CNY15 v Minister for Immigration and Border Protection
[2017] FCA 1456
•7 December 2017
FEDERAL COURT OF AUSTRALIA
CNY15 v Minister for Immigration and Border Protection [2017] FCA 1456
Appeal from: CNY15 v Minister for Immigration & Anor [2017] FCCA 963 File number: NSD 740 of 2017 Judge: RANGIAH J Date of judgment: 7 December 2017 Catchwords: MIGRATION – appeal from Federal Circuit Court – refusal to grant protection visa - where Tribunal rejected appellant’s credibility – whether Tribunal required to give particulars of information – whether Tribunal failed to consider a claim – no jurisdictional error – appeal dismissed Legislation: Migration Act 1958 (Cth) ss 36, 424AA and 424A Cases cited: SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 Date of hearing: 22 November 2017 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 27 Counsel for the Appellant: The appellant appeared in person Solicitor for the First Respondent: Mr J Pinder of Minter Ellison Counsel for the Second Respondent: The Second Respondent filed a submitting notice ORDERS
NSD 740 of 2017 BETWEEN: CNY15
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
RANGIAH J
DATE OF ORDER:
7 DECEMBER 2017
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The appellant pay the first respondent’s costs of the appeal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
RANGIAH J:
This is an appeal against a judgment of the Federal Circuit Court of Australia delivered on 1 May 2017. The primary judge dismissed the appellant’s application for judicial review of a decision of the second respondent, the Administrative Appeals Tribunal (the Tribunal). The Tribunal affirmed a decision of a delegate of the first respondent to refuse the appellant the grant of a Protection (Class XA) visa.
The appellant is a citizen of Bangladesh who first arrived in Australia on 1 June 2010. On 21 March 2011, he applied for a protection visa. On 27 May 2011, the first protection visa application was refused by a delegate of the first respondent. The appellant then sought review of that decision before the Refugee Review Tribunal (the RRT). The RRT found that it did not have jurisdiction in respect of the application as it was lodged outside the prescribed time. The appellant unsuccessfully sought review of that decision before the Federal Magistrates Court of Australia, the Federal Court of Australia and the High Court of Australia. He then made an unsuccessful application for ministerial intervention.
On 18 September 2013, the appellant made a second application for a protection visa based on a claim for complementary protection pursuant to s 36(2)(aa) of the Migration Act 1958 (Cth). On 19 August 2014, the delegate refused to grant the appellant a protection visa. He then sought review of the delegate’s decision before the Tribunal. On 2 November 2015, the Tribunal affirmed the delegate’s decision.
In his second application form, the appellant claimed that he was involved with the Bangladesh Nationalist Party (BNP) in Bangladesh and feared harm from its political opponents, the Awami League, because of his political opinion. He claimed that the Awami League had harassed and tortured him in the past, and had also harassed his family. In an interview with a delegate of the first respondent, the appellant also claimed that he feared that his former employer would kill him with the assistance of the Awami League.
In its reasons, the Tribunal found:
20.…The Tribunal finds the applicant is not a witness of truth and it is not satisfied that the applicant has told the truth in relation to critical aspects of his claims. The reasons for this find are discussed in more detail below.
The Tribunal then set out five reasons for its adverse finding as to the appellant’s credibility. Relevantly, for the purposes of the appeal, the Tribunal said:
29. The Tribunal raised its concern that the applicant had indicated in his visa application form concerns about the Awami League people and supporters, but did not mentioned any incident with the BNP MP or any concerns about a BNP MP or his supporters in the BNP. In response the applicant told the Tribunal the Awami League is the main enemy who he is afraid of. He told the Tribunal they are the main enemy, and that when he returned to Bangladesh he was attacked twice, that they are shouting at his family that if the applicant comes back they will kill him, and last year his younger brother was attacked by the Awami League people and the police were involved. When the Tribunal noted the applicant had told the Tribunal he left Bangladesh in 2004 due to the conflict the BNP MP and his supporters, the applicant told the Tribunal he was attacked by BNP people but Awami League people were there as well, and combined BNP and Awami League, his enemy became too big. He then told the Tribunal there were less people from the BNP and more from the Awami League involved.
