DBD16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 137
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DBD16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 137
File number(s): PEG 157 of 2021 Judgment of: JUDGE LUCEV Date of judgment: 18 March 2022 Catchwords: MIGRATION – Judicial review – decision of the Administrative Appeals Tribunal – Safe Haven Enterprise visa – citizen of Bangladesh – whether grounds particularised – whether serious error – whether wrong issue identified – whether incorrect interpretation of the law – whether relevant materials disregarded – grounds which do not assert jurisdictional error – whether wrong country information relied upon – whether jurisdictional error Legislation: Emigration Ordinance 1982 (Bangladesh)
Migration Act 1958 (Cth) ss 36, 438, 474, 476
Overseas Employment and Migration Act 2013 (Bangladesh)
Cases cited: AAL17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 815
AVJ17 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2022] FedCFamC2G 24
BOL15 v Minister for Immigration and Border Protection & Anor [2016] FCCA 1994; (2016) 312 FLR 408
BOX16 v Minister for Immigration & Border Protection [2020] FCA 801
BOX16 v Minister for Immigration and Border Protection [2021] HCASL 26
CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496; (2016) 70 AAR 413
DBD16 v Minister for Immigration and Border Protection [2018] FCCA 1801; (2018) 334 FLR 431
DBD16 v Minister For Immigration, Citizenship, Migrant Services And Multicultural Affairs [2020] FCCA 1249
DBD16 v Minister For Immigration, Citizenship, Migrant Services And Multicultural Affairs [2021] FCA 30
DKN20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1158
DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784
EGW17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1177
FHX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 202
Ludgero v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1060; (2021) 358 FLR 215
Maroun v Minister for Immigration & Citizenship [2009] FCA 1284; (2009) 112 ALD 424
Minister for Home Affairs v DUA16 [2020] HCA 46; (2020) 95 ALJR 54; (2020) 385 ALR 212
Minister for Immigration & Border Protection v Pandey & Ors [2014] FCA 640; (2014) 143 ALD 640
Minister for Immigration & Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437; (2014) 308 ALR 280; (2014) 139 ALD 50
Minister for Immigration & Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 138 ALD 181
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123; (2009) 259 ALR 429; (2009) 111 ALD 15.
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248
Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99; (2013) 302 ALR 672; (2013) 136 ALD 41
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1
Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225
Minister for Immigration and Multicultural and Indigenous Affairs v Katisat [2005] FCA 1908
Minister for Immigration and Multicultural and Indigenous Affairs v Maltsin [2005] FCAFC 118; (2005) 88 ALD 304
MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392; (2015) 238 FCR 158
MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 95 ALJR 441; (2021) 390 ALR 590
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
NWWJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 176
Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300
SZUIJ v Minister for Immigration and Border Protection [2016] FCA 1574
VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117
WZAVW v Minister for Immigration and Border Protection [2016] FCA 760
Zangmo v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 25
Division: Division 2 General Federal Law Number of paragraphs: 49 Date of last submission/s: 28 February 2022 Date of hearing: 28 February 2022 Place: Perth The Applicant: In person (via telephone with the assistance of an interpreter) Counsel for the First Respondent: Mr J. Barrington Solicitor for the First Respondent: Australian Government Solicitor For the Second Respondent: Submitting appearance, save as to costs ORDERS
PEG 157 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DBD16
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LUCEV
DATE OF ORDER:
18 MARCH 2022
THE COURT ORDERS THAT:
1.The originating application filed 29 July 2021 be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LUCEV
INTRODUCTION
Before the Court is an application for judicial review filed by the applicant, DBD16, on 29 July 2021 (“Judicial Review Application”) under s 476 of the Migration Act 1958 (Cth) (“Migration Act”). The Judicial Review Application concerns a decision of the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively) handed down 30 June 2021. The Tribunal Decision confirmed a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“Minister”), to refuse to grant DBD16 a Safe Haven Enterprise visa (“SHE Visa”).
The Judicial Review Application contains six grounds which are set out below at [18] (ground 1), [24] (ground 2), [28] (ground 3), [30] (ground 4), [33] (ground 5) and [36] (ground 6). Additionally, the Minister raised a further matter discussed at [40]-[47] below.
