CLM19 v Minister for Immigration

[2020] FCCA 981

FEDERAL CIRCUIT COURT OF AUSTRALIA

CLM19 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 981

Catchwords:
MIGRATION – Application for Protection Visa – inconsistent evidence on the part of the Applicant – doubts as to credibility of applicant – whether delay of 20 months on the part of the Tribunal in the handing down of a decision was causative of an unfair hearing – factual context of hearing to be taken into account – no reasonable apprehension of bias – application dismissed.  

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 424AA , 499.

Cases cited:

CED15 v Minister for Immigration and Border Protection [2018] FCA 451.

Minister for Immigration and Multicultural and Indigenous Affairs v SGLB

(2004) 207 ALR 12.

Sellamathu v Minister for Immigration and Multicultural Affairs [1988] FCA

1423.

SZUXN v Minister for Immigration and Border Protection (2016) 69 AAR 210.

NAIS & Ors v Minister for Immigration and Multicultural and Indigenous

Affairs (2005) 228 CLR 470.

NADH of 2001 v Minister for Immigration, Multicultural and Indigenous Affairs

(2004) 214 ALR 264.

NADH of 2001 v Minister for Immigration, Multicultural and Indigenous Affairs

(2004) 214 ALR 264.

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611.

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

Applicant: CLM19

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 579 of 2019

Judgment of: Judge Egan

Hearing date: 27 April 2020

Date of Last Submission: 27 April 2020

Delivered at: Brisbane

Delivered on: 29 April 2020

REPRESENTATION

Counsel for the Applicant: Mr. Keane

Solicitors for the Applicant: DBL Solicitors

Solicitors for the First Respondents: Mr. Cummings of Sparke Helmore

Second Respondents: Submitting appearance save as to costs.

ORDERS

1. The Amended Application for Review filed on 25 September 2019 be dismissed.

2. The Applicant pay the First Respondent’s costs of and incidental to the application for review fixed in the amount of $5,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 579 of 2019

CLM19

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant is a citizen of Bangladesh who arrived in Australia as an unauthorised maritime arrival on 6 May 2013.

2. On 14 August 2013, the applicant applied for a Protection Visa (Class XA) (Subclass 866).

3. On 4 May 2015, a delegate of the Minister refused the application for the visa.

4. On 7 May 2015, the applicant applied for review of the decision of the delegate to the Refugee Review Tribunal (RRT).

5. On 26 April 2016, the RRT affirmed the decision of the delegate. The basis of affirmation was that the applicant had presented a bogus birth certificate as evidence of identity.

6. Orders were made by consent in the Federal Circuit Court of Australia on 10 October 2016 quashing the decision of the RRT. The basis for the making of orders quashing the decision was the RRT’s erroneous reliance upon inaccurate information obtained from the birth registration system in Bangladesh.

7. Upon remittal, a hearing took place before the Administrative Appeals Tribunal (‘the Tribunal’) on 4 October 2017. At that time, the applicant was represented by a solicitor and a barrister.

8. On 30 May 2019, the Tribunal affirmed the delegate’s decision.

9. On 24 June 2019, the applicant filed an Originating Application for review of the decision of the Tribunal. At the hearing before the Court, the applicant relied upon an Amended Application for review filed on 25 September 2019, the amended grounds of which were as follows:

   “Amended Grounds of application

   These grounds are made in substitution of the initial grounds of review

   1. The Tribunal Member committed jurisdictional error by ignoring relevant material and relying on irrelevant material by:

   a) considering that intra-party violence between AL Party factions was the most common form of violence but without identifying whether it was the most common form of politically motivated violence when the Applicant fled Bangladesh on 15 February 2013;

   b) relying on intra-party violence being the most common form of politically motivated violence when that was due only to ‘[AL’s] complete control over state institutions in recent times’ at 2 February 2018;

   c) ignoring that the 2014 national election was the most violent in Bangladesh’s history;

   d) considering that the Applicant’s partisan approach to the BNP by supporting them without regard to specific policies was indicative of his lack of standing or involvement in the BNP; and

   e) failing to accord any weight to the letter from the Kilcoy Pastoral Company as it reflected upon the Applicant’s credibility.

   2. The Tribunal Member committed jurisdictional error by failing to accord the Applicant procedural fairness.

   3. The Tribunal Member committed jurisdictional error by failing to accord the Applicant Natural Justice by reason, inter alia, of an apprehension of bias.

10. The applicant’s claims for protection were contained in his statutory declaration dated 1 August 2013 which was annexed to the application for the protection visa. The claims were relevantly set out in paragraph [26] of the reasons of the Tribunal as follows:

    “1. I am 25 years of age. I was born in the village of [Village A] in Bangladesh.

    2. My ethnicity is Bengali. My religion is Sunni Muslim. I am a citizen of Bangladesh and do not hold any citizenship or right to reside in any other country. My parents were both born in Bangladesh

    3. My mother is a widow and living in [Village A] in Bangladesh. My father died in November 2012 in a car accident. I have three brothers and three sisters. My eldest brother is married and living with his family. All my other siblings are living with my mother. I have never married and have no children or dependents.

    4. I attended primary school in my village in Bangladesh until the level of year five. I have not undertaken further formal studies since leaving high school.

