Coy16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 294
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
COY16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 294
File number(s):
MLG 1961 of 2016
Judgment of:
JUDGE LUCEV
Date of judgment:
28 April 2022
Catchwords:
MIGRATION – Application for judicial review – decision of Administrative Appeals Tribunal – citizen of Bangladesh – whether seeking impermissible merits review – whether denial of procedural fairness – whether reasoning affected by unreasonableness, irrationality or illogicality – whether bias – whether failure to consider complementary protection criteria – whether entitlement to legal representation before the Tribunal – whether jurisdictional error
Legislation:
Migration Act 1958 (Cth) Pt 7, Div 4, ss 36, 65, 414, 422B, 424A, 425, 425A, 476
Migration Regulations1994 (Cth) cl 886.221
Cases cited:
AFP21 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCCA 1322
ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; (2016) 250 FCR; (2016) 154 ALD 221
BVB15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 413
CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496; (2016) 70 AAR 413
EGU17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 153
Ludgero v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1060; (2021) 358 FLR 215
Maroun v Minister for Immigration & Citizenship [2009] FCA 1284; (2009) 112 ALD 424
Mathai & Ors v Minister for Immigration and Border Protection [2016] FCCA 578
Minister for Immigration & Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559; (1997) 71 ALJR 743; (1997) 144 ALR 567; [1997] FCA 22
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration & Multicultural & Indigenous Affairs v NAMW (2004) 140 FCR 572
Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 264; (2004) 140 FCR 572; (2004) 84 ALD 325
Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225
Minister for Immigration and Citizenship v Li (2013) 297 ALR 225
Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 138 ALD 181
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123; (2009) 259 ALR 429; (2009) 111 ALD 15
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248
Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41; (2010)183 FCR 575; (2010) 114 ALD 666
Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41; (2010) 183 FCR 575; (2010) 114 ALD 666
Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99; (2013) 302 ALR 672; (2013) 136 ALD 41
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1
Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611; (1999) 73 ALJR 746; (1999) 162 ALR 577; (1999) 54 ALD 289
Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507; (2001) 75 ALJR 679; (2001) 178 ALR 421; (2001) 65 ALD 1
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392; (2015) 238 FCR 158
MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 95 ALJR 441
Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1
Rajmohan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1556
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437; (1994) 124 ALR 265; (1994) 35 ALD 1
Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 75 ALJR 982; (2001) 179 ALR 425
Re The Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405; (2000) 168 ALR 407; (2000) 58 ALD 609
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300
SZQFS v Minister for Immigration and Citizenship [2011] FCA 1244
VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117
VJAF v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 178
WAJW v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 330
WZATN v Minister for Immigration and Border Protection [2014] FCCA 86
Division:
Division 2 General Federal Law
Number of paragraphs:
100
Date of hearing:
21 February 2022
Place:
Perth
Applicant:
In person via CISCO Webex with the assistance of an interpreter
Counsel for the First Respondent:
Ms M Stone via CISCO Webex
Solicitor for the First Respondent:
Mills Oakley
Second Respondent:
Second Respondent submitting appearance, save as to costs
ORDERS
MLG 1961 of 2016 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: COY16
Applicant
AND: MINSTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LUCEV
DATE OF ORDER:
28 APRIL 2022
THE COURT ORDERS THAT:
1.The originating application filed 13 September 2016 be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LUCEV
INTRODUCTION
Before the Court is an application under s 476 of the Migration Act 1958 (Cth) (“Migration Act”) by the applicant, COY16, filed 13 September 2016 for judicial review (“Judicial Review Application”) of a decision of the Administrative Appeals Tribunal (“Tribunal” and “Tribunal Decision” respectively) of 15 August 2016 to affirm a decision of a delegate (“Delegate” and “Delegate’s Decision” respectively) of the first respondent, then the Minister for immigration and Border protection, now the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“Minister”) to refuse COY16 a Subclass 866 Class XA Protection visa (“Protection Visa”).
The Court Book (“CB”) containing the Tribunal Decision at CB 285-294 was marked as Exhibit 1 at hearing. COY16 filed a six paragraph affidavit (COY16’s Affidavit”) in support of the Judicial Review Application, but it is essentially in the form of submissions contending that COY16 will produce evidence of his political party membership and that his father is in hiding and faces prosecution, and otherwise seeks to address the merits of the Tribunal Decision by reiterating submissions made to the Tribunal or the grounds of the Judicial Review Application. It will not be necessary to refer further to COY16’s Affidavit for the purposes of these Reasons for Judgment.
BACKGROUND TO THE TRIBUNAL DECISION
COY16 is a citizen of Bangladesh who arrived in Australia on 6 May 2013 as an unauthorised maritime arrival: CB 117.
On 30 August 2013 COY16 applied for the Protection Visa: CB 31-92. As part of his claims for the Protection Visa, COY16 alleged that:
(a)COY16 and his father are members of the Bangladesh Nationalist Party (“BNP”): CB 78 at [1];
(b)after the Awami League (“League”) defeated the BNP at the 2008 elections, COY16’s family’s business was extorted by the League: CB 78 at [2];
(c)in early 2009 around 12 League members came to COY16’s family’s business and threatened COY16 and his father with hockey sticks, and demanded money. COY16’s father was given three months within which to pay (“2009 Incident”): CB 78 at [5];
(d)every few weeks after the 2009 Incident, League members would come to COY16’s family’s business and threaten COY16’s family, destroy goods and steal produce. The League members would threaten to kill the family if they did not pay: CB 78-79 at [8];
(e)COY16’s father eventually paid the money: CB 79 at [9];
(f)in early 2011 League members returned to COY16’s family’s business and demanded COY16 pay them more money. COY16 did not have the money, but out of fear told the League members then present that he would pay them in a month’s time (“2011 Incident”). COY16 went to the police station to complain about the demand, but the police told COY16 to either pay the sum or close his family’s business: CB 79 at [10]-[13];
(g)two weeks after the 2011 Incident, four members of the League returned to COY16’s family’s business demanding the money and destroyed produce at the business. One member of the League beat COY16 with a hockey stick and broke his fingers, and COY16 lost consciousness and woke up in hospital. While COY16 was in hospital League members torched COY16’s family’s business and nothing was salvageable (“Second 2011 Incident”): CB 79-80 at [14]-[19]; and
(h)COY16 fled his home village to Dhaka, the capital of Bangladesh. In early 2013, COY16’s father visited him and on the same day, a League member came to COY16’s new workplace asking for COY16. COY16 saw the League member and recognised him as one of the attackers from the incident that occurred at COY16’s family’s business. COY16 became fearful and hid from the man (“First 2013 Incident”). A few months after First 2013 Incident, the same League member returned to COY16’s new workplace accompanied by six other League members, looking for COY16. COY16 fled from his new workplace and the League members pursued him, but he escaped (“Second 2013 Incident”) and immediately commenced plans to flee Bangladesh: CB 80 at [20]-[30].
On 12 September 2014 COY16 was invited to an interview with a Delegate of the Minister in relation to his Protection Visa application, to be held on 16 October 2014 (“Delegate Interview”): CB 90-96.
COY16 attended the Delegate Interview, and on 29 October 2014 and 11 November 2014 provided documents requested by the Delegate during the Delegate Interview: CB 97-101 and 102-105.
In the Delegate’s Decision: CB 116-137, the Delegate determined that COY16 was not a person to whom Australia owed protection obligations under s 36 of the Migration Act and cl 886.221 of the Migration Regulations1994 (Cth) (“Migration Regulations”): CB 137.
On 17 December 2014 COY16 applied to the Tribunal for review of the Delegate’s Decision (“Tribunal Review Application”): CB 138-139.
