CVH17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 769
Federal Circuit and Family Court of Australia
(DIVISION 2)
CVH17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 769
File number(s): SYG 2011 of 2017 Judgment of: JUDGE LAING Date of judgment: 16 September 2022 Catchwords: MIGRATION – application for judicial review of a decision by the Administrative Appeals Tribunal affirming decision not to grant a protection visa – whether the Tribunal denied the applicant procedural fairness – whether the Tribunal failed to comply with s 424A of the Migration Act 1958 (Cth) – whether contended errors by the Tribunal occurred and were material – application dismissed Legislation: Migration Act 1958 (Cth) s 424, s 424A, s425 Cases cited: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337
Minister for Immigration & Multicultural Affairs v Al Shamry [2001] FCA 919; 110 FCR 27
Minister for Immigration and Border Protection v MZYTS and Another [2013] FCAFC 114; 230 FCR 431
Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR 507
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
NAZY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 744; 87 ALD 357
SZBYR & Anor v Minister for Immigration and Citizenship [2007] HCA 26; 96 ALD 1
Division: Division 2 General Federal Law Number of paragraphs: 49 Date of hearing: 5 September 2022 Counsel for the Applicant: The applicant appeared in-person with the assistance of an interpreter Solicitor for the First Respondent: Mr M Gao (HWL Ebsworth) appeared in-person Counsel for the Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 2011 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CVH17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE LAING
DATE OF ORDER:
16 September 2022
THE COURT ORDERS THAT:
1.The application 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 LAING
Before the Court is an application for judicial review of a decision made by the Administrative Appeals Tribunal (Tribunal) on 6 June 2017. The Tribunal affirmed a decision of a delegate (Delegate) of the first respondent (Minister) refusing to grant the applicant a Protection (Class XA) (Subclass 866) visa (protection visa).
background
The applicant is a citizen of Bangladesh. He visited Australia on a number of occasions as the holder of a tourist visa. The most recent arrival prior to his application for a protection visa was on 3 November 2014.
On 28 January 2015, the applicant applied for a protection visa.
The Delegate refused the application on 30 July 2015.
On 24 August 2015, the applicant applied to the Tribunal for review of the Delegate’s decision.
The applicant participated in a hearing before the Tribunal on 18 April 2017, with the assistance of an interpreter.
On 6 June 2017, the Tribunal decided to affirm the Delegate’s decision to refuse the applicant a protection visa.
the tribunal’s decision
The Tribunal accepted that the applicant was a national of Bangladesh (at [21]).
At [23], the Tribunal stated:
23.The Tribunal has extensive concerns about the truthfulness of the applicant's claims. Although his claims are broadly consistent with general country information about Bangladesh - including its political climate, extortion and police corruption - there are strong indicators that he was not speaking from lived personal experience. On many occasions, he was unable to provide meaningful detail or context to his claims, to substantiate his claims, or to reconcile his conduct (including his movements within Bangladesh and timing of his travel to Australia) with his claimed fear of persecution (or significant harm). The Tribunal's more detailed consideration of these claims and evidence follows below.
The Tribunal made the following findings:
(a)Claim regarding support of the Bangladesh Nationalist Party (BNP): While the Tribunal accepted that the applicant tended to prefer the BNP (over the Awami League (AL) or other Bangladeshi political parties), and that he had some affiliation with the BNP after establishing his business, the Tribunal did not accept that the applicant's political interests or past engagement extended beyond this. The Tribunal did not accept that the applicant had any local profile as a person who favoured the BNP, or that he had any ongoing political opinion (at [37]). The Tribunal placed little weight on a purported certificate regarding his political involvement. This document suggested greater involvement than the applicant claimed. Its provenance was unclear and country information indicated documentary fraud was prevalent in Bangladesh (at [32]-[35]).
(b)Claim regarding targeting by AL Cadres: The Tribunal found the applicant's evidence about this problematic. He had little contextual information, and according to his account did not appear to have made genuine enquiries about the extent of the extortion demands, how others dealt with them, and what forms of assistance or support might be available (at [41]-[42]).
