CST19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 1948
•24 August 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
CST19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1948
File number(s): SYG 1775 of 2019 Judgment of: JUDGE HUMPHREYS Date of judgment: 24 August 2021 Catchwords: MIGRATION – Administrative Appeals Tribunal – Protection visa – whether jurisdictional error is made out – no jurisdictional error is made out – the application is dismissed. Legislation: Migration Act 1958 (Cth) ss 5, 36, 423, 438(1)(b), 476, Cases cited: Chan v Minister for Immigration and Multicultural and Indigenous Affairs (1989) 169 CLR 379
CTE16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 759
CWX v Minister for Immigration Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 673
Minister for Immigration v Lium [2019] FCA 1850
Minister for Immigration v Wu Shan Liang (1986) 185 CLR 259
NAHI v Minister for Immigration [2004] FCAFC 19
Re Minister exparte Durairajasingham (2000) 168 ALR 407
Singh v Minister for Home Affairs (2019) 267 FCR 200
SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71
WAEE v Minister for Immigration (2003) 236 FCR 593
Number of paragraphs: 81 Date of last submission/s: 12 August 2021 Date of hearing: 12 August 2021 Place: Parramatta Counsel for the Applicants: Ms Okereke-Fisher Counsel for the Respondents: Mr Cleary ORDERS
SYG 1775 of 2019 BETWEEN: CST19
First Applicant
CSU19
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE HUMPHREYS
DATE OF ORDER:
24 AUGUST 2021
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The First Applicant to pay the First Respondent’s costs, fixed in the amount of $7,467.00.
3.No Order for Costs in respect of the Second Applicant.
REASONS FOR JUDGMENT
JUDGE HUMPHREYS
INTRODUCTION
The applicants’ are citizens of Bangladesh. The first applicant is the husband of the second applicant. The first applicant arrived in Australia on 8 February 2010 as the holder of a Tourist visa. The second applicant arrived in Australia on 2 March 2010.
The matter has a long and unfortunate history. It does not reflect well on the sheer complexity of the law in relation to immigration matters involving protection claims, the administration of justice in a timely manner and the consideration of migration matters by the Executive.
The applicants’ first lodged a Protection visa application on 5 March 2010. The second applicant was included in the first applicant’s application as a member of a family unit.
A delegate of the Minister for Immigration (“the delegate”), refused the application for Protection visas’ in September 2010. The applicants’ sought merits review at the then Refugee Review Tribunal (“RRT”). In a decision handed down in February 2011, the RRT affirmed the delegate’s decision not to grant the applicants’ Protection visas. The decision was the subject of a series of judicial reviews in this Court, the Federal Court, the Full Federal Court and ultimately the High Court without success. The applicants’ then unsuccessfully sought Ministerial intervention.
On 6 December 2012, the applicants’ lodged a second protection visa application. That was again rejected by a delegate of the Minister for Immigration. That decision was affirmed by the RRT. On 30 May 2014, this Court remitted the matter to the delegate for further consideration by consent, on the basis that the application was valid following the Full Federal Court decision in SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71.
On 12 June 2015, a delegate of the Minister for Immigration again refused the application. The applicants’ again sought merits review at the RRT. The applicants’ were unsuccessful. The applicants’ again sought judicial review of the RRT decision. This Court remitted the matter back to the RRT for reconsideration on the basis of the existence of a s 438(1)(b) of the Migration Act 1958 (Cth) (“the Act”) certificate that was not disclosed the applicants’ during the course of the review.
In a decision dated 17 June 2019, the Administrative Appeals Tribunal (“the Tribunal”), which now had jurisdiction of the matter, again affirmed the delegate’s decision not to grant the applicants’ Protection visas. The applicants’ now seek judicial review of the most recent Tribunal decision.
The matter was initially listed for hearing on 22 July 2021 but was adjourned to 13 August 2021due to the Court being closed due to Covid 19 health restrictions.
THE TRIBUNAL DECISION.
The Tribunal decision is detailed, running to some 24 pages and 94 paragraphs. After setting out the procedural history of the matter at paragraph 6 of its decision, the Tribunal set out the first applicant’s claims in his second Protection visa application. These included, fear of harm from Awami League supporters and being targeted by criminal gangs due to his political activities with the BNP and his activities as a Police Sub-Inspector during which he arrested many Awami League supporters.
At paragraph 7 of its decision, the Tribunal set out the documentary evidence it had before it. At paragraph 11 onwards of its decision, the Tribunal sets out in considerable detail the oral evidence given by the applicant during the Tribunal hearing on 2 May 2019.
