CXB16 v Minister for Immigration
[2018] FCCA 2569
•5 September 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CXB16 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2569 |
| Catchwords: MIGRATION – Application for protection visa – Relevant criteria not satisfied – Application dismissed. |
| Legislation: Migration Act 1958 (Cth), s.424A |
| Cases cited: SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 |
| Applicant: | CXB16 |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | BRG 916 of 2016 |
| Judgment of: | Judge Egan |
| Hearing date: | 5 September 2018 |
| Date of Last Submission: | 5 September 2018 |
| Delivered at: | Brisbane |
| Delivered on: | 5 September 2018 |
REPRESENTATION
| Applicant: | Self-represented |
| Counsel for the First Respondent: | Ms Forder |
| Solicitors for the First Respondent: | MinterEllison |
| Second Respondent | Submitting appearance |
IT IS ORDERED ON A FINAL BASIS:
The Amended Application filed on 20 February 2017 be dismissed.
The Applicant pay the First Respondent’s costs fixed in the amount of seven thousand, three hundred and twenty-eight dollars ($7,328.00).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 916 of 2016
| CXB16 |
Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of Bangladesh who arrived in Australia on 20 March 2013 as an unauthorised maritime arrival. On 16 July 2013, he applied for a protection visa. On 29 October 2014, the delegate to the Minister refused to grant to the applicant a protection visa. On 10 November 2014, the applicant applied to the Administrative Appeals Tribunal (“the tribunal”) for a review of the delegate's decision. The hearing before the tribunal took place on 25 February 2016. A further hearing was held on 26 August 2016 after which the applicant's representative provided the tribunal with further written submissions in support of his application on 30 October 2016. On 15 September 2016, the tribunal affirmed the delegate's decision.
The applicant seeks judicial review of the decision of the tribunal, dated 15 September 2016. The amended application, filed on 20 February 2017, is the application for review before the court. It contains three grounds as set out on pages 3 and 4 of that document. To a significant extent, each of the three grounds are intertwined. The first ground asserts that the tribunal failed to carry out its obligations pursuant to the provisions of section 424A(1) of the Migration Act 1958 (Cth) (“the Act”). Section 424A of the Act provides as follows:
Information and invitation given in writing by Tribunal
(1) Subject to subsections (2A) and (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
(2) The information and invitation must be given to the applicant:
(a) except where paragraph (b) applies--by one of the methods specified in section 441A; or
(b) if the applicant is in immigration detention--by a method prescribed for the purposes of giving documents to such a person.
(2A) The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.
(3) This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b) that the applicant gave for the purpose of the application for review; or
(ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or
(c) that is non-disclosable information.
(4) A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 426A(1F).
There was no force to such submission because there was no information which fell into the category of information covered by the section in respect of which clear particulars ought to have been given. In essence, there was no information or documentation which would constitute the reason, or part of the reason, for the tribunal affirming the decision under review. At paragraph 14 of the reasons of the tribunal (court book page 201), the tribunal set out the evidence which constituted the review material before the tribunal.
As was pointed out by Ms Forder, as counsel for the first respondent, all of the documentation referred to in paragraph 14, apart from the documentation annexed to the first dot point, was documentation which the applicant gave during the process that led to the making of the decision that was under review. That requirement is as set out in section 424A(3)(ba) of the Act.
Insofar as the first dot point in paragraph 14 of the reasons refers to notes from the applicant's irregular maritime arrival entry interview conducted in Darwin on 3 April 2013 (together with an audio recording thereof) is concerned, it was pointed out in submissions that the High Court in SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609, at paragraphs 17 and 18, had set out the law in respect of the operation of section 424A in circumstances such as the present. Those paragraphs are as follows:
[17] Secondly, the appellants assumed, but did not demonstrate, that the statutory declaration “would be the reason, or a part of the reason, for affirming the decision that is under review”. The statutory criterion does not, for example, turn on “the reasoning process of the tribunal”, or “the tribunal’s published reasons”. The reason for affirming the decision that is under review is a matter that depends upon the criteria for the making of that decision in the first place. The tribunal does not operate in a statutory vacuum, and its role is dependent upon the making of administrative decisions upon criteria to be found elsewhere in the Act. The use of the future conditional tense (would be) rather than the indicative strongly suggests that the operation of s 424A(1)(a) is to be determined in advance — and independently — of the tribunal’s particular reasoning on the facts of the case. Here, the appropriate criterion was to be found in s 36(1) of the Act, being the provision under which the appellants sought their protection visa. The “reason, or a part of the reason, for affirming the decision that is under review” was therefore that the appellants were not persons to whom Australia owed protection obligations under the Convention. When viewed in that light, it is difficult to see why the relevant passages in the appellants’ statutory declaration would itself be “information that the tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review”. Those portions of the statutory declaration did not contain in their terms a rejection, denial or undermining of the appellants’ claims to be persons to whom Australia owed protection obligations. Indeed, if their contents were believed, they would, one might have thought, have been a relevant step towards rejecting, not affirming, the decision under review.
