Cro15 v Minister for Immigration
[2017] FCCA 284
•1 March 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CRO15 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 284 |
| Catchwords: MIGRATION – Migration Act 1958 (Cth) – application for Protection visa – Administrative Appeals Tribunal did not believe applicant’s factual claims – no jurisdictional error – application dismissed with costs. |
| Legislation: Migration Act 1958 (Cth), ss.36, 499 |
| Cases cited: Aporo v Minister for Immigration and Citizenship (2009) 113 ALD 46 CLI15 v Minister for Immigration and Border Protection [2016] FCA 1223 MZAKA v Minister for Immigration and Border Protection [2016] FCA 781 |
| Applicant: | CRO15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3397 of 2015 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 18 May 2016 |
| Date of Last Submission: | 1 June 2016 |
| Delivered at: | Sydney |
| Delivered on: | 1 March 2017 |
REPRESENTATION
| The Applicant appeared in person. |
| Counsel for the Respondents: | Mr L M Dennis |
| Solicitors for the Respondents: | Minter Ellison |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
Leave is granted to the First Respondent to file, read and rely upon the affidavit of Mr Liam Michael Dennis affirmed on 31 May 2016.
The Application filed on 15 December 2015 is dismissed with costs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3397 of 2015
| CRO15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant in this proceeding is a male citizen of Bangladesh aged 26 years, having been born on 31 December 1990.
By Application filed in this Court on 15 December 2015 he seeks to quash and have redetermined a decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal) dated 16 November 2015 which affirmed the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister) dated 22 August 2014 refusing to grant to him a Protection (Class XA) visa (Protection visa).
Background
The Applicant applied for a Protection visa on 6 June 2013, having arrived in Darwin on 28 March 2013 as an unauthorised maritime arrival. He stated that he had left his home in Bangladesh in February 2013.
In his Irregular Maritime Arrival Entry Interview of 12 April 2013 (Entry Interview) the Applicant claimed that “terrorist people” would kill him if he returned to Bangladesh because they had broken and ransacked his shop some “one and a half months ago” (presumably referring here to the time period prior to his departure) and subsequently threatened to kill him.
In his Statutory Declaration of 4 June 2013 (Statutory Declaration) which formed part of his Protection visa application he claimed that he had left Bangladesh because of his “imputed political opinion as a person who did not comply with the demands of the most influential political party in Bangladesh”, being the Awami League Party (ALP), which was the current government, and that if returned to Bangladesh he would be captured, tortured and killed by supporters of the ALP. The Statutory Declaration further claimed that ALP supporters came to his shop and demanded donations for their party, which he refused to pay, and they then verbally abused and threatened him with the destruction of his shop if he did not pay them money. The men then left and returned in a larger group about two to three hours later and destroyed the shop. The Applicant then immediately informed his father, who went to the police station to make a complaint, but the police refused to accept the complaint. Thereafter the Applicant hid at his aunt’s place. Whilst he was residing at his aunt’s place, the ALP supporters discovered his father’s attempt to complain to the police. They went to his parents’ home, seeking him out and threatening that as he had not paid them money they would find and kill him. He then decided to leave Bangladesh to prevent any such attempt by ALP supporters.
Relevant Criteria and Law Applicable to Protection Visa Application
The relevant criteria and law concerning the grant of a Protection visa were recently and conveniently summarised by Burley J in the Federal Court of Australia in CLI15 v Minister for Immigration and Border Protection [2016] FCA 1223 at [34] to [41] as follows:
[34]The Act provides for different classes of visa, one of which is a protection visa under section 36. A protection visa may be granted if the criteria in subsection 36(2)(a) are met, namely, where the Minister is satisfied that the person is a person to whom protection obligations are owed under the Convention relating to the Status of Refugees 1951, as amended by the Protocol relating to the Status of Refugees 1967 (Refugee Convention). Article 1A(2) of the Refugee Convention provides, that a refugee is a person who, relevantly:
... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or particular opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.