At paragraphs 14 and 15 of its decision, the Tribunal noted various inconsistencies in the date the applicant left the Police Force, including what was contained within the applicant wife’s Protection visa application. This included issues at paragraph 29 of the Tribunal decision, with the first applicant’s evidence that the Awami League knew about his presence in Australia and his Protection visa application, and as a result the government terminated his job. The first applicant had difficulty explaining how the Bangladeshi government knew that he had applied for a Protection visa.
It was put to the applicant at paragraph 32 of the Tribunal decision that the Department of Foreign Affairs and Trade (“DFAT”) Country Information indicated that returning asylum seekers were unlikely to fact adverse attention. The first applicant said that authorities might take an interest in a high profile individual. Paragraph 40 of the Tribunal decision, deals with concerns that the Tribunal had in relation to documents provided by the applicant in support of his application. This included a letter on letterhead of an organisation that had been deregistered as an incorporated organisation.
At paragraph 43 of its decision, the Tribunal set out a letter that it caused to be sent to the applicants’. That letter provided detailed particulars of information that the Tribunal considered either to be false and/or inconsistent such that the Tribunal might doubt the first applicant’s credibility and not accept at face value his evidence and the supporting evidence of his claims. In each case, the evidence is set out and the reasons why the Tribunal has concerns are articulated. These were responded to. The first applicant’s entire response is set out at paragraph 44 of the Tribunal decision.
Paragraph 47 of the Tribunal decision sets out in full, relevant DFAT country information in relation to Bangladesh in relation to the political situation, the caretaker government in 2007 and subsequent elections in 2008 that saw the Awami League assume power in early 2009.
At paragraphs 48 to 52 of its decision, the Tribunal properly sets out the relevant legislation and policy in relation to the consideration of refugee claims. The Tribunal then turned to a consideration of the applicants’ claims.
At paragraphs 53 and 54 of its decision, the Tribunal noted the existence of a
s 438(1)(a) of the Act certificate and that it had put the information contained within the certificate to the applicant for comment.
At paragraphs 55 and 56 of its decision, the Tribunal noted that the second applicant, being the first applicant’s wife, was no longer in Australia and thus did not satisfy s 36(2) of the Act and could not be granted a Protection visa.
At paragraph 59 of its decision, the Tribunal noted that the first applicant had made additional claims since his original visa application in 2012. This included at the hearing in 2019 of how the first applicant was repeatedly attacked by persons due to his political activities, there was a complaint lodged against him in relation to some land, that he was involved in Bangladesh Nationalist Party (“BNP”) activities within Australia and that he would possibly be targeted for extortion if returned as he would be considered as a wealthy person. The latter claim was only made after the last Tribunal hearing in May 2019.
Paragraphs 60 to 63 of the Tribunal decision, deal with the first applicant’s claimed political activities in Bangladesh. At paragraph 60 of its decision, the Tribunal noted that the first applicant claimed to fear harm when the Awami League came to power following the general election in December 2008, yet on 12 November 2008, the first applicant applied for a visa to the United Kingdom. The Tribunal was concerned that the first applicant’s evidence that killings started in 2008, did not explain this issue.
At paragraph 61 of its decision, the Tribunal noted that in the first applicant’s first protection visa application in March 2010 and his evidence before the RRT in January 2011, he confirmed that he did not want to make any separate claim for protection and that there was no mention of any political or similar claims. In the first applicant’s subsequent letter to the Minister in November 2011, he stated that in 2007 he was involved in a motor vehicle accident. Whilst in hospital the first applicant claimed that he was threatened to stop investigating BNP leaders. The first applicant made other claims of threats. The Tribunal found at paragraph 62 of its decision that the applicant omitted to provide details of the attacks as described to the Minister and inconsistent evidence regards the attack in 2007.
The Tribunal described at paragraph 63 of its decision the first applicant’s evidence at the hearing that because he arrested many Awami League leaders, he became their enemy. The Tribunal found the first applicant’s evidence to be vague and unconvincing. The first applicant’s evidence as to how he lost his job as a Police Officer, was also vague and unconvincing. The first applicant was unable to remember the details of when he was discharged from the Police Force stating that it might have been 2010 or 2011. Documents produced, showed that the first applicant was dismissed in August 2011, whereas other documents suggested February 2010. The first applicant claimed in his letter to the Minister that Awami League supporters in Australia informed the government of his presence in Australia and his Protection visa application, so the government terminated his job.