A hearing was held before the Tribunal on 11 July 2016 (“Tribunal Hearing”) and lasted for more than two and a half hours: CB 186-188. COY16 attended the Tribunal Hearing with two witnesses, only one of whom gave evidence, and was assisted by a Bengali interpreter: CB 186-188 and 286 at [3].
Following the Tribunal Hearing the Tribunal COY16 was permitted to provide further written submissions to the Tribunal Hearing: CB 188 and CB 191-192.
COY16, through his newly appointed migration agent: CB 191-193, subsequently submitted the following to the Tribunal:
(a)country information (news articles) on Bangladesh’s political situation and on COY16’s home village, including two video recordings (with transcripts of the video recording audio) from residents of COY16’s home village attesting to the harm COY16 suffered in Bangladesh;
(b)a letter of support from Mr Andrew Wilkie, MP (“MP Letter”); and
(c)documents related to COY16’s Australian business: CB 201-278.
On 15 August 2016 the Tribunal Decision was to affirm the Delegate’s Decision not to grant COY16 a Protection Visa: CB 285-294.
TRIBUNAL DECISION
The Tribunal:
(a)accepted COY16’s identity was as claimed and that Bangladesh was the receiving country for the purposes of s 36(2)(aa) of the Migration Act: CB 289 at [38]-[39];
(b)found COY16’s oral evidence at the Tribunal Hearing was inconsistent with his written claims and the evidence he gave at the Delegate Interview. It found COY16 was not a reliable witness because:
(i)COY16 had told the Delegate and said at the Tribunal Hearing that he was just a regular supporter of the party, in contrast to his written claims which stated he was a member of the BNP: CB 78. The Tribunal considered COY16’s written claims in this respect to have been embellished: CB 289-290 at [42];
(ii)COY16 was unsure of when the first demand from the League for money occurred and stated at different times that it was either in early 2009 or late 2009. In light of the seriousness of the claims made and the large sum of money, the Tribunal found it difficult to accept that COY16 could not more accurately account for the date: CB 290 at [43];
(iii)COY16 claimed at the Delegate Interview that his father had borrowed money in 2011 to pay the League, but claimed during the Tribunal Hearing that his father paid off the demand by selling land. When the Tribunal pointed out that the evidence given at the Delegate Interview differed to that at the Tribunal Hearing, COY16 claimed this was because he was only told the full story after the Delegate Interview. The Tribunal was not persuaded by this explanation and found the explanation was fabricated to overcome issues with the timing of the events: CB 290 at [44]-[45];
(iv)COY16’s account of what occurred after he fled his home village was “particularly problematic”: CB 290 at [46]. In his written claims regarding the First 2013 Incident, COY16 stated that his father visited him once in early 2013, and soon after a League member came to COY16’s workplace looking for COY16 and COY16 recognised the man. The Tribunal found that COY16’s account of these events at the Tribunal Hearing was significantly different, and COY16 had instead claimed that he did not recognise the man. COY16 then changed his evidence during the Tribunal Hearing and claimed it was possible that he mixed things up because he was scared and stressed. The Tribunal did not observe that he exhibited signs of stress or discomfort during the Tribunal Hearing and was not persuaded by this explanation: CB 290 at [46]; and
(v)COY16 also claimed at the Tribunal Hearing, for the first time, that his father was present during the Second 2013 Incident, that is, when COY16 was purportedly recognised and fled out the back door of the workplace. The Tribunal found in this regard that COY16 was changing his evidence in response to concerns expressed during the Tribunal Hearing: CB 290-291 at [47]-[48],
(c)found the cumulative effect of the inconsistencies in COY16’s evidence and his changing accounts caused the Tribunal to doubt whether the alleged events actually occurred. While it accepted that the Tribunal Hearing process could be stressful and inconsistencies and omissions could arise, the Tribunal was not satisfied that this accounted for the multitude of confused responses from COY16. It also found it highly implausible that COY16 would have remained living and working in Dhaka after the First 2013 Incident. The Tribunal did not accept COY16’s explanation that he stayed in Dhaka because it was difficult to find a job in his local area, noting it took COY16 just one week to find a job in Dhaka: CB 291 at [49]-[51];
(d)considered the MP Letter but afforded it no weight as the MP had indicated he did not know COY16 personally: CB 291-292 at [52];
(e)had regard to the video recordings and the transcripts, but found them “problematic”: CB 292 at [53], noting that they were obtained after the Tribunal Hearing. The Tribunal considered these materials were sought to strengthen COY16’s claims in the face of concerns arising at the Tribunal Hearing. It also noted the transcripts were “almost identical in wording”: CB 291 at [53], which led the Tribunal to believe that the persons were reading from a pre-prepared script. The Tribunal was not persuaded by these materials to change its mind about COY16’s claims, and did not accept any of COY16’s claims of past harm: CB 291-292 at [52]-[54];
(f)was prepared to accept COY16 was only an ordinary BNP supporter as he had claimed in his oral evidence at the Tribunal Hearing. It referred to the evidence given by the witness for COY16 that he had come to know COY16 in Australia, and had become interested in COY16’s story, and noted that the witness said that it did not matter which class you belong to or what your profile is, that anyone who was not from the ruling party in Bangladesh could encounter problems there, and the police will not help. The Tribunal also referred to the extensive country information provided by COY16, noting that all of the information related to instances of violence in relation to high-profile individuals, but none related to COY16 personally. Consequently, the Tribunal was satisfied that COY16 had no or very little visibility as a BNP supporter: CB 292-293 at [55]-[58];
(g)referred to Department of Foreign Affairs and Trade (“DFAT”) country information on Bangladesh which indicated leaders and high profile activists were at higher risk of harm. It accepted that the political environment in Bangladesh was volatile, but did not accept that COY16 had a profile of the kind that would mean that there was a real chance or risk he would suffer serious or significant harm if he returned to Bangladesh. The Tribunal also cited DFAT country information that indicated BNP business owners were subject to extortion, but the Tribunal did not accept that COY16 had suffered any harm and, given his lack of profile as a BNP supporter, it found the chance of COY16 being targeted for harm in the future was remote: CB 293 at [59]-[61];
(h)on the basis of country information that indicated that only high-profile individuals engaged in political activities outside Bangladesh would face harm on return to Bangladesh, was not satisfied that COY16 would face any harm on return to Bangladesh due to being a failed asylum seeker: CB 293-294 at [62]-[63]; and
(i)considering COY16’s claims individually and cumulatively, and for the reasons above, did not accept that there was a real chance or substantial grounds for believing there was a real risk COY16 would suffer serious or significant harm if he returned to Bangladesh for any reason. Accordingly, it found COY16 did not satisfy s 36(2)(a) or (aa) of the Migration Act: CB 294 at [64].