    5. My father owned and ran a watch maker's shop in [Village A] together with my uncle, [name omitted]. This was our family business. When I finished school, I worked with my father in our shop and was taught the trade of watchmaking and repairing, just as my grandfather had taught this trade to my father.

    6. After my father passed away in November 2012, I took over the family watchmaking shop. Our shop is called [name omitted].

    7. I had never left Bangladesh to travel to any other countries, prior to embarking on this journey to Australia to seek asylum.

    The reasons I left Bangladesh

    8. Some of my family members and many of my friends are supporters of the Bangladesh Nationalist Party (BNP). My late father was a member of the BNP. BNP is one of the main opposition parties in Bangladesh.

    9. I am a member of the BNP. I support the BNP because of I agree with their platform of striving for peaceful non-violent resolution of disputes and I consider that business flourishes when the BNP is in power. I agree with the pro- development platform that the BNP promotes and their efforts to assist the poor and needy of Bangladesh.

    10. I occasionally attended local party meetings held by the BNP and participated in the political discussions. During election campaigns, I joined the political rallies to raise support for BNP and its candidates. During rallies, I carry the BNP banner. 1 assisted the election campaigns of BNP candidates with my friends by erecting posters and other political paraphernalia.

    11. The Awami League (AL) is currently the governing party and is opposed to the BNP. Members of the AL used to visit my shop every fortnight demanding

    12. protection money. Most of the shop keepers, who were BNP supporters were being extorted by the AL in this way. I had been paying 'protection' money to the AL since I took over the [name omitted] in November 2012. The AL used to also extort money from my father as well, when he ran the [name omitted] and I was aware that my father had several heated arguments with the AL over this extortion.

    13. The choice put to shop keepers such as myself was to either join the AL or pay 'protection money' or be harmed or killed. I objected strongly to paying the AL just to keep operating my shop. I am opposed politically to the AL and will not join them and also decided to refuse to pay them 'protection' money.

    14. I had made two previous payments since taking over. the shop. The first time, the AL demanded 11,000 Taka. The second time, the AL demanded 14,000. On 6 January 2013, third time, the AL came to my shop and demanded 20,000 Taka. I refused to pay them.

    15. That night, on 6 January 2013, I went to a restaurant to eat. I was confronted by four AL members and they proceeded to beat me with their fists. The AL thugs then went to their rickshaw to get a pole which they used to bash me over the nails with. I was also bashed over the arms and back with this pole. They told me that this beating was for refusing to pay them.

    16. My uncle, [name omitted], has joint ownership of the [name omitted] and he had reported the AL extortion to the police on 8 January 2013. The police refused to take the complaint from my uncle or get involved as it concerned the AL. The police will not assist the shop keepers that are being extorted because the AL is connected to the police and is the governing party.

    17. After the beating, I kept receiving threats from AL members. These people told me that if I want to live, I have to join the AL party and if I don't join the party, I have to either leave or be killed. These threats were made to me face- to-face by various members of the AL. I was confronted with these threats when I went to the bazaar, on the road, at restaurants, canteens, or wherever an AL member saw me in public. These threats continued for at least one month.

    18. I determined that the threats would keep coming and that it was only a matter of time before I would be beaten again or killed. I had learnt from my uncle that the police would not assist me. My only option was to flee Bangladesh for my safety.

    What I fear may happen to me if I return:

    19. I will be killed by members of the AL party who are incensed at my refusal to pay their extortion.

    20. The AL supporters already beat me once and have threatened to kill me if I do not join them or pay their extortion money.

    21. I believe that the AL have particularly targeted me because I am a very active BNP member and overtly opposed to their political movement.

    Who might harm me if I return:

    22. I fear that I will be killed or seriously beaten or harmed by the thugs who I am told are connected to the Awami League party and who consider that I am an opponent to their party as an active member of the BNP. The AL is also seeking to harm because I objected and protested against their extortion.

    Why I think that might happen to me if I return:

    23. The AL members that extorted my business and attacked me will harm or kill me because of my political support for the BNP and because I dared to refuse their extortion requests.

    24. I am not able to obtain any protection from the local authorities in Bangladesh as the police are corrupt and liked to the AL party.

    Do I think the authorities can protect me if I return?

    25. The authorities in Bangladesh are notoriously corrupt and not able to assist someone like me. My uncle tried to report the extortion by the AL to the police and the police refused to take his complaint or get involved. There is not protection for me in Bangladesh.

    Can I go anywhere else in my country apart from where I used to reside?

    26. There is nowhere in Bangladesh that I can go to find protection. The Awami League Party is in government at present and the can find me anywhere I go in Bangladesh.”

    [names omitted and pseudonyms added]

11. At [4] of its reasons, the Tribunal identified the issues in the matter as being whether the applicant had a well-founded fear of persecution in Bangladesh (s. 36(2)(a) of the Migration Act 1958 (Cth) (‘the Act’)), and if not, whether there were substantial grounds for believing, as a necessary and foreseeable consequence of him being removed from Australia to Bangladesh, that there was a real-risk that he would suffer significant harm as a result (s. 36(2)(aa) of the Act).

12. At [5] of its reasons, it was recorded that at the Tribunal hearing the applicant appeared with the assistance of an interpreter in the Bengali and English languages.

13. At [7] – [17] of its reasons, the Tribunal comprehensively set out the criteria relevant to the establishment of what constituted a well-founded fear of persecution so as to give rise to protection obligations on the part of the Commonwealth.

