CLZ19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 482
•15 March 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
CLZ19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 482
File number(s): SYG 1559 of 2019 Judgment of: JUDGE DRIVER Date of judgment: 15 March 2021 Catchwords: MIGRATION – Review of Administration Appeals Tribunal decision – refusal of a protection visa – applicant claiming a fear of harm in Bangladesh – applicant not believed – whether the Tribunal applied the correct test for complementary protection or proceeded unfairly considered – no jurisdictional error. Legislation: Migration Act 1958 (Cth), ss 36, 424A, 425 Cases cited: CBN17 v Minister for Immigration and Border Protection [2018] FCA 788
Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505
SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609
SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774
Number of paragraphs: 48 Date of hearing: 15 March 2021 Place: Sydney Applicant appeared in person Solicitors for the Respondents: Mr K Sypott of Australian Government Solicitor ORDERS
SYG 1559 of 2019 BETWEEN: CLZ19
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE DRIVER
DATE OF ORDER:
15 MARCH 2019
THE COURT ORDERS THAT:
1.The application filed on 25 June 2019 is dismissed.
2.The applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,400.
REASONS FOR JUDGMENT
(revised from transcript)JUDGE DRIVER:
The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). The decision was made on 29 May 2019. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa. Background facts relating to this matter are conveniently set out in the Minister’s outline of submissions.
The applicant is a 36 year old national of Bangladesh.[1]
[1] Relevant Documents (RD) 37
On 11 February 2015, the applicant entered Australia on a visitor visa. On 25 February 2015 he applied for the protection visa.[2]
[2] RD 1-79
On 3 August 2015, the applicant was invited to attend an interview on 27 August 2015.[3] The delegate’s decision records that the applicant did not attend this interview and failed to provide an explanation for his non-attendance.[4]
[3] RD 90-93
[4] RD 104
On 27 August 2015, the delegate refused the visa.[5]
[5] RD 103-108
On 11 September 2015 the applicant applied to the Tribunal for review of the delegate’s decision.[6]
[6] RD 121-129
On 3 May 2018 the applicant attended a hearing at the Tribunal, assisted by a Bengali interpreter and represented by his migration agent, Mr Abu Siddique. At the hearing, the applicant told the Tribunal that he suffered from memory loss. The Tribunal adjourned the hearing to 18 June 2018 to give the applicant an opportunity to provide any medical reports he wished the Tribunal to consider when assessing his evidence.[7]
[7] RD 209-210 [27]-[33]
On 13 June 2018, the applicant provided further documents[8] including a medical report from Dr Dowla dated 7 May 2018, which diagnosed the applicant with “mild depression and cognitive impairment”. [9]
[8] RD 172-194
[9] RD 179
On 18 June 2018 the Tribunal hearing resumed. During each hearing, the applicant provided the Tribunal with photographs showing his involvement with demonstrations and processions organised by the Australian chapter of the BNP.[10]
[10] RD 163-167; 193-194
On 29 May 2019 the Tribunal affirmed the delegate’s decision to refuse to grant the applicant the visa.[11]
[11] RD 206-218
Protection claims
The applicant’s protection claims in his visa application were in summary that:
(a)he was a supporter and member of the Bangladesh Nationalist Party (BNP) in his local area;[12]
(b)during the 2008 elections, he was in charge of collecting donations for the election fund and he became very popular among the BNP in his area;[13]
(c)the applicant became a target of local Awami League Party (AL) members because of his activity in the 2008 election.[14] During the election in 2008 he was beaten by AL;[15]
(d)in 2010, the applicant started a business and he stated that it was clear that no one can run a business unless they pay money to local authorities guided by AL. The applicant paid more than 50,000 taka every year to the police and AL gangs;[16]
(e)in October 2014, one of the leaders of the AL came to his place of business and demanded money, threatening to abduct and kill the applicant if the money was not paid. He feared that he would be killed by local AL motivated gangs;[17]
(f)the applicant had previously gone to the local police complaining about threats and demands for money, but his complaints were not accepted and instead he was told to join AL;[18]
(g)in the last 30 years, he had travelled to Italy between June 2012 and November 2012 for “work agriculture”, and to India in October 2014 for a “visit”.[19]
