tribunal” and cannot proceed “by reference to categories or formulas”, observing that “there are many ways, actual or constructive, of failing to consider the claim”. His Honour develops this at [111] by disavowing any jurisdictional/non-jurisdictional distinction between claims and evidence and instead finding, correctly in our respectful opinion, that the “fundamental question must be the importance of the material to the exercise of the Tribunal’s function and thus the seriousness of any error”. We agree with his Honour’s analysis.
[10] See Abebe v Commonwealth (1999) 197 CLR 510 at [197] (Gummow & Hayne JJ).
[11] Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431.
In the same case, MZYTS, at [68], their Honours (Kenny, Griffiths and Mortimer JJ) highlighted the importance of a reviewing Court to have regard to whether the Tribunal performed “its statutory task” in having proper regard to the provisions of the Act, the nature of claims made and “the nature of the material ignored.”[12]
[12] See also the further, related discussion by a differently constituted Full Court of the Federal Court (Katzmann, Griffiths and Wigney JJ) in Minister for Immigration and Border Protection v SZSRS (2014) 309 ALR 67.
The nature of proceedings before the Tribunal is inquisitorial, with no general duty for the Tribunal to obtain evidence, but with a requirement, per ss.415 and 420(1) of the Act, to ensure that the discharge of its “core function” to review decisions is by a mechanism that is “fair, just, economical, informal and quick.” The Tribunal is also required, per s.420(2)(a) and (b), to act “according to substantial justice and the merits of the case” but without being bound by “technicalities, legal forms or rules of evidence.”[13] The onus is on the Applicant to put relevant evidence before the Tribunal.[14]
[13] Minister for Immigration & Citizenship v SZGUR (2011) 241 CLR 594 at [1], [19] & [23] (French CJ & Kiefel J); Minister for Immigration & Citizenship v SZKTI (2009) 238 CLR 489 at [3] – [5] & [21] ff.
[14] SZGUR 241 CLR at [83] (Gummow J).
In SZMDS, Heydon J cautioned, at [85] (note 60), that a court should not engage in an exercise of “construing the words of non-judicial decision-makers minutely and finely either with an eye keenly focussed on the perception of error, or with an ear keenly attuned to the perception of error.”[15]
[15] Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611. To similar effect, see the plurality reasons of Brennan CJ, Toohey, McHugh & Gummow JJ in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272, and Kirby J at 291.
The matters before the Tribunal must nonetheless be considered in a ‘proper, genuine and realistic’ manner.[16] However, a reviewing court must also be attentive against importing civil litigation ‘requirements’ (e.g. in relation to matters of evidence) into administrative law.[17]
[16] Minister for Immigration & Citizenship v SZJSS (2010) 243 CLR 164 at [29] – [33].
[17] Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [143] (Gummow J).
In Li, at [22], by reference to SZMDS at [39], French CJ said (internal citations omitted; emphasis added):[18]
… This aspect of the case raises the question whether the decision of the MRT was unreasonable in the sense used by Lord Greene MR in Associated Provincial Picture Houses Ltd v Wednesbury Corporation, that is to say so unreasonable that no reasonable tribunal could have made it. In approaching that question it is necessary to keep in mind the distinction between a decision-maker finding a jurisdictional fact and a decision-maker exercising a discretion.
[18] Minister for Immigration and Citizenship v Li (2013) 249 CLR 332. In SZMDS, Gummow A-CJ and Kiefel J said, at [39]: “Confusion of thought, with apprehension of intrusive interference with administrative decisions by judicial review will be avoided if the distinction between jurisdictional fact and other facts then taken into account in discretionary decision making is kept in view. (footnotes omitted).”
In the words of Gummow and Hayne JJ in S395/2002, at [73], the decision-maker is required “to decide what may happen if the applicant returns to the country of nationality. That is an inquiry which requires close consideration of the situation of the particular applicant.”[19] In the same case, at [78], their Honours also instructed that (emphasis in original; internal citations omitted):
The central question in any particular case is whether there is a well-founded fear of persecution. That requires examination of how this applicant may be treated if he or she returns to the country of nationality. Processes of classification may obscure the essentially individual and fact-specific inquiry which must be made.