The following materials are before the Court:
(a)a Court Book (“CB”) numbering 553 pages (“Exhibit 1”);
(b)the affidavit of DBD16 affirmed 28 July 2021 annexing the Tribunal Decision; and
(c)the Minister’s written submissions filed 10 February 2022 (“Minister’s Submissions”).
JUDICIAL REVIEW APPLICATION
Background
The relevant background to the Judicial Review Application is as follows:
(a)on or around 17 October 2012 DBD16, a citizen of Bangladesh, arrived in Australia at the Ashmore and Cartier Islands: CB 63, and he arrived on Christmas Island on 20 October 2012. At the time of his arrival, DBD16 was considered to be an unauthorised maritime arrival;
(b)on 1 December 2015 DBD16 applied for the SHE Visa: CB 45-89. DBD16’s claims for protection as set out at CB 80-85, 104-106 and 121-130 were as follows:
(i)DBD16 had a poor relationship with his step-mother who would physically hurt him and prevent him from attending school because she wanted to prevent him from inheriting his father’s property;
(ii)DBD16 entered a relationship with a woman (“H”). H’s family were supporters of the Awami League and DBD16 and his family were supporters of the Bangladesh Nationalist Party (“BNP”). H’s family physically beat DBD16 and threatened him;
(iii)H’s family also began to harm her, and she committed suicide to escape the beatings and forced marriage to another man. H’s family attacked DBD16’s family after her death and DBD16 was told that the family had hired thugs and killers to search for him;
(iv)DBD16 was a known political activist and a supporter of the President of the BNP local branch for approximately 6 months. He would support his uncle (a Government Councillor) at the BNP by attending rallies and meetings;
(v)DBD16 intends to convert to Christianity;
(vi)DBD16 departed Bangladesh illegally and in defiance of the Emigration Ordinance 1982 (“Bangladesh) (“Emigration Ordinance”) and may be detained or imprisoned if he returns; and
(vii)DBD16’s information was inadvertently disclosed through a data breach by the Department in 2014;
(c)on 11 July 2016 a Delegate refused to grant DBD16 the SHE Visa: CB 132-163;
(d)on the assumption that DBD16 was a fast track review applicant, his SHE Visa application was referred to the Immigration Assessment Authority (“Authority”) on 14 July 2016: CB 166-169;
(e)on 19 September 2016 the Authority affirmed the Delegate’s Decision: CB 171-186 (“Authority Decision”);
(f)DBD16 sought judicial review of the Authority Decision in the Federal Circuit Court. On 11 July 2018 the Federal Circuit Court declared, among other things, that DBD16 was not an unauthorised maritime arrival: CB 187-188, see DBD16 v Minister for Immigration and Border Protection [2018] FCCA 1801; (2018) 334 FLR 431. The effect of this was that DBD16 had a right to seek merits review of the Delegate’s Decision in the Tribunal;
(g)on 17 July 2018 DBD16 applied to the Tribunal for review of the Delegate’s Decision: CB 194-195. DBD16 attended hearings before the Tribunal on 12 and 20 September 2019: CB 299-304 and 312-315;
(h)on 14 November 2019 the Tribunal affirmed the Delegate’s Decision: CB 320-353;
(i)DBD16 appealed the Tribunal’s Decision, unsuccessfully to the Federal Circuit Court: DBD16 v Minister For Immigration, Citizenship, Migrant Services And Multicultural Affairs [2020] FCCA 1249, but successfully on further appeal to the Federal Court: DBD16 v Minister For Immigration, Citizenship, Migrant Services And Multicultural Affairs [2021] FCA 30 (“DBD16 FCA 2021”), and the Tribunal Decision was quashed and remitted for reconsideration: CB 356-357. The Tribunal was held to have erred in the assessment of DBD16’s claimed conversion to Christianity;
(j)following the remittal DBD16’s migration agent provided a bundle of new country information to the Tribunal: CB 391-507;
(k)DBD16 attended a hearing before the Tribunal on 16 April 2021 with his migration agent: CB 510-512;
(l)DBD16’s migration agent provided further submissions to the Tribunal on 19 April 2021: CB 515-521; and
(m)on 30 June 2021 the Tribunal again affirmed the Delegate’s Decision not to grant DBD16 the SHE Visa: CB 525-539.