[12] RD 31
[13] RD 31
[14] RD 31
[15] RD 32
[16] RD31
[17] RD 31-32
[18] RD 32
[19] RD 25
In support of his application, the applicant provided a letter dated 5 May 2015 from the president and secretary of the BNP certifying that he had supported the BNP for a long time and attended meetings and gatherings regularly.[20]
[20] RD 88
The delegate rejected his claims in their entirety, noting that the applicant’s failure to attend the interview meant the delegate was “unable to be satisfied that the claimed fear of persecution in Bangladesh is well-founded”.[21]
[21] RD 107
In advance of the Tribunal hearing, the applicant’s representative provided a submission in which he reiterated his claims and provided country information about the prevalence of political violence.[22]
[22] see RD 146-149
At the Tribunal hearing, the applicant gave further evidence about his claims.[23]
[23] see summary of evidence in decision record at RD 209 [25] and RD 211-215 [39]-[66]
Tribunal decision
The Tribunal affirmed the decision not to grant the visa on 29 May 2019.[24]
[24] RD 206-218
The Tribunal found that the applicant was not a credible witness on the basis of numerous inconsistencies between his written visa application and his oral evidence at the Tribunal hearing.[25] The Tribunal found that the applicant had provided inconsistent evidence about:
(a)attendances at the applicant’s business by AL members;[26]
(b)dealings with the police;[27]
(c)incidents of physical harm and length of hospitalisation;[28]
(d)his living arrangements in Bangladesh;[29]
(e)reasons for travel to Italy (2012) and India (2014);[30]
(f)his role in the BNP in Bangladesh;[31] and
(g)evidence about his memory problems.[32]
[25] at [69]
[26] [70]
[27] [71]
[28] [72]
[29] [73]
[30] [74]
[31] [75]
[32] [76]
The Tribunal was not satisfied that the applicant has memory loss. The Tribunal gave no weight to Dr Dowla’s report dated 7 May 2018, noting that it was obtained subsequent to the first Tribunal hearing on 3 May 2018 and appeared to be based partly on self-reporting by the applicant.[33]
[33] at [78]
The Tribunal did not accept that the applicant had been harmed at any time in Bangladesh as he claimed. It noted numerous inconsistencies in the applicant’s evidence and was satisfied that the applicant had fabricated his claims for protection.[34]
[34] at [80]
The Tribunal did not accept that the applicant was genuinely fearful of returning to Bangladesh given he travelled out of Bangladesh on two occasions and voluntarily returned to Bangladesh and did not use two visas that allowed him to travel to India and Nepal.[35]
[35] at [81]
The Tribunal found the applicant’s evidence regarding symbols and songs used by the BNP to be vague and shallow and was not persuaded of the applicant’s genuine interest or commitment to the BNP.[36] The Tribunal also found that the applicant gave unreliable evidence about membership of the party in Bangladesh.[37]
[36] at [82]
[37] [84]
Given the Tribunal’s concerns with the applicant’s inconsistent and unreliable evidence, the Tribunal gave no weight to the letter from the BNP secretary and president dated 5 May 2015 and the photographs provided by the applicant at the Tribunal hearings.[38]
[38] at [84]
Although the applicant had not raised a claim for protection on the basis of his involvement with the BNP in Australia, the Tribunal considered whether this presented a risk of harm. The Tribunal was not satisfied that his attendance at three events in Australia would place the applicant in any danger if he were returned to Bangladesh.[39] The Tribunal was satisfied that his attendance at these three events was solely to lend credibility to his claim to be a BNP supporter, and was not satisfied that the applicant would continue to be involved with BNP if he returned to Bangladesh.[40]
[39] [85]
[40] [85]
The Tribunal rejected almost all of the applicant’s claims for protection and was satisfied that the applicant’s claims were fabricated as a means of remaining in Australia.[41] The Tribunal was overall not satisfied that there is a real chance of serious harm for the applicant in Bangladesh under s 36(2)(a) of the Migration Act 1958 (Cth) (Migration Act).[42]
[41] [86]-[87]
[42] [88]
Noting that it had made adverse credibility findings against the applicant, and for the same reasons, the Tribunal was also not satisfied there is a real risk of significant harm under s 36(2)(aa) of the Migration Act.[43]
[43] [90]
THE CURRENT PROCEEDINGS
These proceedings began with a show cause application filed on 25 June 2019. It was professionally prepared by the lawyers then representing the applicant, and he continues to rely upon it.