JUDICIAL REVIEW APPLICATION
History of the proceedings
It is necessary to say something about the history of these proceedings. As observed in [1] above the Judicial Review Application was filed on 13 September 2016. It was filed in the Melbourne Registry of the Court (then styled the Federal Circuit Court of Australia). Thereafter:
(a)on 15 March 2017 a Registrar of the Court listed the matter for hearing almost two and a half years later before Judge Wilson in Melbourne on 8 August 2019, and also made the usual orders for the filing and serving of various documents, including submissions;
(b)on 1 May 2019 the parties were notified that due to Judge Wilson’s appointment to the then Family Court of Australia the 8 August 2019 had been adjourned, and advised that the parties would be notified in due course of a new hearing date before another Judge of the Court;
(c)on 13 March 2020 the parties were advised that the matter was to be listed for hearing on 28 May 2020 in Melbourne;
(d)on 19 May 2020 the parties were advised that due to Covid-19 the 28 May 2020 hearing had been “delisted” and would be relisted on a date to be advised;
(e)on 25 June 2020 the matter was listed for hearing before Judge Mercuri in Melbourne on 28 October 2020;
(f)on 22 September 2020 a letter was sent to the parties advising that the hearing on 28 October 2020 had been adjourned to a date to be fixed, without any reason being given;
(g)due to the well-known and acknowledged delays in bringing migration judicial review proceedings to hearing before a Judge in the Melbourne Registry of the Court: AFP21 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCCA 1322 at [25] per Chief Judge Alstergren and Rajmohan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1556 at [7] per Judge Lucev, in June 2021 the matter was re-allocated to the Perth Registry of the Court
(h)on 16 June 2021 the matter was listed for hearing on 21 February 2022 in Perth with a videolink to Melbourne before the Court as presently constituted;
(i)on 23 July 2021 a directions hearing was held and revised programming orders were made by the Court as presently constituted; and
(j)on 21 February 2022 the matter was heard in Perth with a video-link to Melbourne before the Court as presently constituted.
Grounds
COY16’s Judicial Review Application sets out four grounds, which are not numbered, save for the last ground, which is numbered “4”. Each of the grounds is set out hereunder:
(a)the first ground at [22] (“Ground 1”);
(b)the second ground at [49] (“Ground 2”);
(c)the third ground at [69] (“Ground 3”); and
(d)ground 4 at [82] (“Ground 4”).
In each of the grounds the Court has allocated a letter to each particular, and numbers to the first three unnumbered grounds, but otherwise the grounds and particulars are unaltered.
Requirement for jurisdictional error
This Court may set aside the Tribunal Decision upon judicial review if it is affected by jurisdictional error: Migration Act, ss 474 and 476; Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1. An instance where the Tribunal:
(a)identifies a wrong issue;
(b)asks a wrong question;
(c)ignores relevant material; or
(d)relies on irrelevant material
in such a way that the Tribunal’s exercise or purported exercise of power is thus affected resulting in a decision exceeding, or a failure to exercise, any authority or powers given to the Tribunal under the Migration Act, may constitute a jurisdictional error: Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ.
In certain circumstances, a denial of procedural fairness may also constitute jurisdictional error: SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300 (“SZBEL”) at [32]-[33] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ. An instance where the Tribunal has made findings that are legally illogical, irrational and otherwise unreasonable may also amount to jurisdictional error: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248 (“SZMDS”); Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 138 ALD 181 (“Li”).
To constitute jurisdictional error the error must be material in the requisite sense explained in MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 95 ALJR 441 at [2] per Kiefel CJ, Gageler, Keane and Gleeson JJ as follows:
Materiality was explained in Minister for Immigration & Border Protection v SZMTA (2019) 264 CLR 421 to involve a realistic possibility that the decision in fact made could have been different had the breach of the condition not occurred. Existence or non-existence of a realistic possibility that the decision could have been different was explained to be a question of fact in respect of which the plaintiff in an application for judicial review of the decision on the ground of jurisdictional error bears the onus of proof.
The onus is upon COY16 to establish jurisdictional error in the Tribunal Decision: VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [45] per Hill, Sundberg and Stone JJ; Maroun v Minister for Immigration & Citizenship [2009] FCA 1284; (2009) 112 ALD 424.
It is not within the jurisdiction of this Court to review the merits of the Tribunal Decision, or to actually determine the Protection Visa application: Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1 (“Wu Shan Liang”), CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.
Ground 1
Ground 1 is as follows:
In making decision, the Tribunal acted without jurisdiction or in excess of jurisdiction when it failed to take into account relevant considerations.
Particulars
•The applicant never told in the interview he was not an active member of BNP party. He could not provide the membership card because it is not a standard procedure to give away membership cards in Dhaka as there are millions of members of BNP and are more regarded for their active participation in group activities. This can be verified if inquiries are made in the local offices of BNP.
•The applicant has requested for ducuments that will verify his association and membership with BNP .as its is not a standard procedure or never often asked for so will take some time but the applicant will surely will arrange before the hearing
•The tribunal unreasonably raised doubt over the applicant's involvement with the BNP Group as also his relatives and other family members are also dominant and active leader. The Department and the Tribunal misunderstood or misconstrued the facts. Migration advisor for the Applicant in his submission very clearly clarified the applicant's involvement with the group as a member, Applicant's activities and role in the Party. Also applicant’s brot her was an active and long-time member of the BNP Party.
•Applicant claims that the ruling party Awami League is a Violent-Criminal and corrupt Groups in Bangladesh which are active. As the applicant stated earlier that Applicant’s shop was attacked with several other shops and demolished as well.
•And the for the safety of his and his family’s life from this Awami league Group of Criminals The applicant together with his brother had to flee. When it became more worst, the applicant decided to leave Bangladesh.
•The applicant argues that the Department and the Tribunal asked many irrelevant questions to test the credibility of his evidence.
•The Department and the Tribunal found inconsistency because the questions were asked in such a manner for which the applicant was not prepared. He was nervous, stressed and confused at the time of making Statutory Declaration and also at the time of interview with the Department and Lawyers who helped him to prepare the application
•The Tribunal raised the question about telling some things now, and raised the question why he did not mention earlier in the Original Application. The applicant did not remember each and every detail as it happened few years back and was in a very severely stressed out mental state.
•The Department has accepted that he was very confused. He was himself not understanding what answer he is giving for which questions. The Department told the applicant first understand the question then give answer. The applicant was totally nervous.
•The applicant believes he was denied procedural fairness when the hearing was conducted not freely and fairly.
Consideration - Ground 1
Particular (a)
COY16 expressly stated in his statutory declaration, which was part of his Protection Visa application, that he and his father were members and supporters of the BNP: CB 78 at [3] and 287 at [14]. There is, therefore, no basis for COY16’s contention that he never claimed he was not an active BNP member, because he put sworn evidence to this effect before the Department in his Protection Visa application. At both the Delegate Interview and the Tribunal Hearing he stated that he was just a “regular supporter” and “not an official member”: CB 121 and 289-290 at [42]. The Tribunal used the inconsistent evidence before it to support its finding (made on other grounds as well) that COY16 was not a reliable witness: CB 289-290 at [42]. There is no evidence before the Court to support COY16’s contention that both the Delegate and the Tribunal misunderstood or mischaracterised his evidence in this regard. Indeed the Tribunal ultimately found that given the nature of politics in Bangladesh it accepted COY16’s claim that it was necessary to at least support either the BNP or the League: CB 292 at [55], but that COY16 had “no or very little visibility as a BNP supporter”: CB 293 at [58].
The Court also notes that COY16 asserts in:
(a)particular (a) that “[h]e could not provide the membership card because it is not a standard procedure to give away membership cards in Dhaka”; and
(b)particular (b) that he “has requested for documents that will verify his association and membership with BNP”,
both assertions being consistent with COY16’s statement in his statutory declaration that he is a member of the BNP.
The invitation to the Tribunal to make inquiries “in the local offices [in Bangladesh] of the BNP” about membership status and support activities misconceive the role of the Tribunal. The Tribunal’s task was to conduct a review, not an inquiry, and not to make its own inquiries about COY16’s claims, other than in respect of the most straightforward matters: Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123; (2009) 259 ALR 429; (2009) 111 ALD 15 (“SZIAI”) at [25]-[27] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ, and it was not obliged to conduct an inquiry to discover whether COY16 might have been able to better put his case: Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41; (2010)183 FCR 575; (2010) 114 ALD 666 at [36] per Keane CJ and [49] per Emmett J.