[35]A fear of harm is “well-founded” for the purpose of subsection 36(2)(a) of the Act when there is a “real substantial basis for it”, even where the chance of the object of the fear eventuating is less than 50 per cent. A fear of harm is not “well-founded” if it is merely assumed or speculative; Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559 at [48] (Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ).
[36]Subsection 36(2)(aa) provides that a criterion for a protection visa is that the applicant for the visa is:
A non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; ...
[37] A person who is not a citizen of Australia is a “non-citizen”.
[38]Section 36(2)(aa) recognises that a non-citizen who is not entitled to a protection visa because he or she is not a refugee may nevertheless be entitled to protection in Australia under the obligations owed by Australia to afford protection, including under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984 and the International Covenant on Civil and Protection Rights 1966; Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; (2013) 210 FCR 505 (SZQRB) at [70] and [100] (Lander and Gordon JJ), and [300] and [313] (Besanko and Jagot JJ).
[39]The proper test is whether there is a “real chance” that an applicant will suffer “significant harm” if returned to her or his country of origin: SZQRB at [242] – [246] (Lander and Gordon JJ, with whom Besanko and Jagot JJ agreed at [297] and Flick J at [342]).
[40]Subsection 36(2A) in turn prescribes the circumstances in which a non-citizen will suffer significant harm as being if:
(a) the non-citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non-citizen; or
(c) the non-citizen will be subjected to torture; or
(d) the non-citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non-citizen will be subjected to degrading treatment or punishment.[41]The phrase “significant harm” does not bear its ordinary and natural meanings. Its meaning is limited to that defined by section 36(2A); SZTMC v Minister for Immigration and Border Protection [2015] FCA 1282 (SZTMC) at [10] (Perry J). It is apparent from this definition that a requirement that a person suffer significant harm imposes a high threshold; SZTMC at [10].
Decision of Delegate
The Applicant attended an interview with the Delegate on 12 August 2014.
By her Decision Record of 22 August 2014 the Delegate refused to grant the Applicant a Protection visa as she was not satisfied that Australia had Refugees Convention protection obligations to the Applicant under s.36(2)(a) or under the complementary protection criterion provided in s.36(2)(aa) of the Migration Act 1958 (Cth) (the Act).
In short, the Delegate did not accept that the Applicant was a credible witness. In her Decision Record, the Delegate stated that on several occasions during the interview, the Applicant would not directly answer basic questions, and would deny any inconsistencies put to him for comment. In particular, the Delegate found that the Applicant had provided an unconvincing account of the alleged political activities of his two brothers with the Bangladesh Nationalist Party (BNP) and that his account of his two brothers’ involvement with the BNP was not credible. The Delegate found that the Applicant provided inconsistent and at times illogical accounts of events. She found that the Applicant was not a witness of truth with regard to his claims for protection and that he had fabricated his material claims to enhance his prospect of invoking Australia’s protection obligations. The Delegate did not accept any of the following:-
a)That the Applicant’s brothers worked for the BNP;
b)That the Applicant’s shop was destroyed by members of the ALP;
c)That the Applicant was threatened by members of the ALP;
d)That the Applicant’s father reported that the Applicant’s shop had been destroyed to the police and they did not investigate the alleged incident; and
e)That the Applicant’s home was visited by members of the ALP who were looking for him.
The Delegate noted in her Decision Record that the Applicant had stated that he did not fear returning to Bangladesh for any other reason than his aforesaid material claims.
Decision of Tribunal
The Applicant applied to the Tribunal for review of the Delegate’s decision on 29 August 2014 and appeared before it on 29 October 2015 to give evidence and present arguments.