…
40. The Tribunal also noted that in the applicant’s first protection visa application form the applicant claimed that being homosexually abused and raped, he will not have a position in Bangladesh society and will face tremendous problems in living in the community with dignity. In response the applicant told the Tribunal that his former owner had tried to do something like that but the applicant protected himself and escaped from the situation.
The Tribunal went on to make findings rejecting each of the appellant’s claims as to events that were said to found his well-founded fear of persecution for a convention reason. Most relevantly, the Tribunal said:
46.Given the concerns about the applicant’s oral evidence and credibility as discussed above, the Tribunal does not accept the applicant was raised in a family which supported the BNP, or that the applicant became a member and was actively involved with the BNP between 2000 and 2004. The Tribunal does not accept the applicant arranged or attended BNP meetings or rallies, or that he campaigned for BNP candidates during elections, or that he was the local Thana Secretary. The Tribunal does not accept the applicant was politically active in Bangladesh, or that he had a political profile in Bangladesh.
47. The Tribunal does not accept the applicant came to the adverse attention of the local BNP MP or his supporters or Awami League supporters. The Tribunal does not accept the applicant was physically attacked in 2003 by the local BNP MPs supporters or Awami League supporters. The Tribunal does not accept the applicant was injured and spent one month in hospital due to any political activity or conflict.
…
52. The Tribunal does not accept the applicant’s former employer from the Maldives is looking for the applicant, or that he has sent someone to Bangladesh to question the applicant’s family and the people of his village or the Awami League in relation to the applicant and his whereabouts. The Tribunal does not accept the applicant’s former employer has any ongoing adverse interest in the applicant.
53. The Tribunal does not accept the applicant was shipped out of Bangladesh to work in slavery in the Maldives, or that the applicant was forced to work 24-hour cycle without any payment, any basic rights, leave, holidays, or any regard to his fundamental human rights. The Tribunal does not accept there is a real risk the applicant’s former employer or his agents will try to locate him and kill him for any reason. The Tribunal does not accept the applicant was homosexually abused or raped, or that he will not have a position in Bangladesh society and will face tremendous problems in living that in the community with dignity.
…
55. The Tribunal does not accept there is a real risk the applicant will suffer significant harm for any of the reasons he has claimed, if returned to Bangladesh, now or in the reasonably foreseeable future.
56. Having considered the applicant’s claims individually and cumulatively, for the reasons given above, the Tribunal is not satisfied there is a real risk the applicant will be arbitrarily deprived of his life; or the death penalty will be carried out on him; or that he will be subject to torture, or cruel or inhuman treatment or punishment; or subject to degrading treatment or punishment, if he is returned to Bangladesh, now or in the foreseeable future.
57.Accordingly, the Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Bangladesh, there is a real risk he will suffer significant harm. Therefore the applicant does not satisfy the criterion set out in s.36(2)(aa) for a protection visa.
Before the Federal Circuit Court, the appellant relied upon the following grounds of review:
1.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.
2. The Respondent took into account unreasonable belief and personal opinion as the expected acts and omissions of me and accordingly made findings and reached conclusions adverse to my case.
3. The Respondent reached mistaken conclusion based on personal opinion and bias assumptions against my submission.
As to the first ground, the primary judge held that the Tribunal did have regard to all of the relevant evidence, including all of the documents in which the appellant set out his protection claims.
As to the second ground, the primary judge held that the Tribunal’s adverse findings were reasonably open to it for the reasons it gave. The Tribunal had provided a probative basis for its adverse credibility findings. Further, to the extent that the appellant repeated his claims for protection, he sought impermissible merits review. Her Honour held that on a fair reading of the Tribunal’s decision record, there was no indication that the Tribunal misunderstood, or did not properly consider, his protection claims.