There is nothing in particular (a) which is indicative of jurisdictional error in the Tribunal Decision.
Particular (b)
Particular (b) is no more than a statement of intention with respect to COY16’s intention to procure certain documents concerning his BNP “association and membership”, and how long it will take those documents to be procured. As such, it does not assert jurisdictional error in the Tribunal Decision. Insofar as particular (b) is a statement that COY16 intends to obtain further documents attesting to his BNP membership, presumably for the purpose of putting before this Court, that misconceives the role of this Court on judicial review, which is to ascertain if the Tribunal Decision is affected by jurisdictional error not to undertake further merits review, which is impermissible: Wu Shan Liang, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611; (1999) 73 ALJR 746; (1999) 162 ALR 577; (1999) 54 ALD 289 (“Eshetu”) at [55]-[56] per Gleeson CJ and McHugh J.
There is nothing in particular (b) which is indicative of jurisdictional error in the Tribunal Decision.
Particular (c)
In asserting that the Tribunal “unreasonably raised doubt over the applicant’s involvement with the BNP” the applicant does not, and has not, specified how it is that the Tribunal acted unreasonably. As set out in relation to particular (a) the Tribunal was entitled to have regard to COY16’s evidence, and that in relation to COY16’s involvement in the BNP it was conflicting, as part of the reason for finding that the COY16 was not a reliable witness. Moreover it is clear that the Tribunal had regard to COY16’s claims and evidence (including evidence from a witness on behalf of COY16) about his involvement in the BNP, and the nature of politics in Bangladesh, making it necessary for a person to support either the BNP or the League, in making findings about the nature of COY16’s involvement in politics, and his political profile, or more particularly lack thereof: CB 287 at [14]-[15], 288 at [32]-[33], 289-290 at [42], 292-293 at [55]-[58], 293 at [61] and 294 at [63].
The Tribunal was clearly cognisant of the claims made by COY16’s migration agent, setting them out in some detail, and relevantly the particular submissions going to the consequences of COY16 being a supporter of the BNP: CB 288 at [32]-[33].
In certain circumstances unreasonableness, and more correctly, legal unreasonableness, may constitute jurisdictional error: Li at [63]-[76] per Hayne, Kiefel and Bell JJ. Reasonableness is an implied condition on the valid exercise of the Tribunal’s statutory duty: Li at [92] per Gageler J. What is considered the legal standard of reasonableness is predicated on the scope and purpose of the statutory functions conferred upon the Tribunal under the Migration Act: Li at [67] and [74] per Hayne, Kiefel and Bell JJ.
The relevant principles in relation to legal unreasonableness were conveniently summarised by the Federal Court in Pandey at [41] per Wigney J and included the following:
…
(a)The requirement of reasonableness flows from or is connected with an implied legislative intention that a discretionary power that is statutorily conferred must be exercised reasonably: Li at [29], [63], [88]; Singh at [43].
(b)Legal unreasonableness can be a conclusion reached by a supervising Court after the identification of an underlying jurisdictional error in the decision-making process. Or it can be a conclusion reached without necessarily identifying another jurisdictional error: Li at [27]-[28], [72]; Singh at [44]. In the latter case unreasonableness may be taken to be unreasonableness from which an undisclosed error may be inferred: Li at [27], [68]; Singh at [44].
(c)Unreasonableness can be inferred where the decision appears to be arbitrary, capricious, without common sense or “plainly unjust”: Li at [28], [110]; Singh at [44].
(d)In those circumstances, where reasons are given, the supervising Court is concerned with seeing if there is an evident, transparent and intelligible justification within the decision-making process: Li at [105]; Singh at [44]-[45]. The intelligible justification must lie within the reasons given by the decision-maker: Singh at [47].
(e)Regard can also be given to the outcome of the decision: whether the “decision falls within a range of possible, acceptable outcomes which are defensible in respect of fact and law”: Li at [105] (Gageler J quoting Dunsmuir v New Brunswick [2008] 1 SCR 190 at 220-221; Singh at [44]-[45].
(f)The legal standard of reasonableness and the indicia of legal unreasonableness will need to be found in the scope, subject and purpose of the particular statutory provisions in issue in any given case: Li at [67]; Singh at [48]. In the case of discretionary powers vested in the Tribunal, the location of these powers in the statutory scheme, as aids to the performance of a review function, is important: Singh at [49].
…
(j)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: Li at [30], [66]; Singh at [47]. The test of legal unreasonableness is stringent: Li at [113].
The Tribunal’s consideration of the facts was detailed and comprehensive. The Tribunal set out the written and oral evidence provided to it by COY16, and addressed the relevant aspects thereof. The Tribunal also addressed the relevant criteria under, and state of satisfaction required by, the Migration Act: ss 36 and 65. It cannot be said that the Tribunal’s consideration of the facts and the relevant criteria was arbitrary, capricious, without common sense or unjust, and the reasons given have an evident, transparent and intelligible justification. It is not the Court’s view that a differently constituted Tribunal would have been likely to have dealt differently with the matter, or some aspects thereof, and it cannot be said that the conclusions reached in relation to factual matters, and the resultant findings, in the Tribunal Decision were ones which no other rational decision-maker might have made: Pandey at [41(a)-(f)] per Wigney J (and cases there cited); SZMDS at [130]-[131] per Crennan and Bell JJ.
COY16’s assertion that the Tribunal “misunderstood or misconstrued the facts” has not been made out, and it amounts to little more than “an emphatic way of expressing disagreement” with the reasoning in the Tribunal Decision: SZMDS at [124] per Crennan and Bell JJ. The assertion is reflective of the fact that what COY16 appears to seek is impermissible merits review: Wu Shan Liang, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; Eshetu at [55]-[56] per Gleeson CJ and McHugh J.
In all the circumstances, there is nothing in particular (c) which is indicative of jurisdictional error in the Tribunal Decision.
Particulars (d) and (e)
Particulars (d) and (e) are just claims and assertions of fact which reflect matters put to the Tribunal, and as such do not allege, let alone establish, any jurisdictional error in the Tribunal Decision.
Particular (f)
Particular (f) is a bald assertion. It is unsupported by any evidence as to what occurred at the Tribunal in terms of questions asked, or specificity as to what questions were asked and why those questions were allegedly irrelevant. In the absence of a transcript of the Tribunal Hearing, or some other form of reliable evidence, the best evidence of what occurred at the Tribunal is the record contained in the Tribunal Decision: Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41; (2010) 183 FCR 575; (2010) 114 ALD 666 at [59] per Perram J; Mathai & Ors v Minister for Immigration and Border Protection [2016] FCCA 578 at [20] per Judge Lucev. In that regard, as the Court has noted above at [33], the reasons given in the Tribunal Decision have an evident, transparent and intelligible justification, and the resultant findings were ones which any rational decision-maker might have made.
Insofar as particular (f) complains about the Tribunal asking questions intended to test COY16’s credibility, the Tribunal was entitled to test COY16’s credibility, vigorously if necessary: Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 75 ALJR 982; (2001) 179 ALR 425 at [30] per Gleeson CJ, Gaudron and Gummow JJ, and in the absence of any evidence, save for the Tribunal Decision, as to what actually occurred at the Tribunal Hearing, the Tribunal’s questioning of COY16’s credibility cannot be impugned.
In the above circumstances, there is nothing in particular (f) which is indicative of jurisdictional error in the Tribunal Decision.