During the hearing there was discussion with the Applicant about his background, education, family composition and employment in Bangladesh as well as the reasons for which he claimed he had left Bangladesh and his fears of returning there. In the result, the Tribunal found that the Applicant was not a witness of truth and was not satisfied that he had told the truth in relation to critical aspects of his claims. Whilst the Tribunal noted and accepted in its Decision Record that the stress of giving evidence and the passage of time could adversely affect a person’s ability to recall detail, the Tribunal noted a number of differences between the Applicant’s oral evidence at the hearing before the Tribunal and his Statutory Declaration, as well as differences between his oral evidence and the information that he provided to the Delegate. The Tribunal raised with the Applicant its concern with these differences. In relation to differences in the information he provided to the Delegate and in his Statutory Declaration, the Applicant told the Tribunal he had said what he had to say.
The Tribunal did not accept that the Applicant was in fear of harm when he left Bangladesh or was of any adverse interest to supporters of the ALP or anyone else in Bangladesh. The Tribunal did not accept that there was a real chance that the Applicant’s life would be in danger or that he would be intimidated, threatened or beaten or found, captured, tortured and killed by supporters of the ALP or anyone else if he returned to Bangladesh, either now or in the foreseeable future. It did not accept that there was a real chance that the Applicant would suffer serious harm or harm of any kind if returned to Bangladesh and it found that he did not have a well-founded fear of persecution. The Tribunal found that having considered the Applicant’s claims individually and cumulatively, it was not satisfied that the Applicant was a person in respect of whom Australia had Refugees Convention protection obligations and that therefore the Applicant did not satisfy the criterion set out in s.36(2)(a) of the Act.
The Tribunal then considered the alternative complementary protection criterion provided by s.36(2)(aa) and consistently with its earlier finding that the Applicant was not of any adverse interest to the supporters of the ALP or anyone else in Bangladesh, it found that it was not satisfied that there was a real risk the Applicant would suffer significant harm for any of the reasons which he had claimed if he returned to Bangladesh now or in the reasonably foreseeable future.
Accordingly, the Tribunal was not satisfied that Australia had protection obligations to the Applicant under either s.36(2)(a) or s.36(2)(aa) and therefore it affirmed the Delegate’s decision not to grant the Applicant a Protection visa.
Grounds of Attack on Tribunal Decision in this Court
The Grounds of the Application filed in this Court on 15 December 2015 are as follows:
1.The Tribunal failed to assess my harm on the basis of my support to the BNP.
2.The Tribunal failed to exercise its jurisdiction by failing to consider all aspects of my claims.
3.The Tribunal failed to consider my claim on the basis of my political opinion against the Awami League Party as an independent claim.
4.The Tribunal failed to assess the escalating political violence in Bangladesh since 2012.
At the hearing in this Court the Applicant appeared with the aid of an interpreter. Unfortunately he indicated that he did not wish to say anything in support of his Grounds.
Consideration
Ground 1
This Ground must fail. If it really means to convey, as on a literal reading it does, that the Applicant asserted as part of his Protection visa claims that he was a supporter of the BNP, this is simply not correct. In his Entry Interview the Applicant was asked about any association or involvement of himself or a family member with a political group or organisation, to which his answer was to the effect that his two older brothers were involved in politics and that they supported the BNP. There was no suggestion that the Applicant was involved with or supported the BNP.
Likewise, there was no suggestion in the Statutory Declaration that the Applicant himself supported or was involved with the BNP. There was no suggestion before the Delegate that the Applicant was a supporter of or involved with the BNP but rather the reference was again to his brothers’ involvement with the BNP.
At the Tribunal hearing the Applicant told the Tribunal that two of his brothers were BNP supporters but there is no suggestion in the Decision Record of the Tribunal that the Applicant ever asserted to the Tribunal that he was in fact a supporter of the BNP.
However, making allowance for the position of the Applicant at the hearing, who was without legal advice and may have suffered difficulties in connection with the English language in the preparation of his Application, if this Ground means in fact to suggest that the Tribunal did not consider, assess and deal with the Applicant’s actual claims made with respect to the BNP, then this is also not correct. At [33] of its Decision Record, the Tribunal records the Applicant’s evidence about his two brothers being BNP supporters and ultimately at [40] and [49] of its Decision Record the Tribunal did not accept that the Applicant’s two brothers were supporters of the BNP or that this was a reason why supporters of the ALP would approach the Applicant for money.