(c)Claim about request for police assistance: The Tribunal observed that the claims about police refusal of assistance were supported by country information which emphasised problems with police inefficiency and corruption in Bangladesh. However the Tribunal’s key concern was “whether the applicant was in fact subject to extortion from AL-affiliated thugs, and whether he approached the police for help” (at [44]).
(d)Claim that AL cadres must have learned about his approach to the police and made false charges: In rejecting this aspect of the applicant’s claims, the Tribunal stated:
48.The Tribunal has significant problems with these claims, and the supporting evidence. First, as discussed at the hearing, it is difficult to grasp why the applicant is a person of interest to local AL-affiliated thugs, given that he has only a low-profile interest in the BNP; that he allegedly avoided payment of protection money (albeit at the cost of having to sell the business); and that his claimed approach to the police resulted in no action. Second, for the reasons given above, it is difficult to place weight on the purported transcripts of police documents as independent corroboration of the applicant's claims. Third, the Tribunal does not believe that the applicant found out about these false charges through [H], a fellow shopkeeper (rather than through any direct approach by investigating police or others). The Tribunal formed the view that the applicant had not thought this aspect of his claims through, and was improvising when asked about it. Fourth, the Tribunal does not accept at face value that the applicant engaged a lawyer in the matter, but has no details or records relating to that. Finally, as discussed below, the applicant's conduct - in particular, his continued stay in Bangladesh until late November 2014 - appears inconsistent with that of a person who is at risk of being prosecuted on trumped-up charges.
(e)Claim that the applicant was forced to close his business due to pressure from the AL cadres and Bangladesh authorities: The Tribunal considered that the applicant closed his business in an orderly manner, and did not accept that it was in response to any imminent threats (from AL cadres, thugs or Bangladeshi authorities) (at [49]).
(f)Departure from Bangladesh and subsequent events: The Tribunal was not satisfied that the applicant had given a “full and frank” account of his activities in Bangladesh after selling his shop. His continued residence in the family home suggested he did not fear harm from anyone. The applicant’s delay in departing Bangladesh added to these doubts. Whilst the Tribunal accepted that the applicant paid a large sum for his travel to Australia, it did not accept that this involved bribes or similar payments. The applicant’s delay of two months in seeking protection after arriving in Australia was considered to add to the Tribunal’s doubts about his claims. The Tribunal also expressed concerns regarding the “provenance and genuineness” of documents he had submitted in support of those claims (at [50]-[56]).
(g)The Tribunal summarised its factual findings at [57]-[63] as follows:
57.The Tribunal finds on the available material that the applicant was frustrated that he could not join his brothers in Saudi Arabia (due to new visa restrictions) and by his prospects as a bank employee, and that he set up a computer store in a market The Tribunal accepts that the applicant may have made some BNP contacts during this period, and that he, like other store holders, was required to pay certain fees which may have been, in effect, protection money. In light of the applicant's scant evidence about his BNP activities, and the Tribunal's overall concerns about his credibility, the Tribunal does not accept that he visited BNP offices during 2010 and 2011, or engaged in any other activities that might have given him a local profile.
58.In light of the concerns set out above, considered cumulatively, the Tribunal does not accept that AL cadres (or others) singled out the applicant and his business for higher fees, or made extortion demands or threats, due to his BNP preference (or for other reasons). It also does not accept that the applicant sought police protection, or that the police refused to protect him from AL cadres' extortion demands and intimidation. The Tribunal also does not accept that the applicant was forced to close his business due to his fear of escalated threats from AL cadres or others. It also does not accept that there are any false charges against him (including false charges brought by AL cadres, with possible police connivance), or any outstanding court action or arrest warrant. It also does not accept that he has engaged a lawyer to handle the matter.
59.The Tribunal finds that the applicant has given an unreliable account of his activities in Bangladesh between May 2014 and his departure in November 2014. It does not accept that he was ever in hiding, or taking other measures to avoid harm from AL cadres, the Bangladeshi authorities (pursuing the false charges) or others.
60. The applicant visited Australia twice, before his most recent arrival in November 2014. The Tribunal finds that his departure from Bangladesh was unrelated to his now-rejected protection claims, and did not involve the payment of bribes or any other actions to avoid harm. It also does not accept that there are any pending false criminal charges against the applicant, that the police have come to his home looking for him, or that the Bangladeshi authorities have any related adverse interest in him….