14. At [18] – [20] of its reasons, the Tribunal set out the criteria for complimentary protection.

15. At [21], the Tribunal noted that it was required to have regard to the guidelines as set out in PAM 3 pursuant to Ministerial Direction No. 56 made under s. 499 of the Act.

16. At [27] of its reasons, the Tribunal set out the submissions made by the applicant’s previous migration agent dated 15 April 2016 which Counsel for the applicant at the hearing relied upon.

17. At [29] – [35], the Tribunal noted that the applicant claimed that he had joined the Bangladesh National Party (BNP) in 2008 when he was seventeen (17) years of age. He stated that he was responsible for inviting people to rallies and that he was the leader of the youth wing in 2009. The applicant said that the BNP was better for business than the opposing Awami League (AL) government. When asked whether he was aware of any other policies of the BNP, the applicant said that the BNP supported faith in Allah, social welfare, the economy, democracy and nationalism. He was able to describe the BNP flag to the Tribunal and   briefly outline the history of the BNP including that it came to power in 1978.

18. As to issues of alleged extortion by the AL, the applicant said that all such incidents occurred after the death of his father. He said he did not approach the police for help until after he had been attacked for the third time. The applicant said that his uncle was an involved supporter of the BNP. He also said that after one attack in a restaurant his wife had been threatened by AL supporters.

19. At [49] of its reasons, the Tribunal recorded inconsistencies in the applicant’s evidence which gave rise to concerns about his credibility. Pursuant to the provisions of s. 424AA of the Act, the Tribunal recorded that it had put relevant matters to the applicant as follows:

    ·“The Tribunal referred the applicant to the delegate’s decision and compared his understanding of the policies and workings of the BNP at the time of the Departmental interview as recorded therein (at which time the applicant was vague and uncertain) until the time of the Tribunal’s hearing, when he appeared to have more grasp of the BNP policies. The Tribunal explained that it would have thought that the applicant’s understanding would have been greater at the time of the Departmental interview if he was a genuine supporter of the BNP, and if he had campaigned for the BNP as he claimed (see page 5 of the delegate’s decision which states that “the applicant said after the rallies he would give speeches urging people to vote for BNP”). The Tribunal put to the applicant that it seemed as if he had read up about the BNP in preparation for the hearing. The applicant responded that the delegate asked him no detailed questions regarding the topic. He said that all that he was asked was what party he was involved with. He said he was also asked what sort of tasks he undertook for the BNP.

    ·The Tribunal again referred the applicant to the delegate’s decision which sets out that in the Departmental interview the applicant omitted to mention the claimed extortion until prompted by the delegate, notwithstanding what was set out in his written claims. The Tribunal said that it would have expected that to be volunteered spontaneously given its importance to the applicant’s claim, and the number of times he was asked “about his reasons for leaving Bangladesh”. The applicant responded that he was only asked why he feared a return to Bangladesh. He said he was not asked about his business which is why he did not mention extortion until prompted.

    ·The Tribunal put to the applicant his inconsistencies regarding the report to the police of the assault. According to the delegate’s decision which recorded the Departmental interview, the applicant’s uncle reported the assault. At hearing on 4 October 2017 the applicant said first he reported, then that he and his uncle reported. The applicant responded that this was an error on the part of his previous lawyer and that he went because the police wanted to see the person who had been physically assaulted.

    ·The Tribunal raised with the applicant (as provided in the Departmental interview and contained within the delegate’s decision) the inconsistencies in the dates he provided regarding the extortion and extortion attempts by the AL. The applicant’s response was that he was stressed-out and nervous during the interview.

    ·The Tribunal asked the applicant how his uncle and family, who were on his evidence also supporters of the BNP, were remaining safe (and able to conduct their business). The applicant’s response was that he was more involved than his family members.

    ·The Tribunal asked the applicant why he had failed to mention that he held the position of leader of the youth wing until pressed by the Tribunal as to the precise nature of his role and/or title, and if he had one. Counsel for the applicant asked the Tribunal to ask what does the youth leader do and is the position a formal or informal one. The applicant’s response was that often the leaders were just referred to as leaders and not necessarily as youth leader or student leader.

    ·The Tribunal put to the applicant country information from the delegate’s decision, namely that it is normally BNP leaders and activists who are victims of arbitrary detention and torture. The applicant’s response was that political violence increased before and during elections, and that at the time of elections Minister (of parliament) and highly ranked people used to stay inside because of the fear of violence. He said it is the middle or lower ranking people who are targeted. He then said that the people likely to be subjected to violence would be high profile leaders or activists.”

20. At [50] – [72] of its reasons, the Tribunal considered in particular detail the extensive submissions made by Counsel on behalf of the applicant. Those submissions were consistent with the claims made by the applicant to the Tribunal.

21. At [74] – [85] inclusive of its reasons, the Tribunal set out its findings as follows:

    “[74] The Tribunal finds that the applicant is a 31-year-old man from Bangladesh.

    [75] The Tribunal accepts that the applicant worked in the family watch selling and repair business.

    [76] The Tribunal accepts that the applicant was a member and supporter of the BNP. In reaching that conclusion the Tribunal has placed no weight on whether or not the applicant spoke or pointed to a particular process by which he obtained membership of the BNP.

