CNY15 v Minister for Immigration and Anor - [2017] FCCA 963

FEDERAL CIRCUIT COURT OF AUSTRALIA

CNY15 v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 963

Catchwords:
MIGRATION – Application to review decision of Administrative Appeals Tribunal – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.65, 424A, 424AA

Cases cited:
BBS15 v Minister for Immigration and Border Protection [2017] FCAFC 61
CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146
Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429; [2009] HCA 39
Minister for Immigration for Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16
Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17
SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668
SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235; [2013] FCAFC 71
SZQHH v Minister for Immigration and Citizenship (2012) 200 FCR 223; [2012] FCAFC 45
SZVAP v Minister for Immigration and Border Protection (2015) 233 FCR 451; [2015] FCA 1089

Applicant:

CNY15

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 3258 of 2015

Judgment of:

Judge Barnes

Hearing date:

1 May 2017

Delivered at:

Sydney

Delivered on:

1 May 2017

REPRESENTATION

The Applicant:

In Person

Solicitors for the Respondents:

Minter Ellison

ORDERS

The application be dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $6,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3258 of 2015

CNY15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application for review of a decision of the Administrative Appeals Tribunal (the Tribunal) dated 2 November 2015. The Tribunal affirmed a decision of a delegate of the First Respondent not to grant the Applicant a protection visa.
The Applicant, a citizen of Bangladesh, first applied for protection in March 2011. The grounds for that application were set out in his protection visa application. In essence, he claimed he had been subjected to slavery both in the Maldives and in Australia and also claimed to be a “worker of Bangladesh Nationalist Party” (the BNP) whose family members were being persecuted. He claimed to lack proper education and employment such as to enable him to be employed in Bangladesh.
That application was refused. Relevantly, having regard to the grounds of review in these proceedings, the delegate’s decision (referred to for convenience as the first delegate’s decision) of 27 May 2011 described the Applicant’s claims and evidence. There is nothing in the first delegate’s decision to indicate that any other documents (apart from copies of pages from the Applicant’s passport) were provided by the Applicant in support of that protection visa application (although the delegate did refer to information before the Department about the circumstances in which the Applicant obtained the original visa for travel to Australia).
The Applicant sought review by the Tribunal. In a decision of 26 October 2011 (the first Tribunal decision) the Tribunal found that it did not have jurisdiction because the application for review was not lodged within the prescribed period. In its reasons it referred to a submission from the Applicant received on 6 October 2011. It is apparent that this submission, which was set out in that Tribunal decision, related to the issue of jurisdiction and why the Applicant lodged his review application out of time. The Tribunal did not refer to any other documents provided by the Applicant.
Subsequently the Migration Act 1958 (Cth) (the Act) was amended to introduce the complementary protection criterion. Consistent with the decision of the Full Court of the Federal Court in SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235; [2013] FCAFC 71 the Applicant then made a second protection visa application on 13 September 2013. Again, the basis for the Applicant’s claims to fear harm was set out in the application form itself. Based on his claimed involvement with the BNP he claimed to fear harm from the Awami League and the police. It appears that, apart from the formal protection visa application forms, no other documents were provided by the Applicant.
The Applicant was invited to, and attended, an interview with the delegate. In reasons for decision the delegate recorded that the interview was suspended after the Applicant stated he was suffering from an illness, but that the Applicant attended a second interview. The delegate set out the Applicant’s present and past claims for protection and discussed his evidence at the interview. There is no reference to any other relevant documentary material being provided by the Applicant. Apart from accepting that the Applicant supported the BNP, the delegate rejected the factual bases for all of the Applicant’s claims. In that context it was noted that at interview the Applicant had added to his claims in his second protection visa application to include a claim to fear harm from his former employer.
The Applicant sought review by the Tribunal. Relevantly, in his application for review, in response to question 17 which asked him to indicate, among other things, what attachments were provided, the Applicant indicated that he provided a copy of the delegate’s decision and the notification letter. He did not tick the box relating to the provision of any evidence or comments supporting the application.