[19] Appellant S395/2002 v Minister for Immigration & Multicultural Affairs (2003) 216 CLR 473.
The integers for who constitutes a “refugee” for the purposes of the Act are discussed by Gummow J in VBAO at [11] – [22].[20] In the same case, at [1], Gleeson CJ and Kirby J, and Gummow J at [16] – [20], discuss “threat” for the purposes of the Act.
[20] VBAO v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 233 CLR 1.
Many of the relevant legal principles which guide the review of findings concerning credibility were recently summarised by the Full Court in CQG15 v Minister for Immigration and Border Protection at [36]-[44] (McKerracher, Griffiths and Rangiah JJ), thus:[21]
[21] CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 174.
(a) McHugh J’s oft quoted comments in Ex parte Dumairajasingham (which were cited by the primary judge in the proceedings here) to the effect that a finding on credibility is the function of the primary decision-maker (or Tribunal) par excellence, does not mean that such findings are not susceptible to review for jurisdictional error on several potential grounds;
(b) the issue whether or not a credibility finding is tainted by jurisdictional error is “a case specific inquiry” and it is not one which should be analysed by reference to fixed categories or formulas (SZRKT at [77] per Robertson J);
(c) in each case, what the decision-maker has decided must be analysed in detail in order to determine whether or not a jurisdictional error has occurred (SZRKT at [77] per Robertson J); and
(d) without derogating from what is said above regarding the danger of relying too heavily on “fixed categories or formulas” (which includes the danger of blindly repeating McHugh J’s comments in Ex parte Dumairajasingham), adverse credibility findings might involve jurisdictional error on recognised grounds such as:(i) failure to afford procedural fairness;
(ii) reaching a finding without a logical or probative basis;
(iii) unreasonableness; and/or
(iv) other grounds as discussed by Flick J in SZVAP v Minister for Immigration and Border Protection [2015] FCA 1089; 233 FCR 451 at [20] – [21] and in SZSHV v Minister for Immigration and Border Protection [2014] FCA 253 at [31], as referred to approvingly by the Full Court in CQG15 at [40]-[42].Three final matters might be noted as points of relevant reference for the current matter.
First, there is a brief discussion of bias in matters of the present kind set out in SZJSS, at [41] – [44].[22] Because the question of “bias” was raised generally during the hearing but not formally relied upon by the Applicant, and because it was not formally addressed by either party, I simply record this reference for the sake of completeness.
[22] Minister for Immigration& Citizenship v SZJSS (2010) 243 CLR 164. See also the discussion in Re Refugee Review Tribunal; ex parte H (2001) 179 ALR 425.
Secondly, as a general proposition, according to the discussion by French CJ and Kiefel J in SZGUR at [22], there is no legal duty imposed on the Tribunal by s.427(1)(d) to make a particular inquiry. This was somewhat qualified, however, by their Honours, at [23], by reference to comments from the plurality judgment in SZIAI, at [25], where the plurality (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) said (internal citations omitted; emphasis added):[23]
The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error.
[23] Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429.
The third and final matter to note here relates to the extended discussion by the High Court in a number of recent cases as to what does and what does not constitute “unreasonableness”, “illogicality” or “irrationality” in the decision of the Tribunal. The relevant discussions, for current purposes, are those in the joint judgment of Crennan and Bell JJ in SZMDS, at [121] – [131], and by Hayne, Kiefel and Bell JJ in Li, at [63] – [76], and by Gageler J (also in Li), at [88] – [103].[24]
[24] Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; Minister for Immigration and Citizenship v Li (2013) 297 ALR 225. Although the decision in Li relates directly to the Migration Review Tribunal and those sections of the Act which relate to that Tribunal, the principles must, respectfully, apply similarly to the Refugee Review Tribunal.
Consideration & Disposition
Earlier in these reasons I set out in detail the Applicant’s grounds of review, as well as the detailed submissions by the Applicant and the Respondent Minister. I also noted that, in general terms, the Applicant’s grounds of review focussed almost exclusively on alleged lack of evidence by the Tribunal to “ground” its formal findings adverse to the Applicant. More specifically, as set out in his submissions, the Applicant regularly asserted that the Tribunal’s decisions were flawed in all relevant respects because of an “inadequate evidentiary base” for its findings. As well, the Applicant contended that, among other things, the Tribunal failed to disclose its process of “weighing evidence and preferring some over the other” (MZYTS at [50]).