    [77] The Tribunal accepts that Bangladesh is and has been for many years prone to high levels of politically motivated violence, and that such violence tends to peak during periods of political unrest including elections. The Tribunal considers that intra-party violence between AL party factions to be the most common form of violence.

    [78] As to the applicant’s claims (and his representative’s submissions) regarding his level of involvement in the BNP, the Tribunal considers that the applicant has embellished his claims over the period during which his application for protection has been considered. The Tribunal’s views in that regard are strengthened by its general concerns regarding the applicant’s credibility as canvassed below.

    [79] In his statutory declaration setting out his claims the applicant stated:

    9. I am a member of the BNP. I support the BNP because of I agree with their platform of striving for peaceful non-violent resolution of disputes and I consider that business flourishes when the BNP is in power. I agree with the pro- development platform that the BNP promotes and their efforts to assist the poor and needy of Bangladesh.

    10. I occasionally attended local party meetings held by the BNP and participated in the political discussions. During election campaigns, I joined the political rallies to raise support for BNP and its candidates. During rallies, I carry the BNP banner. 1 assisted the election campaigns of BNP candidates with my friends by erecting posters and other political paraphernalia.

    [80] At the Departmental interview (at which the applicant was represented) the applicant added, after the natural justice break, during which he spoke to his representative, that “he always sat at the front row at the BNP meetings which consisted of 100 to 200 attendees. The applicant said that after the rallies he would give speeches urging people to vote for the BNP”.

    [81] Further details of the applicant’s Departmental interview as set out in the delegate’s decision include:

    At interview I endeavoured to establish the applicant's political profile. The applicant said he attended rallies/meetings, he gathered people for various occasions and he provided a leadership role within the BNP. Asked to elaborate about his leadership role, the applicant repeated himself saying during the elections, he gathered people and he put up posters for BNP. Asked why he decided to join the BNP, the applicant said the BNP are a "good peace loving party" who caters to business needs.

    Asked whether he was a registered member of the BNP, the applicant said he was a supporter of the BNP and he provided leadership for the party whilst gathering people to attend meetings. Asked to explain how he secured his membership with the BNP. The applicant simply said he became a member of the BNP by gathering people to attend BNP meetings and rallies. Asked how many rallies he attended. The applicant said he could not recall how many rallies he attended. Asked whether he held a high profile within the BNP or he was merely a grass roots supporter of the BNP. The applicant confirmed that he was a grass roots supporter the BNP.

    Asked whether he campaigned for the BNP, the applicant said he campaigned for the BNP between 2008/2009. I asked the applicant to explain the goals/objectives of the party during the election campaign. The applicant said the BNP election strategy was based on getting votes in order to get into power. I pointed out to the claimant that I would expect him to be able to provide detailed responses of the various strategies and policy platforms of the BNP during the election campaign considering his assertions of being in a leadership role. In response the applicant said he would go to people's homes and try to convince them BNP was the right party.

    Asked to explain BNP's political ideology, the applicant said BNP are concerned with the welfare of society and the development of the country. I rephrased the question when I asked the applicant if he could tell me the basic differences between AL and BNP. The applicant said the AL is interested in running the country and staying in power and BNP wants to do the same. Asked to elaborate on his response and provide details of policy platforms of both parties, the applicant said "BNP wants to strengthen the party and they want to stay in power and AL wants to deny BNP that opportunity to come to power."

    The applicant confirmed his father was a staunch supporter of the BNP when he was alive due to his business interests. The applicant said his other family members were also supporters of the BNP however they were not as active as he was within the BNP. I pointed out to the applicant he admitted he was a grass roots supporter, I did not understand why AL members would harass, intimidate and threaten to kill him based on his insignificant profile. In response the applicant repeated himself when he said he used to approach people and entice them to join BNP moreover he was involved with BNP rallies and meetings.

    [82] At hearing the applicant when asked, listed a number of BNP policies he had not been able to annunciate at the Departmental interview, notwithstanding his claims are he used to give speeches urging people to vote for the BNP. When asked about his role he said he was a leader and when pressed he was leader of the youth wing (and became such in 2009).

    [83] There were numerous submissions made about the applicant’s role in the BNP and what the Tribunal could and should find in that regard, including paragraphs 9, 10, 11 and 12 of the submissions dated 15 April 2016 (set out above at paragraph 27), and Mr Quinn’s submissions including such as that nothing turns on the applicant’s role with respect to his evidence of being a target. The Tribunal rejects those submissions. The Tribunal is of the view that the applicant’s role goes to his involvement in the BNP, which is central to his claim for protection.

    [84] With respect to Mr Quinn’s submissions set out in paragraph 27 above, the Tribunal considers that the questions asked by the delegate, as reflected in the delegate’s decision, and by the Tribunal were clear and unambiguous and afforded the applicant every opportunity to make his case.

    [85] The Tribunal finds that the applicant was a member and supporter of the BNP, but had no role or profile beyond that. Based on country information, and in that regard the Tribunal prefers the country information contained in the DFAT Country Information Report, the Tribunal does not consider there is a real chance that the applicant would face persecution should he return to Bangladesh because of his political opinions, whether actual or imputed.”