The Applicant was invited to and attended a Tribunal hearing on 12 October 2015. The only document appearing in the Courtbook as having been received at the hearing was a copy of the Applicant’s passport.
In addition, the Minister relied on an affidavit of Laura Jay Crick, affirmed on 26 April 2017, which attached two documents said to have been inadvertently omitted from the Courtbook. The first of these was identified as a Facebook screenshot bearing the name of the Applicant, a column indicating “likes” and what appears to be a picture of a person by the sea. This was said to be a document contained in the departmental file. The second document is a copy of the second Tribunal’s hearing record for 12 October 2015. It notes that documents received were “ID yes, no docs”.
In its decision made on 2 November 2015 the Tribunal affirmed the decision of the delegate.
The Tribunal recorded that it had before it the departmental files relating to the Applicant’s protection visa applications and the Tribunal file relating to the review application and that it had considered the delegate’s decision record the Applicant provided to it.
The Tribunal described the Applicant’s written claims in his visa application form and summarised his additional oral claim to the delegate that he feared his former employer would kill him with the assistance of the Awami League.
It referred to the Tribunal hearing and to the fact that when the Applicant claimed he had begun to feel unwell it took a short adjournment. It recorded that the Applicant had indicated that he was well enough to proceed on a number of occasions after the Tribunal took short adjournments.
The Tribunal stated that during the hearing the Applicant claimed that he feared his former employer was still looking for him. He also claimed that he had been politically active with the BNP in the past, and had been threatened, physically assaulted and attacked by Awami League supporters who had attacked his house when he was visiting Bangladesh in 2007 and 2010. He claimed they had attacked his brother in 2014. He feared he would be killed by Awami League supporters.
The Tribunal accepted that the Applicant was able to make the second protection visa application (see SZGIZ) but found that its jurisdiction was confined to consideration of his claims under the complementary protection criterion (not the Refugees Convention criterion).
The Tribunal recorded that at the Tribunal hearing it had raised a number of concerns with the Applicant about his oral evidence, including his level of knowledge of the BNP; the fact he raised new claims that he feared people from within the BNP; differences between his oral evidence and his previous claims; changes in his oral evidence during the hearing; and his returns to Bangladesh on two occasions despite his claims to fear harm. It found he was not a witness of truth and was not satisfied he had told the truth in relation to critical aspects of his claims. It gave detailed reasons for such findings.
First, the Tribunal had regard to the Applicant’s level of knowledge of BNP principles, the process of becoming a member and other matters, which it set out in some detail. It accepted that the Applicant had identified the padi/rice sheaf that appears on the flag as a symbol of the BNP, but was concerned that he was unable to provide any further detail about the flag, the process of becoming a member or the four main principles of the BNP. While it stated that it did not expect the Applicant to have a complete knowledge of the BNP Constitution and party structure, the Tribunal expected that someone in the Applicant’s claimed circumstances (raised in a family that supported the BNP and having been a member with active involvement from 2000 to 2004 organising processions and rallies, campaigning for local candidates, and a secretary of the local BNP Thana) would have more detailed knowledge than the Applicant had displayed during the hearing. It did not accept that the passage of time or tension and stress the Applicant was under explained his lack of knowledge and considered this reflected poorly on his credibility and the reliability of his claim to be involved with the BNP.
Secondly, the Tribunal had regard to the fact that the Applicant had not mentioned an incident with a BNP member of parliament or any concerns about fear of a BNP member of parliament or supporters until he raised such concern with the Tribunal during the hearing. The Tribunal set out at some length the evidence at the hearing in this respect, the concerns that it raised with the Applicant and his responses.