Particulars (g), (h) and (i)
Particulars (g), (h) and (i) can be considered together as they all relate to COY16’s perception of the process leading to the Tribunal Decision. In this regard it is relevant to note at the outset that the Tribunal expressly accepted that the Tribunal hearing process could be stressful for applicants and omissions and inconsistencies in the evidence could naturally arise in the recounting of claims due to the passage of time: CB 291 at [49]. The Tribunal was therefore cognisant of the types of difficulties which might arise generally for an applicant in COY16’s position.
COY16 does not explain how it was that he was asked questions, whatever they were, for which he said was not prepared, and has provided no evidence to support the contention that he was unprepared for the questions which he was asked. COY16 does not explain, for example, how it is that he was unprepared for questioning at the Tribunal hearing when the Delegate’s Decision at CB 116-137, which the Tribunal Review Application sought to review, dealt with many of the same questions as would ultimately be dealt with by the Tribunal, including the question of BNP membership and activities: CB 121-123, 127 and 130-131, and his credibility: CB 127. In any event, even if COY16 was unprepared for the questions that he was asked in the Delegate Interview and the Tribunal Hearing that is not, without more, indicative of jurisdictional error in relation to the Tribunal Decision.
In relation to assertions that he was nervous, stressed and confused, the Tribunal specifically observed that COY16 was not “…exhibiting signs of stress or discomfort during the hearing and was not persuaded by this explanation for his inconsistent accounting of such significant events”: CB 290-291 at [47]. Furthermore, there was no medical evidence tendered to support such assertions, either before the Tribunal or to this Court in relation to his appearance before the Tribunal. COY16 was also offered a rest break by the Tribunal which he opted to not take. COY16’s assertions concerning his physical and mental state, particularly as it relates to the Tribunal, is not made out on the evidence, and fails to demonstrate any failure on the part of the Tribunal to afford him a real and meaningful opportunity to participate in the Tribunal Hearing or any breach of s 425 of the Migration Act.
In the above circumstances, there is nothing in particulars (g), (h) or (i) which is indicative of jurisdictional error in the Tribunal Decision.
Particular (j)
COY16 does not explain how it is that the Tribunal Hearing was not conducted “freely and fairly”, and there is no transcript of the Tribunal Hearing in evidence which might be used to support this allegation.
Procedural fairness obligations are imposed on the Tribunal by Pt 7, Div 4 of the Migration Act, and those obligations are taken to be an exhaustive statement of the natural justice hearing rule: Migration Act, s 422B; Li at [56]-[58] per Hayne, Kiefel and Bell JJ; WZATN v Minister for Immigration and Border Protection [2014] FCCA 861.
On the materials before it the Court observes as follows:
(a)the Tribunal complied with its statutory obligations under ss 425 and 425A of the Migration Act by validly inviting COY16 to the Tribunal Hearing on 11 July 2016;
(b)COY16 attended the Tribunal Hearing and gave evidence in support of his claims, as did a witness on his behalf: CB 186-188;
(c)the Tribunal Hearing lasted over two and a half hours and COY16 was assisted by a Bengali interpreter: CB 186-188;
(d)there is no reference in the Tribunal Decision to any complaint made by COY16 during the Tribunal Hearing about the manner or form of the Tribunal Hearing;
(e)there is no evidence of any failure by the Tribunal to put relevant matters to, or discuss relevant matters with, COY16, and there are in fact numerous instances in the Tribunal Decision where the Tribunal specifically raised or discussed with COY16 concerns that the Tribunal had with claims and evidence, including the concerns it had with his credibility, and it afforded him the opportunity to give evidence and present arguments on these issues, which he did: see, for example, at CB 189-191 at [42], [45], [47] and [48]; and
(f)in finding that COY16 was not a person in respect of whom Australia had protection obligations, the Tribunal relied upon COY16’s written evidence provided to the Department, his written and oral evidence provided to the Tribunal, and independent country information, all of which fell within the exceptions to information in ss 424A(3)(a), (b) and (ba) of the Migration Act respectively, and there was, therefore, no breach of s 424A of the Migration Act.
In the above circumstances, the Tribunal complied with its procedural fairness obligations under Pt 7, Div 4 of the Migration Act, and no denial of procedural fairness by the Tribunal in respect of this matter has been established. It follows that particular (j) alleging a denial of procedural fairness by the Tribunal in respect of COY16 is not made out, and does not establish jurisdictional error in the Tribunal Decision.
Conclusion – consideration - Ground 1
Having regard to the reasons at [23]-[47] above none of the particulars in Ground 1 establish jurisdictional error in the Tribunal Decision. Likewise, if considered collectively, none of the particulars in Ground 1 establish jurisdictional error in the Tribunal Decision, and in particular do not establish that the Tribunal acted without, or in excess of, jurisdiction, or that the Tribunal failed to take into account relevant considerations as alleged by Ground 1.
Ground 2
Ground 2 is as follows:
The tribunal made a jurisdictional error when it made decision in which the finding of reasons is confused. The Tribunal did not apply Real Risk Chance Test used in the Refugee Convention under Australian law.
Particulars
(a)The applicant claims that the Tribunal and the Department formed the opinion based on the limited information about the possible harm to the applicant. The Tribunal ignored all other independent information about all other the shop attacks together with the applicants on the Applicant's village. The tribunal made unreasonable doubt about applicant's claims and said in reasoning that he was never attacked nor his shop was demolished or if he paid any ransom to Awami league without any substantial evidence provided yet they accept the fact that similar incidents has happened in the local area and the current govt is not helping the oppressed as it is ruled by Awami League.\
(b)The applicant confusion about the attack dates has been given more importance rather than the credibility to the fact that the applicant did cited that it did happened in 2011 and in the beginning he was not asked much details so he did not elaborated about his dad selling the land and also borrowing the remaining amount for the extortion money.
(c)The Department and the Tribunal made opinion with the closed mind. The applicant claims that he left Bangladesh because of continuous attacks and torture by the members of the Awami Group. He had no protection from the local authorities because his attempts to get help from the local police failed because as Awami league is ruling as Government since 2009 .And they are corrupt and exercise wrong use of powers in all authorities in Bangladesh. They have not given an election which was supposed to be in 2013 and since then everyone is scared of their group members and supporters. This information was never checked by the tribunal even as the tribunal has accepted that the political situation in Bangladesh is unrest for a long period of time.
(d)The tribunal did not account any evidence of real chance of risk despite the facts his father had to sell the land and he had to flee in Dhaka. It is unfair and that the tribunal is suggesting that he could have escaped in any other area which is common for other people involved in similar situation. The tribunal is saying that it is possible and giving possible solutions rather than addressing the fact that it is a life threating matter and decisions are taken impulsively in a delicate state of mind. Also Dhaka is the capital city and the mostly populated state of Bangladesh so what are the chances that the applicant will be safe in other local if he can be easily traced in Dhaka.
(e)The tribunal came to conclusion that it is easier to secure a job because the applicant stated he found the job in a week which is simply illogical. The applicant was not asked how he found the job which actually is through his father's connections with the manger there who given his life threatening situation offered to help the family. Also the Youth unemployment rate in Dhaka as per the World Bank and International Labour Organisation was 10.13% given the stats carried out in 2013.Thus the tribunal findings and resources are wrong and questionable.
Consideration – Ground 2
Was the finding of reasons confused?
As indicated at [33] above the Tribunal:
(a)considered the facts in detail and comprehensively;
(b)set out the written and oral evidence provided to it by COY16, and addressed the relevant aspects thereof;
(c)addressed the relevant criteria under, and state of satisfaction required by, the Migration Act: ss 36 and 65;
(d)gave reasons which have an evident, transparent and intelligible justification;
(e)considered the facts and the relevant criteria in a manner that was not arbitrary, capricious, without common sense or unjust; and
(f)reached conclusions in relation to factual matters, and the resultant findings, which were ones which another rational decision-maker might equally, and probably would, have made.