The grounds in it are:
Ground One:
The Immigration Assessment Authority has failed to apply the correct test pursuant to Section 36(2)(aa) of the Migration Act 1958 (Cth).
Particulars:
In dealing with the Applicant's claims under Section 36(2)(aa) of the Migration Act, the Administrative Appeals Tribunal explicitly failed to disaggregate the statutory formulae under Section 36(2)(aa) of the Act.
Ground Two:
The AAT denied procedural fairness to the applicant.
The application was accompanied by a short affidavit by the applicant filed with it that annexes the Tribunal decision. I received the affidavit.
Procedural orders were made by Judge Barnes on 30 July 2019. Her Honour made orders for the filing of additional material, and listed the matter for a final hearing today before me. The Minister filed a book of relevant documents on 14 August 2019. The applicant denied receipt of the court book. That is plausible, as it probably would have been sent to his former lawyers. His solicitors withdrew from the record by a notice filed on 24 December 2020. I provided the applicant with a copy of the book of relevant documents and explain its contents to him. Once the contents were explained, he had no objection to me receiving the book as evidence. I did receive it.
The applicant filed a second affidavit on 23 February 2021. The affidavit annexes a number of documents. In part, these are documents relating to his medical condition, and in part they are documents relating to his asserted political activities. The Minister opposed my receipt of the affidavit and annexures into evidence. That is because the documents post-date the Tribunal decision, and hence could not have been considered by the Tribunal.
The applicant referred to problems in Bangladesh and submitted that the documents supported or demonstrated those problems. I explained to the applicant that the documents did not assist me in assessing the validity of the Tribunal decision. I declined to receive the affidavit and annexures, but marked the bundle for identification.[44]
[44] MFI “A1”
I invited oral submissions from the applicant this morning. He told me that he would face serious problems on return to Bangladesh. He also told me that he suffers from depression. He was concerned that he was not able to provide specialist medical opinion to the Tribunal.
The Minister submits that the Tribunal decision is free from error. I agree. As I pointed out to the applicant, he was provided with a fair hearing opportunity under s 425 of the Migration Act. It is plain that the adverse credibility conclusions made by the Tribunal were open to it on the material before it.
The applicant was on notice of those concerns, if not from the delegate’s decision, then at the first hearing conducted by the Tribunal. The applicant asserted memory loss, and the Tribunal adjourned the review to enable him to obtain supportive medical evidence. When the Tribunal conducted a second hearing, it did not find the medical evidence proffered persuasive.
The proposition that the Tribunal applied the wrong test in assessing the applicant’s claims for protection has no substance. The Tribunal set out the relevant test at [23] of its reasons.[45] The Tribunal was entitled to apply its factual findings both to its refugee assessment, and also its complementary protection assessment.
[45] RD 209
I otherwise agree with and adopt the Minister’s submissions concerning the grounds for review advanced.
Ground One
Ground One complains that the Tribunal failed to apply the correct test pursuant to s 36(2)(aa) of the Migration Act by “failing to disaggregate the statutory formulae under Section 36(2)(aa) of the Act”.