Tribunal Decision
In the Tribunal Decision the Tribunal:
(a)summarised the background to the application, noting that it had been remitted to the Tribunal by the Federal Court: CB 526 at [1]-[10];
(b)noted that DBD16’s migration agent had asked for an adjournment of the hearing, however, the Tribunal refused that request on the basis that DBD16’s SHE Visa application had been on foot since 2015, a vast amount of information had already been provided, and DBD16 could provide post-hearing submissions if he wished to do so: CB 526 at [11];
(c)correctly set out the relevant criteria and mandatory considerations for the SHE Visa: CB 527 at [13]-[18];
(d)noted that a certificate under s 438 of the Migration Act was on the Departmental file (“438 Certificate”), but the documents did not provide a sufficient basis for a claim of public interest immunity, and that the content of the documents had been put to DBD16: CB 528 at [19];
(e)summarised DBD16’s claims as follows:
(i)he had left Bangladesh illegally;
(ii)he was in a secret relationship with H whose family were strong supporters of the Awami League while DBD16 supported the BNP and was an activist;
(iii)he feared that members of H’s family would kill him;
(iv)his family face ongoing harassment as supporters of the BNP who played an active role within the BNP: CB 528-530 at [20]-[34]; and
(v)he was converting to Christianity and feared harm for this reason: CB 530 at [34]-[36];
(f)in light of DBD16’s admission that there was no case against him in Bangladesh and that he procured a document saying that there was a case because he thought it would assist the approval of his SHE Visa application, considered that this demonstrated a “flexible approach to the truth” and that DBD16 was “prepared to fabricate evidence” for the purposes of achieving a favourable outcome to his SHE Visa application: CB 531 at [42];
(g)described documents which DBD16 claimed falsely stated he was the subject of charges: CB 531 at [43], and noted that DBD16 had obtained these documents from his paternal uncle;
(h)clarified with DBD16 whether he had been charged with an offence: DBD16 stated that he had been charged after he left Bangladesh but that that case is now closed: CB 531 at [44];
(i)noted that DBD16 had not previously declared any previous criminal charges or criminal investigations but that it would have been reasonable for him to do so, and that the reason there was confusion concerning this issue was because DBD16 had “little or no idea” as to the content of the documents he had put forward: CB 532 at [45]-[46];
(j)concluded that there was no truth to DBD16’s claim that he was the subject of criminal conduct and that the documents that he provided were not genuine: CB 532 at [46];
(k)noted that:
(i)DBD16 appeared to be reneging on his claim of charges being laid against him as he had been advised that the Department may refuse the SHE Visa under s 36(1C) of the Migration Act: CB 532 at [47]; and
(ii)that an explanation by DBD16’s migration agent about what DBD16 said about the circumstances of a lawyer in Bangladesh and why DBD16 withdrew his reliance on the documents was not acceptable: CB 532 at [48];
(l)did not accept that DBD16 had any involvement in the BNP and made reference to DBD16 not claiming to be associated with any political group in his arrival interview, and found this further indicated that DBD16 had a flexible approach to the truth of his claims and that he was not a credible witness: CB 533 at [49];
(m)after putting this inconsistency to DBD16, found that DBD16 was willing to provide whatever answers he thought would provide him with a favourable outcome: CB 533 at [51];
(n)considered that DBD16 had fabricated his involvement with the BNP to add a “political tone” to the harm he claimed arose from his relationship with H: CB 533 at [52];
(o)found DBD16 to be evasive when an inconsistency in his evidence about when his relationship with H began was put to him by the Tribunal, and found this to mean that the evidence was fabricated: CB 534 at [53];
(p)noted further inconsistencies in DBD16’s evidence about H’s death: CB 534 at [54]- [56];
(q)found that the inconsistencies with respect to his relationship with H, together with the other credibility concerns, were such that it was not satisfied that DBD16 was in a relationship with H as claimed or that any harm arose therefrom: CB 534 at [57];
(r)noted that the claim that DBD16 feared harm from his step-mother poisoning him had been raised late and that his evidence was “absurd”, such that the claim was found to be fabricated: CB 534-535 at [58]-[62];
(s)noted that DBD16 claimed that he had converted to Christianity and that this was known by people in Bangladesh: CB 535 at [63], but refused a request from DBD16 to receive oral evidence from a Reverend as there was no dispute about DBD16’s baptism, participation in religious services, or the Reverend’s belief that DBD16 was a genuine convert to Christianity: CB 536 at [67]-[68];