In the circumstances set out in the previous paragraph there is no basis for the assertion that the finding of reasons is confused in the Tribunal Decision. The Court adds that, alternatively, there is no basis for any finding that the reasoning and findings in the Tribunal Decision were confused.
Did the Tribunal apply the real chance test, particulars (a)-(e) and impermissible merits review
The Tribunal identified that the issue in this matter was whether there was a real chance that COY16 would suffer serious harm on return to Bangladesh or whether there were substantial grounds for believing there was a real risk he would suffer significant harm if removed to Bangladesh: CB 286-287 at [4]-[9]. The Tribunal, in a conclusive answer to the issue identified, found that there was no real chance or real risk of serious or significant harm: CB 294 at [64].
Particulars (a) to (e) purport to be particulars of the assertions in Ground 2 that, first, the finding of reasons is confused, and, second, that the Tribunal did not apply the real risk or real chance test when making findings. Particulars (a) to (e) are not particulars as such, but rather submissions, and for the most part submissions on the merits more appropriately made to the Tribunal. Particulars (a) to (e) therefore primarily seek to have this Court undertake impermissible merits review of the Tribunal Decision: Wu Shan Liang, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; Eshetu at [55]-[56] per Gleeson CJ and McHugh J, save as further discussed below in relation to particulars (a), (b), (c) and (e), and do not establish jurisdictional error in the Tribunal Decision.
Particular (a) – failure to consider relevant material
COY16 asserts in particular (a) that the Tribunal’s “opinion was based on the limited information about the possible harm to” COY16, and that it “ignored all other independent information” about shop attacks in COY16’s village. This might be considered to be a failure to consider relevant material, which if established could constitute jurisdictional error, in an appropriate case. In this case, however, COY16’s credibility was called into question by the Tribunal, and he was found not to be a reliable witness: CB 289 at [41], and his claims were not believed having regard to his own evidence of past harm which the Tribunal did not accept, seemingly in any respect: CB 291 at [49] and 292 at [54].
In the Court’s view the determinative issue in the Tribunal Decision was COY16’s credibility. Findings as to credibility are generally a matter for the Tribunal: Re The Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405; (2000) 168 ALR 407; (2000) 58 ALD 609 (“Durairajasingham”) at [67] per McHugh J, but may give rise to jurisdictional error where the credibility findings were formed in circumstances where an applicant was denied procedural fairness, or where the credibility findings were based upon no logical or probative basis or were unreasonable: CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496; (2016) 70 AAR 413 (“CQG15”) at [36]-[44] per McKerracher, Griffiths and Rangiah JJ; ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; (2016) 250 FCR; (2016) 154 ALD 221 (“ARG15”) at [83] per Griffiths, Perry and Bromwich JJ.
The Court notes that the Tribunal set out in detail the claims and submissions made by COY 16, including post hearing submissions: CB 287-289 at [10]-[37], and says it considered COY16’s claims individually and cumulatively: CB 294 at [64].
For the reasons set out at:
(a)[44]-[47] above the Tribunal Decision cannot be impugned on the basis of a denial of procedural fairness, and the Court further notes that the credibility of COY16’s claims was in issue in the Delegate’s Decision: CB 121, where the Delegate found that COY16 had “not been truthful in his evidence … about his circumstances in Bangladesh”, and did not accept his allegation about threats, extortion or beatings by the League: CB 127; and
(b)[33] and [50] above the Tribunal Decision was based on reasoning which was logical, probative and was not unreasonable in the sense summarised in Pandey: CQG15 at [36]-[44] per McKerracher, Griffiths and Rangiah JJ; ARG15 at [83] per Griffiths, Perry and Bromwich JJ, and which provided a rational and logical foundation for the Tribunal’s credibility findings, and in turn, overall conclusion that COY16 had not suffered serious harm in the past, and would not suffer significant harm in the future, in Bangladesh. The Tribunal thus properly engaged with the evidence and came to rational and logical conclusions that were open to it on the evidence: SZMDS at [135] per Crennan and Bell JJ.
In the above circumstances it cannot be said that the Tribunal failed to consider relevant material, and particular (a) does not establish jurisdictional error in the Tribunal Decision in this respect.
Particular (b) – credibility
To the extent that the submissions in particular (b) seek to impugn the Tribunal’s findings with respect to COY16’s credibility, they fail to do so. Subject to what is said at [55] above, credibility is generally a matter for the Tribunal: Durairajasingham at [67] per McHugh J, and for the reasons set out at [33], [50] and [56]-[57] above the Tribunal’s credibility findings in relation to COY16 were open to be made by it. Particular (b) does not therefore establish jurisdictional error in the Tribunal Decision insofar as it seeks to challenge the Tribunal’s credibility findings concerning COY16.
Particular (c) – bias
COY16 complains that the Tribunal “made opinion with the closed mind”. This is an allegation of bias on the basis that the Tribunal came to the Tribunal Hearing with a pre-determined view of the matter and was not open to be persuaded otherwise.
Bias is a serious allegation which must be firmly and distinctly made and clearly proven: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507; (2001) 75 ALJR 679; (2001) 178 ALR 421; (2001) 65 ALD 1 (“Jia Legeng”) at [69] per Gleeson CJ and Gummow J.
The detail of particular (c) does not constitute proof of bias. Rather they are claims about the political situation in Bangladesh, and an allegation that the Tribunal failed to check whether the League had conducted an election in 2013 and an assertion that since then “everyone is scared of their group members and supporters”. The Tribunal considered the political situation in Bangladesh by reference to the evidence both oral and written put on behalf of COY16, and country information from DFAT and the UK Home Office: CB 292-293 at [55]-[61], and concluded that the “political environment in Bangladesh is volatile” but found that COY16 did not have a political profile or visibility as a BNP supporter such that he would be at risk of suffering serious or significant harm if returned to Bangladesh: CB 293 at [60]-[61]. In the circumstances, the detail of particular (c) is no more than an attempt to have this Court engage in impermissible merits review, contrary to long-standing and accepted principles: Wu Shan Liang, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; Eshetu at [55]-[56] per Gleeson CJ and McHugh J.
There is no evidence or indication that the Tribunal had a pre-existing state of mind which disabled it from undertaking, or rendered it unwilling to undertake, any proper assessment of relevant materials: Jia Legeng at [35] and [71]-[72] per Gleeson CJ and Gummow J. The Court’s view is that the Tribunal considered the Judicial Review Application in a proper and entirely orthodox manner (and in that regard see, for example, the findings and observations made at [33], [50], [56]-[57] and [59] above).
In all the circumstances, there is nothing in the allegation of bias in particular (c) which establishes jurisdictional error in the Tribunal Decision
Particular (e) – illogicality
The assertion in particular (e) that the Tribunal’s finding concerning the availability of a job for COY16 was illogical seeks to establish the point by rearguing it, and thus inviting the Tribunal to undertake impermissible merits review: Wu Shan Liang, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; Eshetu at [55]-[56] per Gleeson CJ and McHugh J.