Her Honour found that the third ground largely repeated a second ground and therefore failed for the same reason. To the extent that the appellant contended that there was bias on the part of the Tribunal, her Honour said that this serious allegation was unsupported by evidence.
Accordingly, the primary judge held that no jurisdictional error on the part of the Tribunal had been established and dismissed the application.
In this Court, the appellant’s Notice of Appeal relies on one ground:
Her Honour erred in finding that the Tribunal had afforded procedural fairness to the Appellant, and/or erred in finding that the Tribunal had complied the procedures it was required to follow under the Migration Act 1958 (“the Act”).
The appellant filed a written outline of submissions which supplemented the ground set out in the notice of appeal. The appellant’s written submissions make three allegations of error on the part of the Tribunal, which it is said that the primary judge failed to identify:
(1)The Tribunal breached its obligation arising under s 424A(1) of the Act by not giving particulars of information from the appellant’s first protection visa application to the appellant for response or comment pursuant to the procedure set out in s 424A or the alternative procedure set out in s 424AA.
(2)The Tribunal failed to consider a claim said to arise clearly from the first protection visa application, namely that the appellant fears homosexual abuse in the future if he returns to Bangladesh.
(3)The Tribunal failed to engage in an active intellectual process with respect to that claim.
The appellant was self-represented at the hearing of the appeal. It became apparent that he had not prepared the written submissions he relied on and was unable to expand upon those submissions.
As to the first alleged error, the appellant’s written submissions state:
In para 40 (court book 242) the Tribunal noted that in the applicant’s first protection visa application form, the applicant claimed that being homosexually abused and raped and as a result of that he would face tremendous problems in living with the community with dignity. Further, the Tribunal noted the applicant’s first protection visa application also raised his claims that he worked for the BNP and concerns in relation to political affiliation. The above two concerns the Tribunal considered to question the credibility of the applicant falls within the definition of “information” that was not put to the appellant in accordance with s 424A or s 424AA of the Act.
The issue raised with respect to paragraph 40 of the Tribunal’s reasons seems to be that the Tribunal identified an inconsistency between the appellant’s first protection visa application form and his oral evidence which the Tribunal considered to reflect adversely upon his credibility. The second issue raised by the appellant appears to refer to paragraph 29 of the Tribunal’s reasons where the Tribunal noted that the appellant had raised in oral evidence an alleged incident with, and concerns about, a BNP member of parliament and his supporters, which the appellant had not mentioned in his first visa application form.
Section 424AA of the Act provides, relevantly:
424AA Information and invitation given orally by Tribunal while applicant appearing
(1)If an applicant is appearing before the Tribunal because of an invitation under section 425:
(a)the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b)if the Tribunal does so—the Tribunal must:
(i)ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and
(ii)orally invite the applicant to comment on or respond to the information; and
(iii)advise the applicant that he or she may seek additional time to comment on or respond to the information; and
(iv)if the applicant seeks additional time to comment on or respond to the information—adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.
…
Section 424A of the Act provides, relevantly:
424A Information and invitation given in writing by Tribunal
(1) Subject to subsections (2A) and (3), the Tribunal must:
(a)give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b)ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c)invite the applicant to comment on or respond to it.
(2) The information and invitation must be given to the applicant:
(a)except where paragraph (b) applies—by one of the methods specified in section 441A; or
(b)if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.
(2A)The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.
(3) This section does not apply to information:
(a)that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b)that the applicant gave for the purpose of the application for review; or
(ba)that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or
(c)that is non disclosable information.
…
The first respondent accepts that ss 424A(3)(b) and (ba) of the Act do not apply to the appellant’s first protection visa application form. That is because the application for review being considered by the Tribunal was in respect of the refusal of the appellant’s second visa application.
The issue is whether ss 424AA and 424A of the Act apply to the inconsistencies identified in paragraphs 29 and 40 of the Tribunal’s reasons. Section 424AA was enacted following the judgment in SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609.