[18] Thirdly and conversely, if the reason why the tribunal affirmed the decision under review was the tribunal’s disbelief of the appellants’ evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting “information” within the meaning of para (a) of s 424A(1). Again, if the tribunal affirmed the decision because even the best view of the appellants’ evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute “information”. Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs that the word “information”:
… does not encompass the tribunal’s subjective appraisals, thought processes or determinations … nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc …
If the contrary were true, s 424A would in effect oblige the tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly “information” be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant “information” was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself.
Relevantly, the notes from the applicant's irregular maritime arrival entry interview were notes which could not relevantly constitute, in their terms, a "rejection, denial or undermining of the appellant's claims" made in respect of his application for a visa. Accordingly, there is nothing in ground 1 of merit and the claim, in that respect, is dismissed. As to ground 2, such ground is merely a repeat of the allegation that the tribunal had failed to carry out its functions appropriately. And for the same reasons as set out in respect of ground 1, the claims made in ground 2 are without merit.
Ground 3, similarly, relies upon the claim as made in terms of the particulars of ground 1. Otherwise, however, it might be held to have been without merit for that reason alone. However, it may be asserted that the tribunal failed to properly consider the applicant's claims and fell into jurisdictional error thereby. What is clear from a reading of the reasons of the tribunal, however, is that in respect of the applicant's claim that he feared harm if he returned to Bangladesh due to his and his family's support for the Bangladesh National Party (the BNP), the applicant had such evidence as he presented duly considered by the tribunal.
At paragraphs 17 to 44 inclusive of the tribunal's reasons, the tribunal dealt with each of the applicant's claims relating to his involvement with the BNP - violence perpetrated upon the applicant arising out of an attack in mid-2012 - and in respect of events alleged to have occurred after the applicant's departure from Bangladesh specifically relating to the applicant and his cousin. The tribunal, at paragraph 16 of its reasons, expressed that it had extensive concerns about the applicant's credibility, finding it very difficult to obtain direct clear statements from him.
The tribunal found that the applicant preferred to make broad assertions rather than engage in a detailed discussion of his personal experiences. The tribunal then went on to assess the substance of the claims made by the applicant at 19 and 20. The tribunal found that whilst the applicant might have been a supporter of the BNP in the past, he had been a low level supporter, and his level of interest at the time of the hearing was negligible. Likewise, the tribunal did not find that the applicant's family supported the BNP, or that the involvement of his cousin in BNP politics warranted a conclusion that the applicant would suffer harm if returned to Bangladesh (see reasons at 25 and 30).
The tribunal specifically dealt with the applicant's claims about alleged Awami League supporters having attacked him in mid-2012, finding that the applicant was not a target, the attack having occurred some three and a half years after his cousin allegedly disappeared in late 2008. It was also found that the Awami League had not pursued other members of his cousin's family who lived in the local area, the tribunal finding that it did not believe that there was any politically motivated attack on the applicant at the time in mid-2012 (see reasons at 35 and 36).
The tribunal addressed the issue of whether the applicant had left his home village after a politically motivated attack in mid-2012, and his assertion that he was hiding nearby for about six months as a recluse. It also addressed the question as to whether Awami League activists came to his family's home looking for him, harassing his father and other members, and the assertion that the applicant had left for Dhaka in response to ongoing Awami League threats or because he was living in fear and unsustainable conditions (see reasons at 41).
The tribunal, at 43 of its reasons, did not accept that the incidents as claimed by the applicant had occurred since he had left Bangladesh, finding that the applicant had fabricated those allegations to bolster his case. The tribunal then assessed the risk of harm faced by the applicant on return to Bangladesh. It found that the applicant would have only a very low profile as a person who favoured the BNP, and the tribunal did not accept that the applicant would be motivated to engage in any political activities (see reasons at 43 to 50 inclusive).
The tribunal was not satisfied that if the applicant returned to Bangladesh that there was a real chance that he would face serious harm for reasons of his actual or imputed political beliefs, nor did it accept that he had a well-founded fear of persecution. The tribunal was not satisfied that there was a real risk that the applicant would face significant harm if returned to Bangladesh (see reasons at 51 to 55 inclusive).
The tribunal did not accept that if the applicant returned to Bangladesh at any time in the foreseeable future that there was a real chance that he would face serious harm because of that, notwithstanding any low‑level support of the BNP or any past association he had had with the party through his extended family. As to the complementary protection criteria, the tribunal found, at paragraph 55 of the reasons, that there were not any substantial grounds for believing, as a necessary and foreseeable consequence of the applicant being removed from Australia to Bangladesh, that there was a real risk that he would suffer significant harm relying, as it did so, upon its findings in relation to the protection visa considerations referred to earlier about which it made findings.
In all the circumstances, it has not been demonstrated that the tribunal has fallen into any jurisdictional error. The application for review is dismissed.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Egan
Date: 21 September 2018
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