The Tribunal was concerned that the Applicant’s oral evidence was different to the information in his visa application form which did not mention any conflict with a BNP member of parliament or supporters. Insofar as he claimed he had not the opportunity to tell his story in as much detail in the past, the Tribunal noted that in his two interviews with the delegate he had not included any reference to a claimed conflict with a BNP parliamentarian or supporters. It found that the Applicant’s response to its concerns was confused and unpersuasive and that he had changed his oral evidence in relation to who attacked him and why in response to Tribunal concerns. The Tribunal considered this reflected poorly on the Applicant’s credibility and the reliability of his evidence.
The Tribunal also had regard to changes in the Applicant’s oral evidence in relation to where he lived in Bangladesh prior to leaving for the Maldives. It set out his evidence in that respect.
It also had regard to the fact that the Applicant had returned to Bangladesh from the Maldives twice (in 2007 and 2010), notwithstanding his claims to fear for his safety. It recorded the discussion of this issue at the hearing. It was not satisfied by his explanation that he thought that over the course of time the Awami League may have forgotten the matter and therefore he could return. The Tribunal considered these returns to Bangladesh indicated the Applicant was not in fear for his safety at those times.
The Tribunal also had regard to differences between the Applicant’s claims in his first protection visa application and the claims in his current protection visa application. It recorded his oral evidence and the discussion of the matters in the original protection visa application, including claims that he was enslaved in the Maldives and in Australia and that he was homosexually abused.
The Tribunal recorded that it put information to the Applicant from his first protection visa application in accordance with s.424AA of the Act. There is nothing in the evidence before the Court to indicate that the Tribunal failed in any way to comply with s.424AA. On the contrary, the Tribunal described the information it put to the Applicant, its explanation of the relevance of that information and the fact that the Applicant chose to respond immediately.
The Tribunal did not accept the Applicant’s explanation that translation error or miscommunication between languages explained the difference between his oral evidence to it and the claims he made in his first protection visa application. It considered these differences reflected poorly on the Applicant’s credibility and the reliability of his evidence.
On this basis the Tribunal was not satisfied the Applicant had told the truth in relation to critical aspects of his claims.
The Tribunal did not accept the factual bases for any of the Applicant’s claims. In particular, it did not accept that he was politically active or had a political profile in Bangladesh, his claims of past harm due to any political activity or conflict, that he was ever in hiding or of adverse interest to anyone in Bangladesh when he left the Maldives, that he was approached or attacked by Awami League supporters, that other claimed events had occurred on his returns, that his family had been threatened or harassed, or that his brother had been attacked.
While the Tribunal accepted that country information indicated that violence did occur between supporters of political parties in Bangladesh, it did not accept that the Applicant supported the BNP or any other political party in Bangladesh, that he had previously or now had any political profile or imputed political opinion that would attract the adverse attention of anyone in Bangladesh or that he would undertake any political activity on return. It did not accept there was a real risk he would be harmed, mistreated or killed, arrested or “put in crossfire” by the Awami League, police or government authorities if he returned to Bangladesh.
Nor did the Tribunal accept that the Applicant’s former employer had any ongoing adverse interest in the Applicant, that he had been shipped out of Bangladesh to work in slavery as he claimed, or that there was a real risk the former employer or his agents would try to locate him or harm him for any reason. It did not accept that he was homosexually abused or raped or that he would not have a position in Bangladesh society and would face tremendous problems living in the community with dignity.
The Tribunal considered the Applicant’s evidence about his past work in Bangladesh and his family’s activities and on that basis did not accept there was a real risk he would be unable to find employment or be unable to subsist.
The Tribunal did not accept there was a real risk the Applicant would suffer significant harm for any or all of the reasons he claimed on return now or in the reasonably foreseeable future. It was not satisfied he met the complementary protection criterion.
The Applicant sought review by application filed in this Court on 30 November 2015. He did not file any amended application or written submissions, but was given the opportunity today to address the grounds in his application and any other concerns he had with the Tribunal decision or procedures.
The first ground in the application for review is as follows:
Administrative Appeals Tribunal (The Respondent) made a jurisdictional error by not taking into consideration relevant evidence submitted before the tribunal, therefore refusing to give weight to evidence provided by me and thereby made erroneous findings and mistaken conclusions.
At the hearing today I asked the Applicant if he wanted to say anything about ground 1. He claimed that from “time to time” he had submitted papers in support of his claims. However, after being taken through the Courtbook and the documents that appeared to have been submitted, he was unable to identify any other papers that had been provided, either to the Department or to the Tribunal, in support of his protection visa applications. He said he thought he had submitted papers, but he did not recall what he submitted. He then said he did not remember if he submitted papers and if so what they were.
I have had regard to all of the material in evidence before the Court in considering this ground, notwithstanding the absence of identification of any evidence the Tribunal is said not to have considered.
I note first that this is not a case in which any concern is raised on the material before the Court that there was relevant material provided by the Applicant to the Department (or to the first Tribunal review) to which the Tribunal failed to have regard, let alone concerns of the nature considered by the Full Court of the Federal Court in BBS15 v Minister for Immigration and Border Protection [2017] FCAFC 61.
On the evidence before the Court the only documents provided to the Department by the Applicant, were the application forms in which his claims were presented and a copy of his passport. The only documents provided by him to the Tribunal were the copies of the delegate’s decision and the notification letter annexed to his review application and a copy of his passport. The Tribunal had before it the files in relation to the first protection visa application as well as the second protection visa application, the contents of which are discussed above. The Tribunal had regard to the Applicant’s passport and found that the Applicant was a citizen of Bangladesh. His present or former passport was not in any way relevant to any other aspect of the Applicant’s protection claims. No issue is apparent as to any asserted dates of travel by the Applicant.
Attached to the affidavit of Laura Jay Crick, affirmed on 26 April 2017, is a screenshot from Facebook which, it would appear, is a document that was referred to by the delegate in connection with the second visa application as indicating that the Applicant was in Australia and that there were a number of “likes” by his friends. There is no suggestion that the Applicant provided this document to the Department. The Tribunal did not refer to the Facebook screenshot in its decision. There is nothing in the material before the Court or in anything that was said today to suggest that such document was in any way of critical relevance or cogent evidence in relation to the Applicant’s protection claims.
The Tribunal’s failure to refer to the Facebook screenshot is not such as to give rise to any failure to take into account evidence in a manner constituting jurisdictional error as considered in Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317. The Tribunal did not take that document into account adversely and no s.424A or other issue is apparent in that respect. Ground 1, as pleaded, as elaborated on by the Applicant, and as discussed in submissions for the Minister, is not made out.
Ground 2 is that the Tribunal took into account what is said to be an “unreasonable belief and personal opinion as the expected acts and omissions of [the Applicant] and accordingly made findings and reached conclusions adverse to [his] case”.
As pleaded, this appears to amount to an allegation that the Tribunal’s decision was illogical or irrational or that its findings lacked an evident and intelligible justification, notwithstanding the absence of any particularisation.
The Tribunal reached adverse credibility findings. However, while bearing in mind the remarks of the Full Court of the Federal Court in CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146, there is nothing in the evidence before the Court to indicate jurisdictional error in that process. The Tribunal’s findings were reasonably open to it on the material before it for the reasons which it gave. There is a logical basis for such findings (see Minister for Immigration for Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16), which displayed an evident and intelligible justification, being based on the various matters set out above, in particular inconsistencies in the Applicant’s evidence, his lack of knowledge of the BNP’s procedures and principles, his returns to Bangladesh despite his claimed fear and the changes in his claims and evidence at various times. Nor is there anything in the material before the Court supportive of a claim of jurisdictional error in the manner considered by Flick J in SZVAP v Minister for Immigration and Border Protection (2015) 233 FCR 451; [2015] FCA 1089.