63.The applicant's account of the AL government's treatment of BNP and other opposition groups is broadly consistent with country information. However, in light of its assessment that the applicant has minimal political interests, the Tribunal does not accept that the Bangladesh authorities ever prevented the applicant from engaging in political activities; that the police denied him protection (on the grounds that he favours the BNP and/or was complaining against AL-affiliated thugs); or that he refrained from political activism in order to avoid persecution or significant harm.
The Tribunal concluded that there was no real chance of the applicant attracting adverse interest on account of his political activities or opinion (at [66]). The Tribunal did not accept that the applicant faced a real chance of being targeted on political grounds and subjected to extortion or similar demands resulting in serious harm (at [67]). Nor did the Tribunal accept the applicant faced a real chance of significant harm for the reasons claimed (at [71]-[72].
The Tribunal ultimately found that it was not satisfied that the applicant’s circumstances, either individually or cumulatively, were capable of attracting Australia’s protection obligations under the Migration Act 1958 (Cth) (Act). Accordingly, the Tribunal affirmed the Delegate’s decision (at [69]-[77]).
proceedings before this court
The applicant relied upon an amended application filed on 20 December 2017 containing the following grounds of judicial review:
1.The Administrative Appeal Tribunal (The Tribunal) made a jurisdictional error in that the applicant was denied procedural fairness and denied natural justice.
2.The tribunal in its decision made and signed on 6 June 2017 relied upon country information and inconsistencies in the appellant's claims set out in the protection visa application and the claims made before the Tribunal as part of the reason for affirming the decision under review. It failed to put those inconsistencies in writing to the appellant for comment. Please refer to NAZY v MIMIA [2005] FCA 744 (23 June 2005) and MIMIA v AL Shammy (2001) 110 FCR 27 (24 July 2001).
3.The tribunal did not provide the applicant with particulars of information whatever they obtained, if they, through the DFAT of Australian High Commission in Dhaka, Bangladesh. The applicant was not given an opportunity to comment on any adverse information available to the tribunal before the hearing. (Please refer to the attached transcript of the hearing with the Tribunal.)
4.The applicant is the appellant of an application for review a decision of the Tribunal (second respondent), which was rejected by the tribunal on 6 June 2017. A legal issue which is ‘Internal relocation’ was not properly raised by the tribunal, to comment on, during the review process and no adverse material were put to the applicant that were take into consideration while the second respondent made his decision. (Please refer to the attached transcript of the AAT hearing.)
5.The tribunal has briefly described the definition of the refugee defined by the UN Convention and the definition of Complementary Protection visa (ss36(2A) of Migration Act 1958) that the Tribunal has assessed and reviewed the primary decision. The Tribunal, at any stage, did not confirm with the applicant whether he understood that crucial issues at all. Such failure amounted to a denial of procedural fairness and natural justice. (Please refer to the attached transcript)
6.A further possible ground relates to the non-compliance by the Tribunal with s424A of the Migration Act 1958 in relation to that extract from the primary decision on which it relied. There is a reasonable argument that provided under s 422, there was a failure to comply with s424A in relation to the decision of the Tribunal. The tribunal was quite influenced and biased by the primary decision given by the delegate.
7.Post hearing the tribunal did not put any adverse issues, to the applicant, to make any comments, in writing, which were the reason, or part of the reason, for deciding that the applicant was not entitled to a protection visa.
8.The Tribunal did not use the country information as specific however, the general information gathered by the Tribunal considered to weigh against applicant’s case in the final outcome. The Tribunal used all the information for a matter of reasoning and evaluation of the applicant's case for the protection visa. The tribunal ‘misjudged’ the claim and did not have a fresh look on to the claim.
9.In section “Analysis and Assessment” of the Tribunal’s decision it is clearly evident that the tribunal was rather interested to discredit the applicant's claim than to have a proper and fair look into the reason of his ‘well founded fear’. (Please refer to the attached hearing transcript.) The tribunal was desperate to damage the applicant's credibility by unreasonably pursuing him on the aforementioned issue which was one of the information and or part of the information for which the Tribunal affirmed the primary decision.