(t)considered that the timing of DBD16’s conversion, together with its other credibility concerns, caused it to find that DBD16 was not a genuine convert to Christianity: CB 536 at [71], and considered that upon return to Bangladesh, DBD16 would resume his Muslim religious practice: CB 537 at [72];
(u)was not satisfied that DBD16’s family or any other individuals in Bangladesh were aware of DBD16’s practice of Christianity while in Australia, and that his evidence that he had been videotaped while practising his Christian religion in detention was vague, and found that DBD16 would not discuss his Christian religious practice if he returned to Bangladesh and he would, in fact, return with the same profile as when he departed: CB 537 at [73]-[74];
(v)in relation to the data breach claim, noted that DBD16 had claimed that he would not be able to get a Bangladeshi passport nor a visa to any other country as a result: CB 537 at [76]. The Tribunal referred to country information relating to those who depart Bangladesh illegally and found that there was no real chance or risk that DBD16 would suffer harm for this reason. DBD16 did not have a profile which would result in the Bangladeshi authorities having any interest in him on return to Bangladesh: CB 538 at [77]-[78];
(w)ultimately:
(i)was not satisfied that DBD16 or his family were involved with the BNP and found that DBD16 had fabricated this claim and was, therefore, not satisfied that DBD16 faced a real chance of serious harm on account of his claimed political opinion: CB 538 at [79];
(ii)did not accept that DBD16 had a relationship with H and that he experienced harm as a result of the relationship, and was similarly satisfied that this claim was fabricated and there was no real chance of harm for this reason: CB 538 at [80];
(iii)did not accept that DBD16 was a genuine convert to Christianity and found that DBD16 did not face a real chance of harm on the basis of this alleged conversion: CB 538 at [81];
(iv)was not satisfied that DBD16 had been harmed by his step-mother in the past and found that no real chance of harm arose for this reason: CB 539 at [82];
(v)did not accept that the data breach, or the circumstances of DBD16’s departure, gave rise to a real chance or real risk of significant harm: CB 539 at [83]; and
(vi)considered that DBD16 had no adverse risk profile that would be of any interest to any person in Bangladesh: CB 539 at [84]; and
(x)was not satisfied that DBD16 met s 36(2)(a) or (aa) of the Migration Act and thus affirmed the Delegate’s Decision to refuse the SHE Visa: CB 539 at [85]-[86].
Jurisdictional Error Required
This Court may set aside the Tribunal Decision upon judicial review if it is affected by jurisdictional error: Migration Act, ss 474 and 476; Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1. An instance where the Tribunal:
(a)identifies a wrong issue;
(b)asks the wrong question;
(c)ignores relevant material; or
(d)relies on irrelevant material
in such a way that the Tribunal’s exercise or purported exercise of power is thus affected resulting in a decision exceeding, or a failure to exercise, any authority or powers given to the Tribunal under the Migration Act, may constitute a jurisdictional error: Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ.
Legal unreasonableness may constitute jurisdictional error as explained by the High Court in Minister for Immigration & Citizenship v Li & Anor [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 138 ALD 181l (“Li”): see also Minister for Immigration & Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437; (2014) 308 ALR 280; (2014) 139 ALD 50 and Minister for Immigration & Border Protection v Pandey & Ors [2014] FCA 640; (2014) 143 ALD 640.
In certain circumstances a denial of procedural fairness may also constitute jurisdictional error: SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300 at [32]-[33] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ.
An instance where the Tribunal has made findings that are legally illogical or irrational may also amount to jurisdictional error: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248; (“SZMDS”) at [130]-[131] per Crennan and Bell JJ. In order to establish jurisdictional error, “extreme” illogicality must be demonstrated, “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions.”: Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99; (2013) 302 ALR 672; (2013) 136 ALD 41; FCR at [148] per Robertson J; SZMDS at [135] per Crennan and Bell JJ; CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496; (2016) 70 AAR 413 at [60] per McKerracher, Griffiths and Rangiah JJ.