The oral explanation the Applicant proffered in relation to ground 2 was somewhat different. The Applicant stated that he meant to say that if he went back to Bangladesh he would be subjected to harassment and torture and that perhaps the Tribunal had not understood his claim. Insofar as the Applicant repeated his claims for protection it is apparent that the Tribunal considered all the integers of his claims and addressed those claims. There is no evidentiary basis for the claim that the Tribunal misunderstood any aspect of the Applicant’s claims (as distinct from not accepting the factual basis for those claims for the reasons which it gave). Beyond this the Applicant seeks impermissible merits review. Ground 2 is not made out.
Ground 3 is that the Tribunal “reached (sic) mistaken conclusion based on personal opinion and biased assumptions against [the Applicant’s] submission”. The reference to a “submission” would appear to be a reference to the Applicant’s oral evidence to the Tribunal, as there is no evidence of a written submission by or for the Applicant to the Department or to the Tribunal, apart from the written submission that related to the issue of jurisdiction before the first Tribunal. Insofar as any concern was intended to be expressed about the Tribunal’s failure to refer to that written submission, it was not cogent or critical evidence relevant to the second protection visa application in the sense considered in SZRKT.
In essence, ground 3 amounts to a repetition of the allegations in ground 2, but also raises an allegation of bias on the part of the Tribunal. This is a serious allegation. It is not supported by any evidence, apart from the Tribunal reasons for decision which do not establish pre-determination amounting to actual bias in the sense considered in Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17. There is no evidence to demonstrate that a fair-minded lay person might think that the Tribunal did not bring a fair and impartial mind to the making of the decision (see SZQHH v Minister for Immigration and Citizenship (2012) 200 FCR 223; [2012] FCAFC 45). The fact that the Tribunal made adverse findings is not, in itself, indicative of actual or apprehended bias. It is a rare case in which apprehended bias would be made out on the basis of the Tribunal reasons alone (SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38]). This is not such a case. The Tribunal’s account of what occurred in the Tribunal hearing does not raise concerns in that respect. On the contrary, it appears that the Tribunal gave the Applicant the requisite opportunity to give evidence and present arguments, raised its concerns and dispositive issues with him and also put adverse information to him as required under s.424A of the Act pursuant to s.424AA of the Act.
When I asked the Applicant if he wanted to elaborate on ground 3 he claimed that he tried to explain his past history and claims and that the Tribunal did not understand what he meant to say and that this was why his application had been dismissed. He agreed that this was what he was addressing in the affidavit that accompanied his application affirmed on 30 November 2015. I note that paragraphs 5 to 9 of that affidavit are in effect submissions and were treated as such by the Court. In his affidavit, the Applicant claimed that he informed the Tribunal he feared returning to Bangladesh because of his activities with the BNP and past harm; claimed that the Tribunal did not take the evidence he presented seriously and that it had questioned his credibility based on the Tribunal member’s personal opinion; and claimed that the Tribunal did not have a full understanding of his political involvement and thus reached a mistaken conclusion based on what I think is meant to say “inadequate” information collected by the Tribunal.
As indicated, the Tribunal’s credibility findings were reasonably open to it on the material before it for the reasons which it gave and its reasoning is not otherwise indicative of jurisdictional error. The Tribunal recorded and addressed the Applicant’s claims. It was open to it to make findings in relation to credibility and to consider whether it was satisfied that the Applicant met the complementary protection criterion consistent with its obligation of review under the Migration Act (see s.65 of the Act).
There is no evidence that the Tribunal misunderstood the Applicant’s claims. Insofar as the allegation may be seen as a contention that the Tribunal should have made inquiries or obtained further information in relation to political parties in Bangladesh, there is nothing in the material before the Court to suggest that this was a case in which the Tribunal failed to make an inquiry about a critical fact the existence of which was easily ascertained such as to demonstrate a jurisdictional error in the sense considered in Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429; [2009] HCA 39.
The Tribunal did refer to country information in relation to political violence in Bangladesh, but that is not such as to establish that the Tribunal erred in the manner contended for by the Applicant. It was open to the Tribunal to have regard to country information and to determine the weight to be given to such information. Insofar as these concerns seek merits review, merits review is not available in this Court.
The Applicant also submitted that the Tribunal should have given more weight to his oral submission rather than placing an emphasis on what were said to be available “hard copy documents”. It appears that this is a contention that the Tribunal should have accepted the Applicant’s oral evidence at the hearing rather than placing reliance on documents that were before it (such as country information in relation to the BNP or the Applicant’s first protection visa application).
However the weight to be given to items of information is a matter for the Tribunal. The Tribunal put its concerns based on such information to the Applicant for comment and considered his responses. No jurisdictional error is apparent in the Tribunal’s approach to its assessment of the credibility of the Applicant’s claims. It was open to the Tribunal to identify and have regard to inconsistencies, not only within the Applicant’s oral evidence, but also inconsistencies between the Applicant’s oral evidence and his earlier written claims in connection with his first protection visa application. No jurisdictional error is established on any of the bases contended for in the Applicant’s affidavit.
Finally, in submissions in reply, the Applicant suggested that he wanted the Court to order that he not be forced to return to Bangladesh immediately. I am not persuaded that there is any basis on which to make such an order in these proceedings.
The Applicant has been unsuccessful and the appropriate order to be made is that the application be dismissed. The Minister seeks costs in the sum of $6,000. The Applicant told the Court that he did not have permission to work, could not pay the costs and raised a query as to how he could do so. However the Applicant’s lack of funds is not a reason for departing from the normal principle that an unsuccessful applicant should meet the costs of the successful respondent, although it may be a matter to be taken into account by the Minister in determining when and how to seek to recover such costs. The amount sought is reasonable and appropriate in light of the nature of this and other similar cases.

I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Judge Barnes

Date: 12 May 2017