Ground 1 has no substance and fails.
Ground 2
This Ground is completely unparticularised, and the Applicant has not explained or identified how he claims that his evidence, including his oral evidence before the Tribunal, was not carefully taken and considered by it.
In so far as this Ground could be taken to suggest that the Tribunal failed to deal with the case raised by the material or evidence before it and thereby constructively failed to exercise its jurisdiction (and in this regard, see NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) (2004) 144 FCR 1 at 17 [55] per Black CJ, French and Selway JJ), I consider that there is no evidence which would justify such a finding in this case.
Accordingly, Ground 2 fails.
Ground 3
This Ground is unparticularised, but in any event fails because it was never asserted by the Applicant as an independent claim that he had any particular political opinion against the ALP. As discussed at [18]-[20] above, his only assertion of a relevant political opinion against the ALP was that of his brothers’ support of the BNP. It is true that at [5] of his Statutory Declaration he claimed to have left Bangladesh because “of my imputed political opinion” from not making a donation to the supporters of the ALP, but the factual basis for the alleged “imputed political opinion” was rejected at [39] of the Decision Record of the Tribunal. It stated its finding that it did not accept that the Applicant was approached by supporters of the ALP while he was working in his shop and asked by them for any money or donation.
In my view Ground 3 has no validity and must be rejected.
Ground 4
Once again this Ground does not particularise or identify either the nature or scope of the alleged failure of the Tribunal to “assess escalating political violence in Bangladesh since 2012” or any relevant connection of such violence with the Applicant’s Protection visa application. Further, as submitted by Mr Dennis who appeared for the Minister, it does not appear that the Applicant ever made any claim to fear harm as a result of this alleged escalating political violence, nor did he submit any material or country information to that effect.
Nevertheless, it seems clear to me for the following reasons that the Tribunal did consider and was conscious of recent available country information relating to the political situation and violence in Bangladesh since 2012 but lawfully came to the view that having regard to its findings concerning the Applicant’s specific circumstances and its comprehensive adverse credibility findings, such country information was irrelevant.
At [1] of its Decision Record, the Tribunal incorporated into its reasons an attachment headed “Relevant Law” which at [70] referred to Ministerial Direction No.56 made by the Minister under s.499 of the Act. Clause 3 of this Direction required the Tribunal to take into account any country information assessment prepared by the Department of Foreign Affairs and Trade (DFAT) to the extent relevant to the decision under consideration. As Perram J said of Direction 56 in SZTMD v Minister for Immigration and Border Protection (2015) 150 ALD 34 (SZTMD) at 36 [9]:-
Clause 3 bound the Tribunal to take into account any country information assessment prepared by the Department of Foreign Affairs and Trade but, significantly, only if it was relevant.
Then at [33] of its Decision Record the Tribunal noted that country information indicated that the ALP came to power in Bangladesh in the general election of December 2008 and specifically identified and footnoted the country information as being the DFAT Country Report Bangladesh of 20 October 2014 (Bangladesh Report).
Section 2 of the Bangladesh Report, headed Background Information, gave a recent history of the area now comprising Bangladesh since independence from Great Britain in 1947 (initially as East Pakistan) and referred to political violence in connection with and since the general election held on 5 January 2014.
It is the case that the Tribunal should generally have regard to the most recent country information of which it becomes aware, because it is a principle of law generally applicable to public administration that a decision-maker is to make his or her decision on the basis of the most current material available to him or her at the time the decision is made. It will often be jurisdictional error if the Tribunal does not have regard to the most current material: SZJTQ v Minister for Immigration and Citizenship (2008) 172 FCR 563. That is not the case here.