1. In arriving at its findings, the Tribunal had had regard to DFAT country information contained in a report on Bangladesh dated 2 February 2018. That country information recorded that Bangladesh was prone to high levels of politically motivated violence (PMV) which was regularly manifested by violence between different factions of the same party, supporters of rival parties and between party supporters and law enforcement agencies. It was recorded that the January 2014 national election had been the most violent in Bangladesh’s history, with months of violence culminating in hundreds of deaths and thousands of injuries across the country. It was said that in recent years the frequency and level of intra-party violence had far outweighed inter-party violence, particularly between competing AL factions. Such intra-party violence involving AL factions was documented in separate reports in 2015, 2016 and 2017. [1]

   [1]        Reports from Ain o Salish Kendra (ASK – a local NGO) – paragraph [73] – 3.59 – 3.62 of

2. It is clear that the Tribunal considered at length the evidence before it. It was not satisfied that the applicant was telling the whole truth about the nature and extent of his early involvement as a young man with the BNP. The fact that the applicant was vague and unsure when describing his BNP involvement at the departmental interview stage of his visa application process was legitimately viewed by the Tribunal as indicating embellishment. It was noted that the applicant was far clearer in his later evidence to the Tribunal.

3. A tribunal is entitled to form an adverse view as to an applicant’s credibility based upon the late disclosure of information which, if true, one would have expected to have been disclosed, as a fundamental basis for a claim for protection, at an earlier point in time. The conclusions reached by the Tribunal were open on the evidence before it. As Thawley J said at [21] - [24] in CED15 v Minister for Immigration and Border Protection [2018] FCA 451:

   “[21] In his written submissions, the appellant was more specific.  The complaint centred on paragraphs [69] and [70] of the Tribunal’s reasons, which provided:

   69. The applicant has consistently claimed that a Tamil family of four in his neighbourhood was killed and has provided a TamilNet news article referring to the murders, which took place in November 2008. The tribunal accepts that a family in the applicant’s neighbourhood was murdered at that time, along with Tamils in other villages.

   70. However, in his evidence to the department, the applicant merely claimed that the family were his neighbours and acquaintances. At the hearing the applicant claimed for the first time that the head of the family, Vinayakamoorthy, was his cousin. He claimed that he had previously mentioned this while he was “at the camp” however this significant detail is not mentioned in either his written statement or in the decision record summary of his evidence at departmental interview. The tribunal does not accept that, if this was true, the applicant would have failed to mention a familial relationship with the deceased Tamil family in either his written statement or at his departmental interview. Given the concerns the tribunal holds about the applicant’s credibility and his failure to mention his relationship with the Tamil family at key times during the processing of his application, the tribunal does not accept that the applicant previously mentioned that Vinayakamoorthy was his cousin while he was “at the camp”.

   [22] The appellant submitted that the “later” evidence, given for the first time to the Tribunal, that the man killed by the army in 2008 was the appellant’s cousin was a detail of less importance than the horrific murder of the family and the appellant’s fear of the army because of his being a witness.

   [23] It is not demonstrated that the Tribunal committed any jurisdictional error in reaching its conclusions in paragraphs [69] to [70].  The conclusions which the Tribunal reached were open on the evidence before it.  Specifically, it was open to the Tribunal to conclude that the appellant would have mentioned earlier than he did that the head of the deceased family was his cousin if it were true.  Reasoning which takes into account the time at which claims were, or were not, made is entirely orthodox. 

   [24] The fact that a different decision-maker may have reached a different conclusion on the evidence which was before it is not of itself a basis for concluding that there was jurisdictional error: DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2 at [30].”

4. At [86] – [90], the Tribunal set out the latitude which is often afforded to applicants for protection visas in terms of the assessment by a decision-maker as to their credibility. The Tribunal quoted the judgment of Kirby J in Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 where His Honour said at [7]:

   “[7]. There is no necessary correlation between inconsistency and credibility in such cases. Many factors may explain why applicants present with the appearance of poor credibility. These include: mistrust of authority; defects in perception and memory; cultural differences; the effects of fear; the effects of physical and psychological trauma; communication and translation deficiencies; poor experience elsewhere with governmental officials; and a belief that the interests of the applicants or their children may be advanced by saying what they believe officials want to hear77. The Tribunal must be firmly told – if necessary by this Court – that the process is one for arriving at the best possible understanding of the facts in an inherently imperfect environment. It is not to punish or disadvantage vulnerable people because they have made false or inconsistent statements, or are believed to have done so.”

5. The Tribunal further referred to Sellamathu v Minister for Immigration and Multicultural Affairs [1988] FCA 1423 at page 12 per Hely J where it was said:

   “In my opinion, one could not rationally reject the applicant's claim to refugee status on the basis of a discrepancy such as this.  I was troubled as to whether the fact that RRT referred to this incident at all (p 23), and appeared to treat it as material, indicated that the RRT had lost sight of the ball, causing it to conclude that the applicant did not have a well-founded fear of persecution for a Convention reason simply because of "vagueness or inconsistencies in recounting peripheral details" or an inability to give a precisely accurate or consistent account of some past event.”

6. At [91] of its reasons, the Tribunal found that the applicant’s omission from his original claims of assertions that he held a leadership position in the BNP was not an example of “vagueness or inconsistency in recounting peripheral details.” The Tribunal did not accept what was said as being a very fine interpretation of nuanced phrases of the English language, as submitted by the applicant’s Counsel.