It is not evident from the Tribunal Decision that the matters adverted to in particular (e) concerning the alleged involvement of COY16’s father in assisting with obtaining employment for COY16 or the very generalised information concerning youth unemployment rates in Dhaka were actually put before the Tribunal by COY16. But, even if they were, the objective fact is that COY16 told the Tribunal that it took a week for him to find employment when he first came to Dhaka. It was therefore open for the Tribunal to find that COY16 “was easily able to find employment in Dhaka”: CB 291 at [51], and for the Tribunal not to be persuaded that COY16 did not leave his employment when the League discovered where he was working because it was otherwise difficult to obtain employment in Dhaka. To establish illogicality for the purposes of establishing jurisdictional error requires that “extreme” illogicality must be demonstrated, “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”: Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99; (2013) 302 ALR 672; (2013) 136 ALD 41 at [148] per Robertson J; SZMDS at [131] and [135] per Crennan and Bell JJ; CQG15 at [60] per McKerracher, Griffiths and Rangiah JJ. In this case COY16’s allegation of illogicality is not made out, and even if some illogicality were present (which is not the case) it would not meet the high standard required to establish illogicality for the purposes of jurisdictional error.
In all the circumstances, there is nothing in the allegation of illogicality in particular (e) which establishes jurisdictional error in the Tribunal Decision.
Conclusion – consideration - Ground 2
Having regard to the reasons at [50]-[67] above none of the particulars in Ground 2 establish jurisdictional error in the Tribunal Decision. Likewise, if considered collectively, none of the particulars in Ground 2 establish jurisdictional error in the Tribunal Decision.
Ground 3
Ground 3 is as follows:
The Tribunal made a jurisdictional error when it did not consider his claims under the Complementary Protection Clauses.
Particulars
(a)The applicant claims he would satisfy the criterion for protection under the Complementary protection arrangements as there are substantial grounds to believe there is a real risk that would suffer significant harm on return to Bangladesh. The applicant claims that the Tribunal blindly follow the decision of the Delegate.
(b)The Tribunal did not consider that how the applicant came to Australia by Boat taking high risk of life. The tribunal ignored intentionally the relevant consideration related with complementary protection set out in s.36(2)(a). He is subjected to a significant harm as severe as being attacked and killed by Awami league members.
(c)The tribunal ignored real test of persecution and made decision with closed mind.
Consideration – Ground 3
Failure to consider claims for the purposes of complementary protection provisions
In this case the Tribunal correctly set out the complementary protection criterion under s 36(2)(aa) of the Migration Act at CB 286 at [7]. At CB 294 at [64] the Tribunal, having regard to its findings, found that COY16 did not satisfy the complementary protection criterion under s 36(2)(aa) of the Migration Act. The Tribunal referred to, and applied to the relevant facts, the test for complementary protection, that of a real risk of significant harm, in the Tribunal Decision: CB 286 at [7], 287 at [9], 293 at [60]-[61] and 294 at [63]-[64], and otherwise referred to the relevant statutory provision concerning the test for complementary protection - s 36(2)(aa) of the Migration Act - on a number of occasions: CB 286 at [4] and [7], 289 at [38] and 294 at [63]-[64].
The assertion in Ground 3 (including at particular (b)) of a failure to consider COY16’s claims for the purposes of the complementary protection provisions cannot, in the circumstances set out in the previous paragraph, be made out, and does not establish jurisdictional error in the Tribunal Decision.
Particular (a) - claim of satisfaction of complementary protection criteria
COY16’s claim at particular (a) that he satisfies the complementary protection criteria because there are substantial grounds to believe there is a real risk that he would suffer significant harm on return to Bangladesh wholly misconceives the role of this Court. This Court, exercising jurisdiction under s 476 of the Migration Act, does not consider whether an applicant actually satisfies the relevant criteria for a visa, but rather whether the Tribunal Decision is affected by jurisdictional error: Wu Shan Liang, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; Eshetu at [55]-[56] per Gleeson CJ and McHugh J. It is therefore irrelevant for the purposes of the Judicial Review Application that COY16 claims to satisfy the complementary protection criteria, because that is not a matter within the Court’s jurisdiction, and is a claim which cannot, of itself, establish jurisdictional error in the Tribunal Decision.
Particular (a) - whether failure to review – whether Delegate’s Decision blindly followed
COY16 asserts that the Tribunal “blindly follow[ed]” the Delegate’s Decision. If such an assertion were to be made out it would establish jurisdictional error by reason a failure to by the Tribunal to undertake its task of review: Migration Act, s 414(1); SZIAI at [25] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ.
An examination of the Delegate’s Decision and the Tribunal Decision shows that the two decisions are very different. The Delegate’s Decision runs to 22 pages: CB 116-137, the Tribunal Decision to 10 pages: CB 285-294. The Delegate’s Decision deals with factual matters in more detail than the Tribunal Decision, and relies on a broader range of country information, including, for example, a greater number of DFAT reports: CB116 , 118, 122 fn 4, 124 , 128 fn 7, 130 fn 15, 131 fn 16 and 132 fnn 18 and 19, and additional reports from the Immigration and Refugee Board of Canada: CB 116 fn 1, 122 fnn 2 and 3 and 124 , the United Kingdom Home Office and the United Kingdom Border Agency: CB 116 fn 1, 122 fn 4, 124 , and 133 fn 21, the United States Department of State: CB 116 fn 1 and 130 fn 12, an International Organisation for Migration Report: CB 128 , 133 fn 20, university research: CB 129 fn 8, and various British, South Asian and Bangladeshi news reports: CB 130 fnn 10 and 11, not referred to in the Tribunal Decision. The Delegate’s Decision also deals with the issue of fraudulent documents which the Tribunal did not deal with: CB 122-123. The Tribunal Decision dealt with post-Tribunal Hearing submissions which were not before the Delegate, but which the Tribunal read and took account of: CB 289 at [37].
The conclusion reached by both the Delegate and the Tribunal was essentially to the same effect, namely, as expressed by the Delegate, that COY16 was not a person to whom Australia owed protection obligations: CB 137, and as (differently) expressed by the Tribunal, that COY16 did not satisfy the criterion under s 36(2)(a) or (aa) of the Migration Act: CB 294 at [64]. The manner and form of the reaching of that conclusion in each of the Delegate’s Decision and the Tribunal Decision was, however, so different (or at the very least sufficiently different) to belie any assertion that the Tribunal “blindly follow[ed]” the Delegate in making the Tribunal Decision. Therefore, the assertion that the Tribunal “blindly follow[ed]” the Delegate in making the Tribunal Decision cannot, in the circumstances set out in this and the previous paragraph, be made out, and does not establish jurisdictional error in the Tribunal Decision.
Particular (b) - travel by boat
COY16 asserts that the Tribunal did not consider the manner of his coming to Australia, namely, by risking his life in coming to Australia by boat.
COY16 did not, however, claim to fear harm on the basis of this fact, and the Tribunal did not dispute that COY16 had travelled by boat. The fact that COY16 risked his life travelling does not assist COY16 to establish any arguable case of jurisdictional error in the Tribunal Decision.
Particular (c) - test for persecution
COY16’s contention that the Tribunal “ignored the real test of persecution” is without foundation. The Tribunal expressly referred to the nature of the persecution required under the Refugees Convention: CB 286 at [5]-[6], and the language that the Tribunal used throughout the Tribunal Decision suggests that it did not ask itself a wrong question or apply the wrong statutory test when considering COY16’s claims. Indeed, the contrary is the case: see also [33] and [50]-[52] above, and in the circumstances this assertion does not establish jurisdictional error in the Tribunal Decision.
Particular (c) – bias
COY16 asserts, once again: see [60] above, that the Tribunal made the Tribunal Decision with a “closed mind”.
For the reasons set out at [61]-[64] above this assertion is not made out and does not establish jurisdictional error in the Tribunal Decision.
Conclusion – consideration - Ground 3
Having regard to the reasons at [70]-[80] above Ground 3 does not establish jurisdictional error in the Tribunal Decision.