The ground is misconceived. The Tribunal correctly set out the relevant law.[46]
[46] see the summary of s 36(2)(aa) at RD 209 [23] and the definition of significant harm in s 36(2A) at RD 223
The Tribunal’s approach to the assessment of the complementary protection criterion in s 36(2)(aa) discloses no error.
The Tribunal rejected almost the entirety of the applicant’s claims as not credible under the refugee criterion in s 36(2)(a). The Tribunal then considered whether the applicant satisfied s 36(2)(aa).[47] On the basis of the same adverse credibility findings, the Tribunal was also not satisfied that there were substantial grounds for believing that there was a real risk that the applicant would suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Bangladesh.[48]
[47] RD 219 [89]
[48] RD 219 [90]
The Tribunal’s rejection of the appellant’s complementary protection claims was open to it. The “real risk” test in s 36(2)(aa) is the same as the “real chance” test provided for under the refugee criteria (s 36(2)(a)).[49] The Tribunal was entitled to adopt its factual findings in relation to the refugee criterion for its assessment of the complementary protection criterion, given the essential claims about his fear of harm from the AL were identical.[50]
[49] see eg Minister for Immigration & Citizenship v SZQRB (2013) 210 FCR 505 at [246]
[50] CBN17 v Minister for Immigration and Border Protection [2018] FCA 788 at [31]; SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774 at [55]-[56]
There is no basis in the Tribunal’s reasons to conclude that the Tribunal failed to apply the correct test under s 36(2)(aa). Even if the Tribunal had done so, any error would not be material. The Tribunal had rejected all of the applicant’s claims at a factual level. As such, there was no factual basis upon which the Tribunal might have been satisfied as to the criteria in s 36(2)(aa). No different decision could have resulted.
Ground Two
Ground Two alleges that the Tribunal “denied procedural fairness to the applicant”. No particulars are provided.
The Tribunal complied with its procedural fairness obligations under Part 7 of the Migration Act. In particular:
(a)the Tribunal invited the applicant to a hearing in accordance with s 425 and pursuant to a valid invitation;[51]
(b)on 3 May 2018, the applicant appeared before the Tribunal to give evidence and present arguments. He was represented by his migration agent and assisted by an interpreter.[52] The Tribunal adjourned the hearing to allow the applicant to obtain medical evidence regarding his claimed memory problems;[53]
(c)on 13 June 2018, the applicant submitted further documents including medical evidence, which the Tribunal considered;
(d)on 18 June 2018, the applicant appeared again before the Tribunal with his migration agent and was assisted by an interpreter;[54]
(e)the Tribunal explained to the applicant that if he was unable to remember details or answer the Tribunal’s questions, the Tribunal could consider this to impact adversely on his credibility;[55]
(f)the Tribunal noted various inconsistencies in the applicant’s evidence and raised these with him.[56] ‘Information’ for the purposes of s 424A of the Migration Act does not include the “existence of doubts, inconsistencies or the absence of evidence”.[57]
[51] Section 425A of the Migration Act: RD 153-154
[52] RD 160
[53] RD 161
[54] RD 195
[55] [31]
[56] see [70]-[76]
[57] SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at [18]
I conclude that the applicant has failed to demonstrate that the decision of the Tribunal is affected by any jurisdictional error.
In consequence of the dismissal of the application, the Minister seeks an order for costs fixed in the sum of $5,400. Scale costs in this instance would be significantly higher. When I invited submissions from the applicant on costs, he initially continued to debate the fairness of the Tribunal’s process. When I emphasised that his application had been dismissed, he became emotional and appealed to me for help. I explained to him once again the limits on the Court’s jurisdiction. In the result, he made no submissions on the question of costs.
When I resumed my reasons, the applicant intervened to tell me that he had already paid approximately $1,700. I have no reason to disbelieve him. However, the fact that he has incurred his own costs in the proceedings is not a reason for the Court to refrain from making a cost order against him.
I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,400.
I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Driver. Associate:
Dated: 26 March 2021
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