Paragraphs 66 to 70 of the Tribunal decision deal with an alleged land complaint made against the first applicant in the Supreme Court of Bangladesh. At paragraph 68 of its decision, the Tribunal found that the first applicant had been making up his evidence in relation to the land complaint as he went along. In so doing, the Tribunal considered the first applicant’s initial statement from 2009 and his sworn evidence to the RRT in 2011, where there was no evidence of his prior work as a Police Officer, a land dispute or any other matter. The first applicant stated that he came from a poor family, was unemployed and after he got married him and his wife started a garment business.
At paragraph 71 of its decision, the Tribunal noted that the first applicant had admitted giving false information in his previous Protection visa application. The first applicant stated that he and his wife were desperate to leave Bangladesh due to the threats he was receiving and was told that if he mentioned he was a Police Officer to Australian officials, he would be sent back.
At paragraph 72 of its decision, the Tribunal made a number of critical findings. This included that it gave the first applicant the benefit of the doubt and accepted that he was a Policeman. The Tribunal did not however, accept that the first applicant lost his job because of the Awami league or that he generally feared harm in Bangladesh for any reason including any reason associated with his prior work as a Police Officer, political affiliation or any family land dispute or any other matter. The Tribunal also did not accept that the first applicant left the Police service without permission and would face serious harm on return. The Tribunal noted that it had considerable concerns that some of the documents produced by the first applicant were not genuine.
At paragraph 76 of its decision, the Tribunal summarised its findings including that it did not accept that the applicant was credible and did not accept that he was a supporter or involved or a member of the BNP student wing or that he was political in Bangladesh or that he was at from political party.
Paragraphs 77 through to 87 of the Tribunal decision, deal with activities in Australia. Paragraph 88 onwards of the Tribunal decision deals with the claim made late by the first applicant that he would be targeted for extortion because he would be considered as returning from Australia as a wealthy person. The Tribunal noted that it already found that it did not accept that the first applicant had enemies or the issues he described. Given the first applicant’s many previous opportunities, including of the hearing, for him to raise his concerns and given the Tribunal’s findings as to his lack of credibility, the Tribunal was not satisfied that the first applicant was now telling the truth when he stated he feared extortion upon return because he would perceived to be a wealthy person.
Paragraphs 89 through to 93 of the Tribunal decision, deal with complimentary protection considerations. For the same reasons as outlined above, the Tribunal was not satisfied the applicant met any of the criteria for complimentary protection. Accordingly, affirmed the delegate’s decision under review.
GROUNDS OF JUDICIAL REVIEW
The grounds of judicial review relied upon are set out in a further Amended Initiating Application filed with the Court on 15 July 2021. They are as follows;
Ground One:
Jurisdictional error. The applicant claimed to fear harm arising from the activities he undertook against Awami League Leaders, on the orders of BNP political leaders during the course of his career as a Policeman. An analysis of how the Tribunal dealt with these claims reveal that the Tribunal did not properly address and deal with the risk to the applicant arising from the AL leaders whom he arrested and the AL criminal gangs. In essence, the Tribunal did not actively engage with the substance of certain integers of the applicant’s claims, which if accepted, may establish a well-founded fear of persecution for convention reason leading to a failure to exercise jurisdiction.
Particulars:
1. The Applicant’s claims for protection included the following terms:
a. During his Police career he arrested and gave criminal reports against many leaders of the Awami League (AL) and he did so on the orders of BNP political leaders.
b. He followed the directions of BNP leaders to have newspapers publish articles critical of AL leaders.
c. He was present when 22 AL supporters were killed by Police on the orders of BNP leaders.
d. He filed criminal charges against AL leaders in Sylhet and informed the local media about the charges and as a result many AL members became my enemy.
e. He fears that due to his political activities and his position as an SI he will be targeted by political opponents and AL criminal gangs.
f. He fears that even if moved to other parts of Bangladesh he will be targeted by political opponents and AL criminal gangs
g. He was afraid of returning to Bangladesh because he will be targeted by the AL leaders who we arrested and other AL criminal gangs and his political opponents.
Ground Two
Jurisdictional error. The applicant claimed that, if required to return to Bangladesh he would face serious harm and there was a possibility he would be targeted for extorting money because he would be considered to be a person who return from Australia and would be perceived to be wealthy (Extortion Claim). The Tribunal concluded it was not satisfied the applicant was telling the truth in respect of the fears he expressed in the extortion claim. In respect of the extortion claim, the Tribunal failed to assess whether the applicant had a well-founded fear of persecution pursuant to s 5J and s 36(2)(a) of the Act, Failed to excess the extortion claim pursuant to s 36(2)(aa) and failed to deal with the risk to the applicant of extortion attempts from persons who will perceive him to be wealthy, if return to Bangladesh.