To constitute jurisdictional error the error must be material in the requisite sense explained in MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 95 ALJR 441; (2021) 390 ALR 590 at [2] per Kiefel CJ, Gageler, Keane and Gleeson JJ as follows:
Materiality was explained in Minister for Immigration & Border Protection v SZMTA (2019) 264 CLR 421 to involve a realistic possibility that the decision in fact made could have been different had the breach of the condition not occurred. Existence or non-existence of a realistic possibility that the decision could have been different was explained to be a question of fact in respect of which the plaintiff in an application for judicial review of the decision on the ground of jurisdictional error bears the onus of proof.
The onus is upon DBD16 to establish jurisdictional error in the Tribunal Decision: VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [45] per Hill, Sundberg and Stone JJ; Maroun v Minister for Immigration & Citizenship [2009] FCA 1284; (2009) 112 ALD 424.
It is not within the jurisdiction of this Court to review the merits of the Tribunal Decision, or determine DBD16’s claim for protection: Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1; CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.
As the Federal Court observed in MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392; (2015) 238 FCR 158 (“MZAIB”) at [100] and [112] per Mortimer J (and see also Ludgero v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1060; (2021) 358 FLR 215 at [26] per Judge Lucev) in circumstances where a party is self-represented the Court must endeavour to remain alert to the possibility of jurisdictional error being made by the Tribunal.
Failure to particularise
The six grounds in the Judicial Review Application are unparticularised, and because no written, and effectively no oral, submissions were made on behalf of DBD16, the six grounds remain unparticularised.
The failure to particularise a ground of review can be a sufficient basis for a ground of review to be dismissed: NWWJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 176 at [37] per Perram, Derrington and Stewart JJ; WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 (“WZAVW”) at [35] per Gilmour J (and cases there cited); DKN20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1158 (“DKN20”) at [60] per Perry J citing WZAVW.
Even where there is an unparticularised ground of review it is necessary for self-represented applicants to be afforded an opportunity by the Court to explain orally the matters that are said to give rise to a review ground: DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [9] per Colvin J, and then to have regard to any oral submissions so made: DKN20 at [60] per Perry J; FHX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 202 at [17] and [20] per Judge Ladhams. The Court heard oral submissions from DBD16 but those submissions did not address, identify or particularise any jurisdictional error in the Tribunal Decision.
The failure to particularise the written grounds provides no basis for a finding of jurisdictional error in relation to any of the six grounds in the Judicial Review Application.
Ground 1
Ground 1 of the Judicial Review Application is as follows (reproduced unaltered):
1. The AAT made serious error at this case.
Consideration – ground 1
The Tribunal declined to adjourn the Tribunal Hearing as requested by a new migration agent appointed by DBD16 a week before the Tribunal Hearing, so as to allow the new migration agent further time to provide written submissions and prepare: CB 526 at [11]. This was not unreasonable in the sense identified in Li because:
(a)the migration agent had sufficient time (7 days) to prepare for the Tribunal Hearing;
(b)the matter was remitted from the Federal Court to the Tribunal on 21 January 2021 and DBD16 had at least 8 weeks to find and appoint a migration agent if he wished. That he chose to do so one week prior to the Tribunal Hearing does not necessarily warrant an adjournment;
(c)DBD16 had already provided significant materials to the Tribunal and the new migration agent had not indicated that additional evidence or statements were required such that additional time to prepare may have been required;
(d)DBD16’s migration agent had the opportunity to make post-hearing submissions and did so; and
(e)DBD16 is in immigration detention and has been for some time, a fact which reinforced the need for a quick review by the Tribunal,
and, in the above circumstances, the Tribunal’s refusal of the adjournment request was reasonable, rational and logical, and is a decision which was open to the Tribunal, and was not one which no other differently constituted Tribunal would not have made: SZMDS at [130]-[131] per Crennan and Bell JJ. It was, therefore, within the Tribunal’s area of decisional freedom to refuse the adjournment: Li at [28] per French CJ.