Ground 1
Ground 1 contended that the Tribunal denied the applicant procedural fairness and natural justice. The ground was unparticularised.
At hearing, the applicant explained that his essential complaint with the Tribunal’s decision was that the Tribunal had not believed his claims, which were true.
As I discussed with the applicant, however, this Court has no power simply to remake the decision of the Tribunal. What this Court can do is consider whether the Tribunal’s decision was materially affected by any legal error. Absent any particulars, ground 1 does not disclose any such error. It is therefore unable to succeed.
Ground 2
Ground 2 appeared to invoke s 424A of the Act.
However, that provision did not require the Tribunal to put general country information to the applicant (s 424(3)(a) of the Act). Nor did it require the Tribunal to put to the applicant inconsistencies in his evidence: SZBYR & Anor v Minister for Immigration and Citizenship [2007] HCA 26; 96 ALD 1 (SZBYR) at [18].
In this regard, the cases of NAZY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 744; 87 ALD 357 and Minister for Immigration & Multicultural Affairs v Al Shamry [2001] FCA 919; 110 FCR 27 are unable to assist the applicant. Those cases concerned the operation of s 424A(3)(b) of the Act. They also predate SZBYR.
In any event, the Tribunal’s decision in this case does not appear to have turned on inconsistent statements made by the applicant. Rather, the Tribunal’s credibility concerns were premised on limitations in the detail, context and substantiation of the applicant’s claims. The Tribunal discussed its main concerns in this regard with the applicant at the hearing before the Tribunal (at pages 41-42 of the transcript).
At the hearing before this Court, the applicant drew attention to [48] of the Tribunal’s decision, which referred to his delay in leaving Bangladesh as conduct appearing “inconsistent with that of a person who is at risk of being prosecuted on trumped-up charges”. However, the Tribunal’s thought processes in this regard were not “information” for the purposes of s 424A: SZBYR at [18]. The applicant was on notice from the Delegate’s decision (at CB 223), for the purposes of s 425 of the Act, that his delay in leaving Bangladesh was relevantly in issue. This was also discussed with him at the Tribunal hearing (42.17 of the transcript).
For the above reasons, no relevant error is disclosed by ground 2.
Ground 3
Ground 3 contended that the Tribunal failed to put the particulars of adverse DFAT country information to him for comment.
The Tribunal did have regard to an updated DFAT report that was published after the Delegate’s decision. However, that report appears to have been broadly consistent with the information before the Delegate. The report in some respects appears to have been used in a manner favourable to the applicant (such as at [44], where the Tribunal considered country information that was consistent with the applicant’s claims).
There was material regarding documentary fraud in Bangladesh that was unfavourable to the applicant. This was referred to at [32] of the Tribunal’s decision. However, s 424A was not enlivened by such material: s 424(3)(a) of the Act. The applicant was on notice from the Delegate’s decision that the prevalence of documentary fraud, and therefore the authenticity of his documents, was in issue for the purposes of s 425 of the Act. Further, the Tribunal put to the applicant country information regarding this issue (39.37 of the transcript).
Ground 3 is therefore unable to succeed.
Ground 4
Ground 4 contended that the issue of internal relocation should have been put to the applicant.
However, the Tribunal’s decision was not based upon internal relocation. The Tribunal concluded that the applicant did not face a real chance of relevant harm in his home area. It was therefore not required to consider the issue of relocation and did not do so.
Internal relocation was therefore not an “issue” of which the applicant was required to have notice for the purposes of s 425 of the Act. Nothing capable of enlivening s 424A of the Act is apparent on the material before the Court.
It follows that ground 4 is unable to succeed.
Ground 5
Ground 5 contended that the Tribunal failed to confirm that the applicant understood the “crucial issues”. This appeared to be by reference to the definitions under the Act regarding the refugee criterion and complementary protection.
However, the applicant was on notice from the Delegate’s decision that his ability to meet these criteria was in issue. Further, pages 2 to 3 of the transcript in evidence indicates that the Tribunal additionally explained the criteria to the applicant at the commencement of his hearing before the Tribunal, which the applicant indicated he had understood.
It is not apparent how any breach of s 425 of the Act could be contended to have occurred in these circumstances.