Particulars
a. The applicant claimed that if required to return to Bangladesh he would face serious harm and there was a possibility he would be targeted for extorting money because he would be considered to be a person who return from Australia and would be perceived to be wealthy: (CB340 at [9]).
b. The Tribunal was not satisfied the applicant is now telling the truth when he states that he fears returning to Bangladesh because there is a possibility he would be targeted for extortion because he would be perceived to be a wealthy person (CB375 at [88]).
THE APPLICANTS’ SUBMISSIONS
Counsel for the applicants’ contended that, in ground one, the Tribunal failed to give proper, genuine and realistic consideration and/or embark on an active intellectual engagement in respect of certain integers of the applicants’ claims, leading to a failure to exercise jurisdiction.
The Tribunal rightly identified that the issue in the case was whether the applicants’ had a well-founded fear of being persecuted for a convention reason and, whether there was substantial grounds for believing there is a necessary and foreseeable consequence of the applicants’ being removed to Bangladesh, there was a real risk that they would suffer significant harm. It was contended that there was a real chance that the first applicant would suffer harm and this relates to all areas of Bangladesh.
A fair assessment of the Tribunal’s decision record reveals that the Tribunal considered the applicants’ claims and evidence from paragraph 48 to 93 of its decision and summarised the applicants’ claims in paragraph 59 of its decision. The Tribunal set out the first applicant’s evidence, including a claim that he was involved in an accident which he says was orchestrated by the BNP in December 2007. The Tribunal at paragraph 63 of its decision found that the first applicant had provided inconsistent evidence in respect of that accident.
At paragraph 63 of its decision, the Tribunal also found the first applicant’s evidence in relation to when he was in the Police force was vague and unconvincing because of inconsistency around his starting and finishing dates in the Police force. At paragraphs 63 to 65 of its decision, the Tribunal considered the issue of when and why the applicant was actually discharged from the Police force.
The Tribunal acknowledged at paragraph 71 of its decision, that the first applicant had not mentioned his work as a Police Officer in his first Protection visa application. The first applicant gave evidence that he had withheld this information because he was worried the Australian government might think he was a spy. At paragraph 72 of its decision, the Tribunal accepted that the first applicant was a Policeman, but did not accept that he lost his job because of the Awami League. The Tribunal did not accept that the first applicant generally feared harm in Bangladesh for any reason, including any reason associated with his prior work as a Police Officer, or political opinion
At paragraph 76 of its decision, the Tribunal did not accept that the first applicant was credible, a supporter or a member of the BNP student wing or that he was political in Bangladesh or that he was from a political family.
The first applicant complains that the Tribunal did not, such as to constitute jurisdictional error:
1. properly deal with the factual substance of the activities against AL leaders claim;
2. complete the exercise the jurisdiction mandated by s 5J;
3. set out its findings on the material questions of facts raised by the activities against AL leaders claim;
4. refer to the evidence on which the findings of fact were made.
It was submitted that the Tribunal did not dispute the first applicant’s claim that he first worked as a Police Officer between 2003 and 2011 and second, performed any of the activities against Awami League leaders. Notwithstanding these findings, it was submitted that the Tribunal failed to register its finding in respect of any of the first applicant’s activities against Awami League leaders.
The Tribunal failed to state one way or the other whether the first applicant would be exposed to harm, as a result of carrying out arrests the of Awami League officials or any other activities against Awami League leaders. The Tribunal failed to state if the applicant would be exposed to harm at the hands of Awami League leaders at the receiving end of the first applicant’s activities, political targets or Awami League criminal gangs. There is no mention in the Tribunal decision of the Awami League criminal gangs. It was submitted that the Tribunal failed to deal with the risk from one of the first applicant’s feared entities, the Awami League criminal gangs. If a critical piece of evidence on a particular issue is not referred to, that fact might be one from which an inference can be appropriate that if drawn, that the decision-maker did not consider it: (see CWX v Minister for Immigration Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 673 at [48]).
It was submitted that the Tribunal should have made factual findings as to whether not it was satisfied as to the substance of the activities against Awami League leaders claim, whether the first applicant arrested persons named in his claims performed activities against Awami League leaders, ascertain whether the applicant subjected to harm by Awami League leaders who rearrested or political persons affiliated with them and state with clarity whether it was satisfied the first applicant filed criminal charges against Awami League leaders in Sylhet and informed the media about the charges and/or gave criminal reports against many leaders of the Awami League on the orders of BNP political leaders. It was submitted that the Tribunal also failed to register its findings in respect of the first applicant’s claim he was present when twenty two Awami League leaders were supposedly killed by Police on orders of BNP leaders. In the absence of registered factual findings on these matters it was submitted that it was not open to the Tribunal to arrive at the conclusions it did at paragraphs 63, 72 and 76 of its decision.