In that case, the High Court was concerned with an application where the Tribunal had drawn an appellant’s attention to discrepancies between his oral evidence and his written claims in a statutory declaration and invited him to comment, but there had not been any attempt to comply with the procedure in s 424A. The High Court held:
[15]This then requires close attention to the circumstances in which s 424A is engaged. Section 424A does not require notice to be given of every matter the tribunal might think relevant to the decision under review. Rather, the tribunal’s obligation is limited to the written provision of “particulars of any information that the tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review”. What, then, was the “information” that the appellants say the tribunal should have provided? In their written submissions, the appellants appeared to focus on the requisite “information” as being the “inconsistencies” between their statutory declaration and oral evidence. However, in oral argument they focused on the provision of the relevant passages in the statutory declaration itself, from which the inconsistencies were later said to arise.
…
[17] Secondly, the appellants assumed, but did not demonstrate, that the statutory declaration “would be the reason, or a part of the reason, for affirming the decision that is under review”...Here, the appropriate criterion was to be found in s 36(1) of the Act, being the provision under which the appellants sought their protection visa. The “reason, or a part of the reason, for affirming the decision that is under review” was therefore that the appellants were not persons to whom Australia owed protection obligations under the Convention. When viewed in that light, it is difficult to see why the relevant passages in the appellants’ statutory declaration would itself be “information that the tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review”. Those portions of the statutory declaration did not contain in their terms a rejection, denial or undermining of the appellants’ claims to be persons to whom Australia owed protection obligations. Indeed, if their contents were believed, they would, one might have thought, have been a relevant step towards rejecting, not affirming, the decision under review.
[18] Thirdly and conversely, if the reason why the tribunal affirmed the decision under review was the tribunal’s disbelief of the appellants’ evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting “information” within the meaning of para (a) of s 424A(1). Again, if the tribunal affirmed the decision because even the best view of the appellants’ evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute “information”. Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs that the word “information”:
… does not encompass the tribunal’s subjective appraisals, thought processes or determinations … nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc …
…However broadly “information” be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant “information” was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself.
…
(Citations omitted, underlining added.)
In this case, the appellant submits that his first visa application form and the inconsistencies between that form and his oral evidence was information in respect of which the Tribunal was required to comply with s 424AA of the Act. However, the application form itself was not part of the reason for affirming the decision under review. The contents of the application form did not undermine the appellant’s claims for complementary protection, but rather supported them. Further, the Tribunal’s disbelief of the appellant’s evidence arising from inconsistencies in that evidence does not amount to “information” within the meaning expression in s 424AA or s 424A. Therefore, s 424AA did not apply to the matters dealt with in paras 29 and 4 of the Tribunal’s reasons.
The second error described in the appellant’s written outline is that the Tribunal should have considered the appellant’s claim to fear “homosexual abuse” in Bangladesh. This seems to stem from his allegation that he had been homosexually abused in the past in the Maldives. The appellant made no claim before the Tribunal that he feared that he would be homosexually abused in Bangladesh the future. Rather, in his first application form he claimed that “being a homosexually abused and raped I will not have position in Bangladesh society and I will face tremendous problem in living in the community with dignity”. The Tribunal was not required to consider a claim that was never made by the appellant.
In any event, the Tribunal explicitly considered and rejected the claim that the appellant had been homosexually abused and raped in the past at paragraph 53 of its reasons. The Tribunal, accordingly, rejected the factual substratum underlying any claim (which was not made) that the appellant feared that he would be homosexually abused in the future.
The third allegation made in the appellant’s outline of submissions appears substantially the same as the second allegation. The Tribunal did engage in an active intellectual process in respect of the claim that the appellant had been homosexually abused and raped.
The appellant has not demonstrated any error in the judgment of the Federal Circuit Court. Therefore the appeal must be dismissed with costs.
I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rangiah. Associate:
Dated: 7 December 2017
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