The Appellant further relied upon the High Court’s comments in SZIAI, at [25], in relation to the significance if not importance of making “an obvious inquiry about a critical fact”. This was in relation to the Tribunal’s “failure” to make the straight-forward inquiry about the Appellant’s Bangladeshi lawyer, Mr Karim. In written submissions (par.43 and notes thereto) the Appellant noted that the address on Mr Karim’s letter before the Tribunal was that of the Dhaka Bar Association, and that an inquiry could also have been readily made of the Bangladeshi Bar Association.
I also noted that the basal position of the Minister in relation to all grounds of review in his quite brief, and respectfully somewhat inutile, submissions was that “on examination all of the grounds are essentially seeking [impermissible] merits review” (par.4).
Because of the general nature of the sweeping submissions, or their general similarity, on each side, it is sufficient to direct attention to the issues that in my view warrant the Applicant to succeed rather than to go through each ground of review and the similar response by the Minister in relation to each of them.
First, pursuant to the observations by the High Court in the plurality judgment in SZIAI (at [25]), relevant critical facts highlighted by the Tribunal in the current matter related to (a) the veracity of the Applicant’s claims arising out of the falsity of events set out in two First Information Reports (“FIRs”) in 2009, and (b) the veracity and therefore the reliability of the letter from the Applicant’s lawyer, Mr Karim, in February 2014. Yet, had the Tribunal made the relatively straight-forward inquiry of Mr Karim, and / or the Dhaka Bar Association, and / or the Bangladeshi Bar Association, it would very likely have clarified the status or standing of Mr Karim. Once this was established, one way or the other, it would very likely then have given greater capacity for the Tribunal to make much more settled findings and expose its reasoning in the weighing up of evidence.
For example, if the “obvious inquiry” had been made of any or even all of the three – Mr Karim and or the two Bar Associations – and if Mr Karim had been able to clarify the matters set out in his letter, it is likely that a number of the issues determined adversely to the Applicant would not have occurred. However, because this/these obvious inquiry/inquiries was/were never made, neither the Tribunal nor the Court was or is in a position to make any proper evaluation and reasoned assessment of the Applicant’s claims.
In my view, checking with Mr Karim and or with either of the two Bar Associations was an “obvious inquiry” which related to a number of “critical facts”, not least the detail and or accuracy of the two FIRs.
Instead, the Tribunal simply relied upon its own assessment of the “poor English quality” of the letter (par.58), the provenance of its timing (par.59), its [unstated] lack of “legal style” (par.60) (without stating what is and what is not proper or appropriate “legal style” in Bangladesh), and finally (at par.61) the Tribunal accepted that not all documents “will necessarily be false”, but because of the earlier matters mentioned (e.g. poor English quality, the timing of it), the inference is that the letter is a fabrication and therefore it should be given no weight.
Secondly, some of the reasoning of the Tribunal that relied upon its assessment of “uniform paper in terms of size, colour and apparent age”, accepting of course information available to the Tribunal regarding the prevalence of documentary fraud in the “region”, respectfully attributes to the Tribunal an expertise in assessing such documents (or the Tribunal seems to assume that it has relevant expertise in relation to detecting documentary fraud) that is not immediately evident on the evidence. Moreover, as noted earlier in these reasons, I suggest that documents produced by the Department of Immigration and Border Protection themselves have a degree of uniformity as to size, colour and “elaborate headers”. How and why it follows that such characteristics from one country should invariably be treated with suspicion but not in relation to another country is not readily explained – again allowing the importance of relevant country information.