It was submitted that the first applicant’s contention does not primarily arise from a failure to consider the applicants’, claim, rather it arises from the failure of the Tribunal to deal with the factual substance of his claims and apply itself to the factual questions arising from those claims leading to a failure to exercise jurisdiction.
Reliance was placed on CTE16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 759 at [57], an error of this kind may be shown where the Tribunal failed to evaluate “substantial, clearly articulated argument relying upon established facts”, and where the nature of this failure is sufficient to suggest that the Tribunal misunderstood its statutory task. The Tribunal must not only consider and determine the case as articulated by the Protection visa applicant, but also do so in relation to any an unarticulated claim which is nevertheless clearly raised or squarely on the material before that review body.
In the circumstances, it was submitted that the Tribunal failed in its obligation to give “proper genuine and realistic consideration” to the matter.
In relation to ground two, in the first applicant’s post hearing Statutory Declaration of 29 May 2019, he claimed that if required to return to Bangladesh he would face serious harm and that there was a possibility he would be targeted for extortion because he would be considered to be a person who had returned from Australia and would be perceived to be wealthy. It was submitted that this was clearly part of his protection claim and one of the reasons he feared a return to Bangladesh. Consequently, the Tribunal was required to assess whether the applicant had a well-founded fear of persecution arising from this claim pursuant to s 5J of the Act.
The Tribunal mentioned extortion claims at paragraph 59 of its decision. At paragraph 88 of its decision, the Tribunal responded to the extortion claim. It took issue with the fact that the extortion claim was made after the hearing, stating that the first applicant had been given many previous opportunities including at the hearing where he could have raised his concern. The Tribunal did not accept that the first applicant had enemies or the issues he described. Ultimately, the Tribunal was not satisfied that the applicant was telling the truth in respect of the extortion claim.
It was submitted pursuant to s 423(a) of the Act, the first applicant is empowered to give the Registrar of the Tribunal a Statutory Declaration in relation to any matter of fact that the applicant wishes the Tribunal to consider. There is no time limit to this right and it can be implied that it exists up to the Tribunal’s time of decision.
It was submitted that the Tribunal, in its reasons, did not accept the first applicant had the enemies or issues he described, was erroneous for two reasons. First, the provenance of harm inherent in the extortion claim was not from the first applicant’s enemies or persons who he stated he feared would harm him, being Awami League officials, persons he arrested and Awami League criminal gangs. Secondly, the feared entities in respect of the extortion claim were unidentified and unknown persons who may target the first applicant for extortion on the perception that is wealthy. The inherent source of the fear of harm in the extortion claim was the first applicant’s status as a failed asylum seeker who had lived in Australia and had returned to Bangladesh.
It was submitted that in active and intellectual engagement with the extortion claim required the Tribunal to assess first, whether the applicant was a member of a particular social group, that being, a failed asylum seeker who had returned from Australia and would be perceived to be wealthy and secondly, whether there was a real chance of harm to the first applicant if he was to return to Bangladesh and thirdly, whether it related to all areas of Bangladesh.
It was submitted that factually, the Tribunal was required to assess and determine the claim by reference to country information to ascertain whether people with profiles akin to the first applicant are at risk of being or have been targeted for extortion in Bangladesh because of perceived wealth. If the Tribunal did find such a risk, it was required to assess and quantify the risk to the first applicant.
The Tribunal’s error arises in part from the Tribunal querying the veracity of the claim. The veracity of the facts were that the first applicant would be returning to Bangladesh from Australia and had lived in a wealthy and Western country such as Australia were not in question. The question was not whether the first applicant truthfully feared returning to Bangladesh because of the possibility of being targeted for extortion, rather, whether he had a well-founded fear of persecution arising from being a member of a particular group and whether there was a real chance he would be persecuted for membership of that particular group.
Reliance was placed on Chan v Minister for Immigration and Multicultural and Indigenous Affairs (1989) 169 CLR 379 that the Tribunals determination required a subjective and objective assessment. A fear of persecution as well founded if there is a real chance the noncitizen will be persecuted if he or she returns to his or her country of nationality. It is apparent that the Tribunal focused solely on the subjective assessment without incorporating the objective assessment. The Tribunal was also required to assess the extortion claim pursuant to s 36(2)(aa) of the Act and failed to do so. The extortion claim was not assessed in paragraph 90 to 94 of the Tribunal decision, because it was in relation to future harm and not past harm.