7. At [92] of its reasons, the Tribunal did not accept, after having weighed up all of the evidence before it, that the applicant was extorted by the AL. The Tribunal pointed to an inconsistency in the applicant’s evidence on point – namely that in his statutory declaration attached to his protection visa application the applicant had stated that the AL used to extort money from the applicant’s father, whereas at the hearing before the Tribunal on 4 October 2017, the applicant had said his father had never paid any extortion money. The Tribunal conceded that when arriving at such finding it had placed no weight upon the applicant’s vulnerability when remembering the precise dates on which he had claimed he had been asked for money. The Tribunal found, in any event, that the applicant had a profile other than as a BNP party member, having no particular role warranting his being of interest to the authorities.

8. The Tribunal noted that only at the Tribunal hearing had the applicant asserted that he had gone to hospital to receive medical treatment after an alleged assault by AL members. The Tribunal also noted that there were inconsistencies in the evidence given by the applicant in his statutory declaration, as compared with his departmental interview, concerning the frequency with which AL followers had allegedly visited his shop. The Tribunal noted that the applicant had conceded that his statutory declaration was not as clear as it should have been in a number of respects, not the least in respect of the alleged reporting of alleged extortion to the police. [2] Further, the Tribunal noted that the applicant had said, both in his statutory declaration, and at the time of the departmental interview, that any communication with the police had been made by his uncle, whereas at the Tribunal hearing, he stated that he had personally attended at the police station.

   [2]        [93] – [96] inclusive of Tribunal reasons.

9. The Tribunal also did not accept that the applicant had been threatened with assassination if he refused to join the AL. Accordingly, the Tribunal did not accept that such claim amounted to a claim to be assessed under the complimentary protection criteria. The Tribunal found that discrepancies and contradictions in the applicant’s evidence were in relation to significant issues about which one would have expected the applicant’s evidence to be clear. [3]

   [3]        [97] – [100] inclusive of Tribunal reasons.

10. The Tribunal made similar findings, based upon similar considerations, when responding to the applicant’s written submissions of 15 April 2016 and oral submissions made at the time of the Tribunal hearing on 4 October 2017. [4]

Grounds of Amended Application

[4]        [101] of Tribunal reasons.

Ground 1.

1. Ground 1 of the Amended Application for review asserts jurisdictional error on the part of the Tribunal on the basis that it failed to have regard to relevant considerations, and that it otherwise relied on irrelevant considerations.

2. The country information relied upon by the Tribunal relating to PMV, spanning as it did the period from January 2014 – 2017, was referred to by the Tribunal, in the context of the prevalence of such violence in Bangladesh, particularly leading up to, and during the holding of, elections. The Tribunal was entitled to highlight the fact that DFAT had recorded that “in recent years” the frequency and level of intra-party violence had far outweighed that of inter-party violence. The Tribunal was able to assess whether there was a real chance of persecution if the applicant returned to Bangladesh by reference to the most recent and up to date evaluation of the prevailing circumstances by DFAT. It was also entitled to have regard to DFAT’s assessment as to between whom the violence in Bangladesh was likely to involve.

3. The Tribunal was entitled to find that violence between AL party factions was the most common form of violence during that period because that’s what the country information compiled by DFAT recorded. Based upon such country information, it was less likely that a BNP supporter would suffer harm due to such PMV rather than an active member of an AL faction. That was a relevant consideration when assessing the applicant’s claims. The finding of the Tribunal was made against the evidentiary framework of the function being undertaken by it.

4. In SZUXN v Minister for Immigration and Border Protection (2016) 69 AAR 210, when discussing whether jurisdictional error had been demonstrated where some factual findings had been made which were said to be either irrational or illogical, Wigney J, at [52] and [55], said:

   “[52] As Robertson J put it in Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at [148], for a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality or rationality must be shown, “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions”. And as McKerracher J (with whom Reeves J agreed) emphasised in SZOOR v Minister for Immigration and Citizenship (2012) 202 FCR 1 (at [84]), a decision cannot be said by a reviewing court to be illogical, irrational or unreasonable simply because one conclusion has been preferred to another possible conclusion.

   …

   [55] Nevertheless, allegations of illogical or irrational reasoning or findings of fact must be considered against the framework of the inquiry being whether or not there has been jurisdictional error on the part of the Tribunal:  SZRKT at 137 [148]. The overarching question is whether the Tribunal’s decision was affected by jurisdictional error: SZRKT at 137-138 [151]. Even if an aspect of reasoning, or a particular factual finding, is shown to be irrational or illogical, jurisdictional error will generally not be established if that reasoning or finding of fact was immaterial, or not critical to, the ultimate conclusion or end result: Minister for Immigration and Citizenship v SZOCT (2010) 189 FCR 577 at 598-599 [83]-[84] (Nicholas J); SZNKO v Minister for Immigration and Citizenship [2013] FCA 123 at [113]. Where the impugned finding is but one of a number of findings that independently may have led to the Tribunal’s ultimate conclusion, jurisdictional error will generally not be made out: SZRLQ v Minister for Immigration and Citizenship (2013) 135 ALD 276 at 291 [66]; SZWCO at [64]-[67].”

   Grounds 1(a) and (b) are without merit.