In a totally different context, quite some years ago the eminent French philosopher, Paul Ricoeur, coined the phrase, “the hermeneutics of suspicion.” A not dissimilar “suspicion” seems to have pervaded much of the Tribunal’s assessment in the current matter. For example, and in addition to the matters already noted, the assessment of “implausibility” regarding Mr Habib’s letter being signed whilst he was in prison is at least curious if not unfortunate. It is difficult to understand how or why the Tribunal considered that a letter being signed in prison was “implausible” and in consequence that it should be given no weight (pars.33 & 34). The “process of weighing up this piece of evidence” was not disclosed on the face of the Tribunal’s reasons. Rather, the Tribunal determined to reject it out of hand simply (and only) because of the unusual but hardly novel circumstance of a document being signed in gaol. Why and how this circumstance was some form of disqualification, per se, was not disclosed by the Tribunal.
In this regard, I rely on the important and typically helpful comments of the Full Court in SZSRS at [52] – [54], particularly in relation to the analytical tool of distinguishing between a claim and supporting evidence. [25] In that case, at [54], their Honours said (emphasis added):
… It may be accepted, too, that the distinction between ignoring evidence and ignoring a claim can be useful. So much was accepted by Robertson J when his Honour described it (at [111]) as a “tool of analysis”. His Honour did not suggest that the previous authorities which had drawn the distinction were wrongly decided. The point his Honour was making was that it is too narrow an approach merely to ask in a case such as this whether the ignored material is a claim or part of a claim on the one hand or evidence on the other. Such an approach may provide the answer in some cases, but not in all. That is because, as his Honour also pointed out (at [98]), the Tribunal can fail to exercise its jurisdiction or fail to consider a claim in a number of different ways, including by ignoring evidence that is important to a claim, or ignoring evidence that, having regard to the course of its decision-making, acquires importance to the exercise of its jurisdiction. Some cases, including the category of case just referred to, may not comfortably fall on either side of the supposed claims/evidence divide, yet the error in ignoring the material may be serious and go to the exercise of the Tribunal’s functions. We respectfully agree with Robertson J’s analysis.
[25] In this regard, see the important and typically helpful comments by the Full Court in SZSRS 309 ALR at [52] – [54], particularly in relation to the analytical tool of distinguishing between a claim and supporting evidence.
In the current matter, it was less a case of the Tribunal ignoring material and more of it simply rejecting it out of hand without, in my view, proper consideration of it. Like the evidence of Mr Karim, the evidence of Mr Habib was rejected (indeed dismissed) in, respectfully, too simplistic a manner. A proper and reasoned “weighing” of these pieces of evidence did not, in my view, occur. There was no evident process by which the Court could safely see that a relevant “state of satisfaction” was concluded by the Tribunal. Rather, the Tribunal merely stated a concern, for example in relation to the letter from Mr Habid, that it was [apparently] signed in prison; therefore it should be rejected and given no weight. Such does not accord with proper and considered reasoning as required by the Full Court.[26]
[26] See MZYTS 230 FCR at [46] and [50].
For the reasons given, which result in the Orders sought by the Applicant being granted, it is unnecessary to consider the three remaining and unaddressed grounds regarding the findings that (a) the Applicant did not continue membership of the BNP or Chatra Dal after he left college, (b) adverse action was not taken against the Applicant by Awami League activists, and (c) his brother was not relevantly threatened when he returned to Bangladesh in 2013/2014. This said, some of these matters, such as in relation to the Applicant’s membership of the BNP, may be affected by the inquiry [not] made] to the Applicant’s lawyer in Bangladesh. Nor is it necessary to determine or to make any comment on the Applicant’s contention at the hearing in this Court that he had tendered certain photographs at the hearing before the Tribunal but which are not referred to in the Tribunal’s reasons.
For the reasons given, there should be the following Orders:
(a)A writ of certiorari should issue to remove the Tribunal’s decision record into this Court and that decision be quashed;
(b)Pursuant to a writ of mandamus, the matter should be remitted to the Tribunal and for the matter to be heard and determined according to law;
(c)The First Respondent is to pay the Applicant’s costs as per Schedule 1 Part 3 of the Federal Circuit Court Rules 2001.
I certify that the preceding sixty-six (66) paragraphs are a true copy of the reasons for judgment of Judge Neville
Associate:
Date: 13th November 2017
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Procedural Fairness
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Jurisdiction
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Natural Justice
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Statutory Construction
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Proportionality