It was submitted that the failure to do so, was material and could realistically have resulted in a different decision.
THE FIRST RESPONDENT’S SUBMISSIONS
Notwithstanding the filing of what amounts to new grounds of judicial review and written submissions by the applicants’, the first respondent’s legal representatives have been able to file new written submissions. The Court acknowledges and thanks them for the expeditious manner in which they have been able to deal with what is effectively a new case by the applicant.
Counsel for the first respondent submitted that this matter was essentially a credibility based decision. The Tribunal found the applicants’ claims were not credible, due to the significant changes made to the first applicant’s claims over time, the various inconsistencies in his evidence and the implausibility of his evidence. Significantly, at paragraph 68 of its decision, the Tribunal found that the applicant had been making up his evidence as he went along in relation to the alleged land complaint. Secondly, at paragraph 76 of the Tribunal decision that, given the plethora of concerns about the first applicant’s past claims, the Tribunal did not accept that the first applicant was credible. Finally, when dealing with the first applicant’s claims that upon return to Bangladesh he would be targeted for extortion as he would be considered a wealthy returnee from Australia, the Tribunal was not satisfied that the first applicant was “telling the truth” in relation to these claims.
Ground one alleges that the Tribunal did not properly deal with the factual substance of the first applicant’s claims or failed to give genuine realistic consideration and/or embark upon active intellectual engagement in respect of those claims.
It was submitted that firstly the Tribunal’s reasons should not be scrutinised “minutely and finely with an eye keenly attuned to the perception of error”: (see; Minister for Immigration v Wu Shan Liang (1986) 185 CLR 259 (“Wu Shan Liang”) at [272]).
Secondly, in examining the reasons of a decision-maker to determine whether there was a lack of intellectual engagement, it is necessary to read the reasons in the light of the whole case as it was before the Tribunal. The failure to mention a particular piece of evidence should be analysed by reference to the whole of the material before the Tribunal and its prominence assessed by reference to all of the issues in the way in which the Tribunal conducted the matter. A conclusion that the decision-maker has not engaged in an active intellectual process “will not lightly be made and must be supported by clear evidence, bearing in mind that judicial review applicants carry the onus of proof”: (see; Singh v Minister for Home Affairs (2019) 267 FCR 200 at [37].
Thirdly a decision-maker is not required to refer to every aspect of every issue that was before them. Although a lack of consideration may be inferred from a decision-maker not expressly dealing with the matter in their reasons, such an inference will “not to readily be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point”: (see; WAEE v Minister for Immigration (2003) 236 FCR 593 at [46]-[47]).
Fourthly, it is been recognised that there is a need to exercise caution relation to the use of the expression “proper genuine and realistic consideration” because there is a danger it may draw the Court into impermissible merits review: (see; Minister for Immigration v Lium [2019] FCA 1850 (“Lium”) at [38]).
Fifth, whilst the Tribunal must demonstrate an active intellectual process in relation to application, this does not require the Tribunal to refer to every piece of evidence or contention that is before it, nor does require the Tribunal to provide lengthy and detailed reasons in relation to those matters it deals with: (see; Lium at [39]). It was submitted that at paragraph 6 to 45 of its decision, the Tribunal set out in great length, the claims and evidence of the first applicant in support of his review application. This included the first applicant’s claims relating to arresting Awami League leaders or political opponents when he was a Police Officer. In paragraph 19 of its decision, the Tribunal recited the evidence of the first applicant regarding his fears returning to Bangladesh because of the Awami League government as he had arrested a Awami League leaders when he was a Police Officer. Central to this claim is the reliability or veracity of the evidence given by the first applicant as to when he worked as a Police Officer, when he resigned or was dismissed.
Central to this issue, was when the applicants’ came to Australia and when the first applicant finished up his job as a Police Officer. At paragraph 43 of its decision, the Tribunal set out the terms of the letter it wrote to the applicants’ seeking clarification of the issue and seeking an explanation about the inconsistencies it perceived in the first applicant’s evidence. From paragraphs 48 to 94 of its decision, the Tribunal dealt with its consideration of his claims and evidence including his claims and evidence relating to arresting Awami League leaders or political opponents when he was a Police Officer. Contrary to the first applicant’s assertions, the claim was squarely raised and dealt with by the Tribunal. The Tribunal found the first applicant’s evidence to be vague and unconvincing because of the inconsistent evidence that he had given in relation to when and why he left the Police force. At paragraph 72 of its decision, the Tribunal concluded, that even giving the applicant the benefit of the doubt and accepting that he was a Policeman is at the relevant time, it did not accept “that the applicant lost his job because of the Awami League or that he generally feared harm in Bangladesh for any reason associated with his prior work as a Police Officer, political affiliation any family land dispute or any other matter”.