5. The Tribunal specifically quoted contents of the DFAT country information report of 2 February 2018 relating to Bangladesh. Part of that report noted that the January 2014 national elections were the most violent in Bangladesh’s history. It must be taken that the Tribunal had regard to, and considered, such information. Ground 1(c), accordingly, is without merit.

6. As to Ground 1(d), the Tribunal was entitled to find, consistently with the judgment of Thawley J in CED15, that an applicant who had been closely involved in relevant events, claimed by them to give rise to protection obligations, would be easily able to readily recall and pass on specific details about such events. The lack of an ability to do so, or the giving of evidence which was vague, contradictory or which had discrepancies in it, legitimately enabled the Tribunal to draw a conclusion that the applicant’s involvement in the BNP was so low level, and so lacking in profile, so as to not give rise to his having come to the attention of the authorities in any significant respect. There is no merit to Ground 1(d).

7. As to Ground 1(e), the Tribunal was entitled to find that it was not prepared to place other than little weight upon the letter from Kilcoy Pastoral Company dated 6 January 2015 [5] when assessing the applicant’s credibility. The contents of the letter simply referred to the fact that the applicant was one of 750 employees who were employed by the company. The fact that the letter conveyed that the company was supportive of his application for the visa was irrelevant to the considerations at hand. There is nothing in the letter which could realistically have caused the Tribunal to have changed its decision concerning its findings about the applicant’s credibility. Ground 1(e) is without merit.

   [5]        Court Book (CB) p. 73.

Ground 2.

1. This ground was an assertion that the delay of almost twenty (20) months in the handing down of a decision by the Tribunal justified a finding of jurisdictional error. As was evidenced during the course of the hearing before this Court, there was a full transcript of the proceedings before the Tribunal. [6] That transcript was obtained pursuant to an order of this Court made on 13 January 2020. It was obviously made from an audio recording. There is nothing to suggest that the member of the Tribunal did not have regard to the contents of any such audio recording or transcript before the decision of the Tribunal was handed down. In that event, no possible prejudice to the applicant could be established.

   [6]        Affidavit of Mr. Lillicrap filed on 3 February 2020.

2. Further, the concerns on the part of the Tribunal concerning the applicant’s credibility related to contradictions and discrepancies between the evidence given by the applicant before the Tribunal – recorded as it was – and earlier written statements of the applicant, likewise recorded. It was not a case where the Tribunal had to recall aspects of the applicant’s oral evidence which went to evasiveness, time of answer, bodily movements and demeanour. Also, the nature of the evidence before the Tribunal was not so complex as to disentitle reliance by the Tribunal upon a transcript, an audio recording, and the Tribunal member’s memory for the purpose of being able to properly consider questions of credibility. This Court does not consider that the delay in handing down the Tribunal’s decision, lengthy though it was, resulted in an unfair hearing giving rise to jurisdictional error.

3. It has not been demonstrated that the delay has been causative of any error on the part of the Tribunal. As was said by Gleeson CJ in NAIS & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 470 at [5]:

   “5. Undue delay in decision-making, whether by courts or administrative bodies, is always to be deplored. However, that comfortable generalisation does little to advance the task of legal analysis when it becomes necessary to examine the consequences of delay. The circumstances in which delay, of itself, will vitiate proceedings, or a decision, are rare. Of course, statutes of limitation impose a legislative direction that certain delays will bar proceedings; and analogous consequences may flow from the application of equitable principles. There is, however, nothing in the Act that prescribes a time limit for decisions of the Tribunal, and this Court has no power to determine some such limit2. A court may have power to relieve against oppressive conduct of a complainant, or a prosecutor, and delay may be a factor in the oppression. In such circumstances, the ground for relief is the oppression, not the delay. A court of appeal, reviewing a decision of a primary judge, may conclude that delay in giving judgment has contributed to error, or made a decision unsafe. Again, the ground of appellate intervention is the error, or the infirmity of the decision, not the delay itself. Where delay gives rise to a ground of supervisory or appellate intervention, the remedy must be tailored to the circumstances and justice of the case. In adversarial litigation, for example, neither party may be at fault, and it may be unnecessary and unjust to visit the successful party with all the consequences that flow from having to start again. Remedies available where delay has caused problems may be discretionary. (In the present case, counsel for the first respondent disclaimed any reliance upon a discretionary argument.) In some cases, mandamus may be an available remedy for dilatory behaviour, and failure to seek mandamus could constitute a discretionary reason to deny later relief.”

   [footnotes omitted]

   There is no merit to Ground 2 of the Amended Application for review.

Ground 3.

1. This ground raises a claim of apprehended bias on the part of the Tribunal member. That claim arises out of one paragraph spoken by the Tribunal member during the course of the evidence of the applicant before the Tribunal. That paragraph was as follows: [7]

   [7]        Page 24.17 - 30 of Exhibit MGL-1 to Affidavit of Mr Lillicrap filed on 3 February 2020.

   “INTERPRETER: I wish to request for the protection from this country, because I fear for my life. I cannot go back to my country of origin.

   MEMBER: Okay, I understand that that’s what you claim. My concerns are not dissimilar from (indistinct) in terms of your credibility. You knew very little about the BNP when you were asked in the Departmental interview and you were very vague. I’ve listened to the Departmental interview. It looks to me like you’ve read up on it a little bit since then. The delegate also asked you quite persistently about your involvement and you never mentioned anything about being a leader of the youth wing and I might say that’s not mentioned in your statutory declaration that was attached to your claim.”