Ground 5 is therefore unable to succeed.
Ground 6
Ground 6 contended that Tribunal failed to comply with s 424A of the Act regarding the “extract from the primary decision on which it relied”. The ground also alleged that the Tribunal was “biased by the primary decision”.
It was not clear what extract from the Delegate’s decision the ground contended that the Tribunal relied upon. This was not elaborated upon by the applicant at the hearing. The Tribunal referred generally to the Delegate’s decision briefly at [18] when identifying the evidence that was before it. However, it is not apparent that any substantial extract from that decision made its way into the Tribunal’s decision.
As the Delegate’s decision was provided by the applicant to the Tribunal, it was incapable of enlivening s 424A of the Act: (s 424A(3)(b), Minister for Immigration and Citizenship v Chamnam You [2008] FCA 241). No breach of this provision has been demonstrated.
It is well established that allegations of bias must be “distinctly made and clearly proved”: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR 507 at [72]. This has not occurred in the present case. The applicant has not explained how the Tribunal could be said to have been inalterably committed to a conclusion. Nor has the applicant explained how a “fair-minded lay observer might reasonably apprehend” that an impartial mind may not have been brought to determination of the matter (Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 at [33] per Gleeson CJ and McHugh, Gummow and Hayne JJ). On my own review of the materials, I have not been able to identify any basis capable of establishing such a ground.
It follows that ground 6 is unable to succeed.
Ground 7
Ground 7 repeated the applicant’s contention that the Tribunal failed to put adverse material to the applicant. The language used suggested reliance upon s 424A of the Act. However, the ground is unparticularised and does not appear to go further than the applicant’s complaints that I have considered in relation to grounds 1 to 6.
Ground 7 is therefore unable to succeed.
Ground 8
Ground 8 contended that the Tribunal “did not use the country information as specific” but used general information in a manner that was adverse to the applicant. The ground as framed was somewhat unclear. The applicant did not explain through particulars or at the hearing why the Tribunal’s use of country information was not open to it nor what (if any) other use he contended ought to have been made of country information. Subject to considerations of logicality and reasonableness, the selection and use of country information is generally a matter for the Tribunal: see for example NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [13] and Minister for Immigration and Border Protection v MZYTS and Another [2013] FCAFC 114; 230 FCR 431.
As noted above, the Tribunal used some country information in the applicant’s favour. At [23], the Tribunal accepted that the applicant’s claims were broadly consistent with country information. Some country information was used in a manner adverse to the applicant (such as information about the prevalence of documentary fraud, at [32]). However, the Tribunal’s reliance upon such information appears to have been fairly orthodox. Plainly enough, the prevalence of documentary fraud generally in Bangladesh was logically probative of the Tribunal’s ability, generally, to rely upon documents said to have been sourced from Bangladesh. The applicant has not identified any more recent or specific information that the Tribunal was obliged to have considered, but overlooked.
For these reasons, ground 8 is unable to succeed.
Ground 9
Ground 9 contended that in the section “Analysis and Assessment”, the Tribunal was “interested to discredit” the applicant’s claims and was “desperate to damage the applicant's credibility by unreasonably pursuing him on the aforementioned issue”. There does not appear to be a particular section of the Tribunal’s decision titled “Analysis and Assessment”. However, analysis and assessment of the applicant’s claims occurred at various parts throughout the section of the Tribunal’s decision entitled “Consideration of Claims and Evidence, and Findings”.
The Tribunal’s reasoning, as set out above, does not evidence any “desperation” on the part of the Tribunal to discredit the applicant. Nor is anything apparent in the transcript of the hearing that would be capable of supporting this clam. Bias is not established simply because the Tribunal disbelieves an applicant, or otherwise raises issues with the credibility of their evidence or claims.
The applicant’s complaint in this regard does not appear to take his contentions beyond those raised in the grounds considered above (particularly ground 6). For the reasons given above, the applicant’s complaint of bias is unable to succeed.
conclusion
The application to this Court does not demonstrate any jurisdictional error in the decision of the Tribunal. It must therefore be dismissed.
I will hear the parties in relation to costs.
I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing. Associate:
Dated: 16 September 2022
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