It was submitted that contrary to the first applicant’s claims and submissions, the Tribunal’s decision record clearly shows that it both identified the factual substance of the claim that he feared returning to Bangladesh for reasons associated with his prior work as a Police Officer. Further, the Tribunal demonstrated and applied an active intellectual process in considering the first applicant’s claim and that based on the inconsistencies and the implausibility of the applicants’ evidence that it did not accept that the claims were credible. The factual finding that the first applicant’s evidence was vague and unconvincing, was open to the Tribunal, given the evidence he had given and the inconsistencies in that evidence. It was submitted that it is not open to this Court to substitute what it might consider to be the correct factual conclusion in applications to it under s 476 of the Act.
It was submitted that the Tribunal dealt comprehensively with the evidence given by the applicant and made reasonable and logical findings as to whether or not that evidence was reliable, in order to determine whether the applicant had made out his claims.
Ground two contends that the Tribunal, when considering the first applicant’s claim that he would be targeted for extorting money as a returnee to Australia, failed to assess whether he had a well-founded fear of persecution for convention reason either pursuant to
s 5J and s 36(2)(a) of the Act, or under the complimentary protection provisions in
s 36(2)(aa) of the Act. The Tribunal set out its consideration of whether the extortion claim was met the criteria under s 36(2)(a) of the Act, at paragraphs 88 to 90 of its decision. The Tribunal concluded that as the claim was only made in a post-hearing submission dated 29 May 2019, it was not satisfied that the first applicant was now telling the truth in relation to this further claim.
The Tribunal rejected the claim for two reasons. First, the failure to raise it earlier and secondly, the applicant’s overall lack of credibility. At paragraph 89 of its decision, the Tribunal applied the real chance test to the extortion claim, finding that it was not satisfied that the applicants’ met the criteria for protection obligations under s 36(2)(a) of the Act. There is nothing objectionable about the way in which the Tribunal dealt with these claims. It was open to the Tribunal to come to the conclusion that the claims were not credible for the reasons it set out, including at paragraph 88 of its decision, the observation by the Tribunal that, it had “already found it does not accept the applicant has the enemies or the issues he has described”.
The Tribunal did not use its findings in relation to the first applicant’s other claims to dismiss the extortion claim as the first applicant suggests. The Tribunal was merely referencing those findings to support its conclusion, that the first applicant’s extortion claim similarly lacked creditability, which it did in the last three lines at paragraph 88 of its decision. It was submitted that credibility is a matter for the Tribunal alone: (see; Re Minister exparte Durairajasingham (2000) 168 ALR 407 at [423]).
The Tribunal set out its reasons at paragraph 91 of its decision, as to why it was not satisfied that the applicants’ met the criteria under the complimentary protection provisions. These included that it had rejected the first applicant’s claims in regard to past harm. Secondly, the Tribunal’s overall impression that the group (returnees from Australia) although at best a social group, is not politically affiliated with the BNP in Bangladesh. Thirdly, the Tribunal’s overall impression of the applicants actual interaction with the group, given he had never mentioned it prior to the departmental interview on 24 June 2014 had been minimal. Fifthly, taking into account DFAT country information, the Tribunal was not satisfied that the applicant was political in Bangladesh, was a high profile individual or that he would be somehow imputed with an adverse political opinion or that the authorities would now take an interest in him on his return.
It was submitted that the selection and reliance on country information and the weight to be given to it, is a matter for the Tribunal: (see; NAHI v Minister for Immigration [2004] FCAFC 19 at [11]). The Tribunal was open to make, on the evidence and country information before it, “findings as to primary facts, identify the inferences which may be properly drawn for them and applying those facts and inferences to an assessment of the “real chance” affecting the treatment of the applicant if he or she were to be returned” to Bangladesh: (see; Wu Shan Liang at [294]).
It was submitted that there was nothing that would establish that the Tribunal failed to engage in an active intellectual process or that it failed to give proper genuine realistic consideration to the applicants’ claims, or was otherwise unreasonable or irrational.
CONSIDERATION
It is to be noted first, that the second applicant, being the first applicant’s wife has left Australia and does not have an existing right to renter Australia. It was accordingly agreed between the parties that her application should be dismissed as incompetent by reason of her no longer being in the jurisdiction.