However, as a general proposition, the Tribunal does not commit jurisdictional error either when it makes a choice of which country information it regards as relevant and takes into account or when it makes a choice between competing information. As the Full Court of the Federal Court of Australia comprised of Spender J, Moore and Foster JJ stated in Aporo v Minister for Immigration and Citizenship (2009) 113 ALD 46 at 55 [45]:-
The choice of, and weight given to, the material before a Tribunal is a matter for it: NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10; Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464 per French J at [27]. Further, while it can generally be said that there is no onus of proof in administrative inquiries and decision making (Yao-Jing Li v Minister for Immigration & Multicultural Affairs (1997) 74 FCR 275 at 288), it is for an applicant to provide their evidence and arguments in sufficient detail to enable the decision maker to establish the relevant facts: Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61. The decision maker is not required to make the applicant’s case for him or her: Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155.
It is true that the Tribunal in its Decision Record did not otherwise refer to or expand upon the content of the Bangladesh Report and in particular did not address or refer to any political violence in Bangladesh since either 2012 or the 2014 general election. However, as Perram J also said in SZTMD at [15]-[16] and [18], this would usually mean that the Tribunal did not consider the political situation in Bangladesh to be material or relevant. As his Honour said:-
[15]It has been held that the effect of s 430(1) is that the Court is entitled to infer that a matter not mentioned in the Tribunal’s reasons was not considered by it to be material: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 346 [69] (‘Yusuf’). Therefore it is permissible for this Court to conclude from the absence of any direct consideration of either the two guidelines or the country information that the Tribunal did not consider them to be material to its decision.
[16]If that inference were to be drawn it would defeat the applicant’s argument at the threshold. This is because the silence of the Tribunal on these matters would then signify not that it had not considered the guidelines and country information but that it did not consider them material to the task it had to perform. This is significant because cll 2 and 3 of Direction No. 56, in terms, contemplate that the Tribunal is only obliged to consider the guidelines or country information to the extent that they are relevant.
…
[18]It follows then that if the inference suggested in Yusuf is drawn then it will be open to this Court – indeed probably required of it – to conclude that the Tribunal did consider the question of the relevance of the guidelines and the country information and decided that they were not relevant.
Thus, even assuming for the purposes of the argument that the Applicant had made a claim to fear harm as a result of “escalating political violence in Bangladesh” since 2012, the Tribunal made no jurisdictional error in not considering country information on this subject. This is because the factual bases of the Applicant’s claims under both the Refugees Convention and on complementary protection grounds were completely rejected. As discussed at [12]-[15] above, the Tribunal found that the Applicant was not a witness of truth and that there was no real chance that he would suffer serious harm if returned to Bangladesh and accordingly did not satisfy the Refugees Convention criterion set out in s.36(2)(a) of the Act. It then specifically considered the complementary protection criterion in s.36(2)(aa) and repeated its factual findings in coming to the view that it was not satisfied that there was a real risk that the Applicant would suffer significant harm for any of the reasons he had claimed if he returned to Bangladesh. The Tribunal is entitled to proceed in that way: SZSHK v Minister for Immigration and Border Protection (2013) 138 ALD 26 at [31]-[32] per Robertson, Griffiths and Perry JJ; SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774 at [54]-[57] per Robertson J and MZAKA v Minister for Immigration and Border Protection [2016] FCA 781 at [22] per Davies J.
Finally, the present case is analogous to that considered by Sackville J in Applicant S243/2003 v Refugee Review Tribunal [2005] FCA 1225 where there was a complaint that the RRT did not have before it, and therefore failed to consider, relevant country information. His Honour nevertheless considered that this country information was irrelevant because the RRT had found that the applicant’s factual claims were implausible.
Conclusion
In my view none of the Grounds relied upon by the Applicant are made good and the Application must be dismissed with costs.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Associate:
Date: 1 March 2017
Key Legal Topics
Areas of Law
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Immigration
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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Natural Justice
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