   
   
   

   (emphasis added)

1. The Court does not consider that such utterance by the Tribunal member, as unhelpful as it was, gave rise to any reasonable apprehension of bias in the mind of a reasonable person. The Court accepts the submission made on behalf of the first respondent that the Tribunal member was there clumsily pointing out an inconsistency between the lack of detail in answers given by the applicant during the course of his departmental interview – an interview which the Tribunal recorded had been listened to by the Tribunal member – and the later more specific evidence given by the applicant at the time of the Tribunal hearing.

2. At transcript page 25 lines 40 – 45, the Tribunal member made clear that she was putting to the applicant those matters which could constitute the reason, or part of the reason, for the Tribunal affirming the decision under review. She was obliged to do that pursuant to the provisions of s.424AA(1) of the Act. The statement of the Tribunal member at transcript page 24 was merely a forerunner to the performance of that statutory duty. The Tribunal member made clear that the fact that she was going to put such matters to the applicant did not mean that their mind had been made up. The relevant paragraph at T. 25 was as follows:

   “MEMBER: Okay, but you told the delegate one thing and you’ve told me something different. That leaves me a bit concerned about your credibility. Do you understand what I’m saying? Okay, so I am going to put some information to you about your (indistinct) to your comments or response being the reason, or a part of the reason, for affirming the decision under review, to refuse to grant the visa. That doesn’t mean I’ve made up my mind. I’ll explain the information and its relevance and ask you if you wish to comment on it or respond. You’re entitled to seek additional time to comment or respond. If you wish to seek additional time, you should let me know and I will consider your request.

   So, basically what I’m going to be doing is putting to you, information I’ve just discussed with you from the delegate’s decision, because a copy of the delegate’s decision, I don’t think was put before the tribunal. Is that correct?

   (emphasis added)

3. The Tribunal member had also earlier clearly set out the Tribunal’s role when conducting the hearing as follows: [8]

   “It’s a full merits review and I will be looking at the evidence fresh. However, I’m bound by the same legislation as that that bind the department. I do not have any discretion the department did not have, I can’t change the law, but I can make sure that everything is taken into account and that nothing has been overlooked.”

   [8]        Transcript page 5.1 – 5.5

4. It has been found that the robust and forthright testing of claims and evidence does not justify a finding of apprehended bias. As was said in NADH of 2001 v Minister for Immigration, Multicultural and Indigenous Affairs (2004) 214 ALR 264 at [19]:

   “[19] Third, the place of a decision-maker such as the tribunal here should be recognised as different from a judge in open court: Jia at CLR 563–4; ALR 465; Laws at 70–1; ALR 435–6; Ebner at CLR 343–4; ALR 646–7. The tribunal does not administer public justice. The elements which affect the public confidence in the adjudication of disputes by an independent and impartial arm of government (in the broad sense) and which may be seen to inform what might be said to be freestanding norms of conduct and behaviour by judges conducting public hearings are not necessarily as easily transposable as strict obligations of administrative decision-makers acting in private. The tribunal here must investigate the facts for itself unaided by counsel presenting the parties’ cases, to the degree and extent it thinks appropriate. The tribunal which has to reach a state of satisfaction may want to test and probe a recounted history. It may have particular matters troubling it for resolution, which require questioning and expressions of doubt which are entirely appropriate, but which if undertaken or said by a judge in open court in adversary litigation might give rise to an apprehension of a lack of impartiality.”

5. Counsel for the applicant, Mr Keane, also submitted that there might have been a denial of natural justice by reason of some vagaries in translation during the course of the hearing before the Tribunal. There is no force to such submission. The only occasion on which any possible misunderstanding between the interpreter and the applicant was raised was when the applicant stated that he would like the interpreter “to speak a little bit more loudly.” [9] There followed only one reference to dialect being a problem. [10] However, the Tribunal made it clear to the applicant that if he didn’t thereafter understand anything the interpreter had said to him, he was to raise his hand. It was said that if any problems occurred, then the hearing of the matter would be adjourned, and the services of another interpreter would be obtained. [11] Mr Keane acknowledged that nowhere in the transcript after that exchange was it recorded that the applicant had so raised his hand.

   [9]        Transcript p. 3.40.

   [10]      Transcript p. 4.1

   [11]      T. p. 4.22 – 41.

6. There is no merit to Ground 3 of the Amended Application for review.

7. It cannot be said that no other rational or logical decision maker could not have made the same decision. As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130] and [135]:

   “[130] In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence.  In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.

   …

   [135] On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent’s claims. There was. The Tribunal did not believe the first respondent’s claim that he had engaged in the “practice of homosexuality” in the UAE and accordingly it was not satisfied that he feared persecution if he returned to Pakistan.”

8. Neither could the decision be considered as legally unreasonable, or one lacking an evident and intelligible justification, as such respective concepts were considered by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76] where it was said:

   “[66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion.  That area resides within the bounds of legal reasonableness.  The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power.  Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker.  Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.

   …

   [76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust".  The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power.  Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at.  Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”

9. The applicant has failed to establish jurisdictional error on the part of the Tribunal.

10. The amended application for review is without merit and is dismissed.

11. The Court will hear the parties as to costs.

I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Judge Egan

Associate:

Date: 29 April 2020

         DFAT report.