There can be little doubt that the Tribunal’s decision record shows a detailed and thorough engagement with the first applicant’s claims, and refers to the entirety of the evidence that was before the Tribunal including, evidence given to previous Tribunal hearings, representations made to Ministers and other material. Reference is made to the claims, including the first applicant’s fears as a result of being a Police Officer at paragraph 6 of the decision record.
Paragraph 7 of the decision record is a complete list of the documentary evidence. Following that, is a detailed discussion of the applicant’s claims including a motor vehicle accident at paragraphs 21 and 22 and his employment as a Police Officer at paragraphs 25 onwards.
Paragraph 43 of the Tribunal decision, details the letter sent to the applicant concerning as to the inconsistent evidence the Tribunal was of the view the first applicant had given. This includes concerns regarding the first applicant’s claims of fears due to his activities as a Police Officer. Paragraph 44 of the Tribunal decision sets out in full, the first applicant’s response to those concerns.
Given the detail in the decision regarding the first applicant’s claims, the Court rejects the assertion that the Tribunal failed to consider the claims that he faced persecution from those he had arrested as a Police Officer, members of the Awami League, and criminal gangs associated with the Awami League.
At paragraph 63 of its decision, the Tribunal stated that the evidence the first applicant gave at the hearing in relation to when he was in the Police force was vague and unconvincing and then gave reasons for that finding.
At paragraph 72 of its decision, the Tribunal did not accept that that applicant “genuinely fears harm in Bangladesh for any reason, including any reason associated with his prior work as a Police Officer, political affiliation, any family land dispute or any other matter.” The credibility concerns are repeated at paragraph 76.
It is clear that the Tribunal had considerable doubts as to the overall credibility of the first applicant. These doubts were based on the inconsistencies in the various claims the first applicant had made over time, the manner in which he gave his evidence before the Tribunal which was found to be vague and certain aspects, and the late raising of a claim in relation to extortion by criminal gangs based on the perception that he may be wealthy as a returnee from Australia. Specific findings in relation to the detailed claims suggested by Counsel for the applicants’, were, in the Courts view, subsumed by the finding of greater generality that it did not accept that the first applicant’s fears were genuine and that he faced harm as a result.
The Court is satisfied that the Tribunal did engage with each of the impugned claims, but rejected them on an overall basis for the credibility reasons it gave. As the Tribunal rejected them on a holistic basis, it was not necessary to make a detailed factual finding in relation to each separate aspect of the claims. The Court is satisfied that the adverse credibility findings are not tainted by legal unreasonableness, irrationality or illogicality. The findings were open to the Tribunal based on the analysis of the evidence before it, and for the reasons it gave. Accordingly, ground one has no merit.
Ground two asserts that the Tribunal failed to realistically engage with the extortion claim. The Court does not accept that assertion. The extortion claim was specifically dealt with in some length at paragraph 88 of the Tribunal decision and onwards. The Tribunal stated that it had already found that the first applicant did not have the enemies or issues he described. The Tribunal found that, given that the first applicant had many previous opportunities including at the hearing to raise his concern (in relation to the extortion claim) and given his overall lack of credibility, the Tribunal did not find that the first applicant was telling the truth when he stated he feared harm in relation to extortion.
The assertion that the Tribunal, based on Chan, was required in this case to make a two stage examination of the first applicant’s fears based on a subjective level and then an objective stage based on country information to determine if the fears are well founded is misplaced. Such a process is only necessary if the Tribunal finds as a fact that the applicant subjectively held the fears he claimed. The Tribunal found at paragraph 88 of its decision, that the first applicant was not telling the truth that he held fears due to the possibility of extortion. That is, the first applicant was not genuinely fearful for that reason.
The Court is satisfied that it was open to the Tribunal to make that finding based on the evidence that was before it and for the reasons it gave. Having found that the Tribunal did not accept the claim of fear, there was no need for it to determine whether or not the first applicant was a member of a particular social group and as a result whether he would be persecuted for membership of that social group if he were returned. The Tribunal simply dismissed the claim, because it did not accept that the first applicant was being truthful when he made the claim of fear. As the Tribunal did not accept the claim as genuine, there was no requirement for the Tribunal to go any further.
As the Tribunal found that the first applicant did not genuinely fear if he were returned he would be the subject of extortion, it was unnecessary for it to consider it under the complimentary protection criteria. There was no claim to consider. Ground two has no merit.
CONCLUSION
Accordingly, the application is dismissed.
I certify that the preceding eighty-one (81) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys. Associate:
Dated: 24 August 2021
0
11
1