Ground 4
Ground four (the only ground actually numbered) is as follows:
4. Jurisdictional error has been made.
The tribunal doubts the applicant's claim without substantive evidence and reach mistaken conclusion.
Particulars
(a)The Tribunal failed to put to the applicant for comment the independent country information on which it relied in making its decision.
(b)The Tribunal erred by making findings without supporting evidence and findings which were illogical and inconsistent.
(c)The Tribunal failed to consider that if the applicant is deported from Australia he will be at risk of suffering persecution within the meaning of the 1951 Convention relating to the status of Refugees.
Consideration – Ground 4
Without substantive evidence leading to mistaken conclusion
COY16 asserts that the Tribunal rejected or doubted his claims “without substantive evidence and reach mistaken conclusion”.
COY16’s assertion misconceives the proper role of the Tribunal. In BVB15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 413 at [76(a) and (b)] per Banks-Smith J the Federal Court observed that:
76. The following overarching principles are uncontentious:
(a)the proceedings before the Tribunal are not inter partes but inquisitorial, and the Tribunal is not in the position of a contradictor: SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; (2007) 232 CLR 189 at [30]; Abebe v Commonwealth of Australia [1999] HCA 14; (1999) 197 CLR 510 at [187];
(b)it is for an applicant to advance whatever evidence or argument they wish to advance in support of their claim that they are entitled to a visa. The Tribunal must then determine whether that claim is made out: Abebe at [187];
COY16 therefore had to advance whatever evidence or argument he wished to advance in support of his Protection Visa application, and the Tribunal had to decide whether the claim was made out, which is what the Tribunal did in COY16’s case, and it was not for the Tribunal to provide “substantive evidence” as to why it was not satisfied of COY16’s claims. Furthermore, the Tribunal was not required to uncritically accept all or any of the claims made by COY16, or have rebutting evidence before it could decide not to accept COY16’s claims: Minister for Immigration & Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559; (1997) 71 ALJR 743; (1997) 144 ALR 567; [1997] FCA 22; (1997) 48 ALD 481, CLR at 596 per Kirby J; Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437; (1994) 124 ALR 265; (1994) 35 ALD 1, FCR at 451 per Beaumont J: EGU17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 153 at [36]-[37] per Judge Given.
In the circumstances it is therefore misconceived to assert that the Tribunal rejected or doubted COY16’s claims “without substantive evidence”, and to then further assert that the Tribunal reached a “mistaken conclusion” is equally misconceived, or at the very least, a claim for impermissible merits review: Wu Shan Liang, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; Eshetu at [55]-[56] per Gleeson CJ and McHugh J.
For the above reasons COY16’s assertion that the Tribunal rejected or doubted his claims “without substantive evidence and reach mistaken conclusion” is not made out and does not establish jurisdictional error in the Tribunal Decision.
Particular (a) - failure to put country information
COY16 asserts that the Tribunal failed to put to him for comment country information which it relied upon in making the Tribunal Decision.
By reason of the exception in s 424A(3)(a) of the Migration Act the Tribunal was not required, under s 424A(1) of the Migration Act, to put to COY16 for comment country information that was not specifically about him or a class of persons of which COY16 was a member: Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 264; (2004) 140 FCR 572; (2004) 84 ALD 325 at [66]-[71] per Beaumont J and [138] per Merkel and Hely JJ; WAJW v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 330 at [44]-[46] per RD Nicholson, Jacobson and Bennett JJ, and VJAF v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 178 at [11]-[16] per Black CJ, Sundberg and Bennett JJ.
In the above circumstances the assertion in particular (a) that the Tribunal failed to put country information, which it relied upon in making the Tribunal Decision, to COY16 for comment, is not made out and does not establish jurisdictional error in the Tribunal Decision.
Particular (b) – findings without supporting evidence and illogical and inconsistent findings
COY16’s assertion that the Tribunal erred by making findings without supporting evidence and which were illogical and inconsistent cannot be made out for the reasons set out at [33], [37], [46(e) and (f)], [50]-[57], [65]-[67] and [70]-[71] above, and therefore do not establish jurisdictional error in the Tribunal Decision.
Particular (c) – failure to consider risk of suffering persecution if deported
At CB 292-294 at [55]-[64] the Tribunal considered the question of whether COY16 might be persecuted and suffer harm if he was returned to Bangladesh. The assertion to the contrary by COY16 in particular (c) is therefore not made out on the facts (and see also [13(f) and (g)], [70]-[71] and [78] above), and does not establish jurisdictional error in the Tribunal Decision.
Conclusion – consideration - Ground 4
Having regard to the reasons at [83]-[92] above Ground 4 does not establish jurisdictional error in the Tribunal Decision.
Jurisdictional error otherwise
The Court is cognisant that where a party is self-represented the Court must endeavour to remain alert to the possibility of jurisdictional error being made by the Tribunal: MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392; (2015) 238 FCR 158 at [100] and [112] per Mortimer J; Ludgero v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1060; (2021) 358 FLR 215 at [26] per Judge Lucev.
At hearing COY16 asserted that he was not prepared for the Tribunal Hearing, and that he did not receive sufficient notice of the Tribunal Hearing, and did not have a lawyer to represent him.
There is no entitlement to legal representation before the Tribunal: SZQFS v Minister for Immigration and Citizenship [2011] FCA 1244 at [30]-[31] per Flick J. The Court however notes that, apart from the time of the Tribunal Hearing itself, COY16 was represented by two different firms of lawyers/migration agents both before and after the Tribunal Hearing: CB 145, 189-190 and 193, and that COY16 was also permitted to, and did, make further written submissions after the Tribunal Hearing: CB 198 and 202-278. The ability to make further written submissions meant the COY16 had the capacity to deal with any issues of concern to him arising out of the Tribunal Hearing, or arising from any alleged unpreparedness for the Tribunal Hearing. In that respect however the Court notes that it was on 14 April 2016 that the Tribunal first gave notice to COY16 setting the matter down for a hearing before the Tribunal on 6 June 2016: CB 147-149, which was adjourned, at COY16’s request, to 17 June 2016 and then, again at the COY16’s request, further adjourned to the Tribunal Hearing on 11 July 2016: CB 155-167, 168, 171-173 and 181-183. COY16 attended the Tribunal Hearing with two potential witnesses, only one of whom gave evidence: CB 186-188 and 286 at [3], and there is nothing in the Tribunal Hearing record at CB 186-188 or the Tribunal Decision which indicates that there was any complaint of unpreparedness made by COY16 at the time of the Tribunal Hearing. In circumstances where there was 12 weeks between the first notification of date for a hearing before the Tribunal and the Tribunal Hearing, and where COY16 had, and utilised, the opportunity to make post Tribunal Hearing submissions, annexing a significant quantity of documents, it cannot be said that the argument that COY16 was unprepared for the Tribunal Hearing has been made out, and, in any event, there is nothing in the circumstances which would warrant a finding of jurisdictional error on the part of the Tribunal.
Save for the matters discussed above, there is nothing in this Judicial Review Application that would appear to raise or indicate any other arguable or possible jurisdictional error was made by the Tribunal.
CONCLUSION AND ORDER
The Court has concluded that none of the four grounds in the Judicial Review Application have been made out, and that otherwise no jurisdictional error in the Tribunal Decision has been established.
It follows from the Court’s conclusion that the Judicial Review Application must therefore be dismissed. There will be an order accordingly.
The Court will hear the parties as to costs.
I certify that the preceding one hundred (100) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev.
Associate:
Dated: 28 April 2022
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