The Tribunal refused a request by DBD16 to receive evidence from a Reverend. The Tribunal did so because it had already received and considered material from the Reverend, and the Tribunal was in no doubt that the Reverend would give evidence that DBD16 was a genuine Christian convert: CB 536 at [68]. The basis for the Tribunal refusing to take the evidence of the Reverend was that it was prepared to accept the oral evidence she would give, and that the evidence would not assist the Tribunal in determining the genuineness of DBD16’s claimed conversion in light of the Tribunal’s credibility concerns about DBD16’s evidence: CB 536 at [67]-[68].
In BOX16 v Minister for Immigration & Border Protection [2020] FCA 801 (“BOX16”), the Federal Court said that it was open for the Tribunal not to call a witness where, to the extent that the witness corroborated claims made by an applicant that were not accepted by the Tribunal, it would not overcome the Tribunal’s concerns that the appellant was not a credible witness and had fabricated his claims: BOX16 at [76] per Wigney J. Special leave to appeal in BOX16 was refused: BOX16 v Minister for Immigration and Border Protection [2021] HCASL 26. The Federal Court expressed similar views in SZUIJ v Minister for Immigration and Border Protection [2016] FCA 1574 at [79] per Wigney J, as follows:
The appellant’s submissions also tended to suggest that there was some obligation on the part of the Tribunal to further explore the contents of the witness statements by taking oral evidence from the witnesses. That is not correct. The Tribunal was entitled to approach the appellant’s request for oral evidence to be taken on the basis that their evidence would be what was stated in the s 426(2) notice and what was in their witness statements. The Tribunal was not obliged to speculate that further or different evidence could be obtained from the witnesses if the evidence in the written statements was further explored in the course of oral evidence. The beliefs or opinions of the two witnesses were not matters about which the Tribunal was obliged to conduct further inquiries: cf. Minister for Immigration and Citizenship v SZIAI (2009) 111 ALD 15.
In this case, the Tribunal gave cogent reasons for not calling the Reverend, finding that from evidence given to the Tribunal on an earlier occasion that it knew what evidence the Reverend would give, and that DBD16 had fabricated his claims entirely, and that the evidence the Reverend would provide could not “save” DBD16’s claimed conversion to Christianity: see [5(s) and [20]] above. In those circumstances, there was no obligation to take the Reverend’s evidence: Minister for Immigration and Multicultural and Indigenous Affairs v Maltsin [2005] FCAFC 118; (2005) 88 ALD 304 at [37] per Kenny and Lander JJ; Minister for Immigration and Multicultural and Indigenous Affairs v Katisat [2005] FCA 1908 at [63] per Bennett J; BOL15 v Minister for Immigration and Border Protection & Anor [2016] FCCA 1994; (2016) 312 FLR 408 at [14]-[16] per Judge Lucev.
It follows from [19]-[22] above that ground 1 is not made out and does not identify jurisdictional error in the Tribunal Decision.
Ground 2
Ground 2 of the Judicial Review Application is as follows (reproduced unaltered):
2. The AAT identified a wrong issue.
Consideration – ground 2
The Tribunal correctly identified that the issue before the Tribunal was whether DBD16 met the criterion to be granted the SHE Visa when it identified the criterion and mandatory considerations to be applied and appropriately summarised them: CB 527 at [13]-[18]. The Tribunal then assessed the evidence and information before it against those criteria and mandatory considerations. The Tribunal’s identification and approach to the issues before it was entirely orthodox.
To the extent that DBD16 may be suggesting that the Tribunal fell into the same error as the previous Tribunal, that being that the Tribunal asked itself the wrong question: DBD16 FCA 2021 at [27] per McKerracher J, the Tribunal has not done so because the Tribunal addressed DBD16’s chance of harm arising from both a real or imputed renunciation of Islam: CB 535-537 at [63]-[74]. In relation to the former, the Tribunal found that there was no real renunciation and that DBD16’s conversion was not genuine: CB 537 at [72]. In relation to the latter, the Tribunal rejected DBD16’s claim that his conversion was known in Bangladesh and found that DBD16 would not disclose his apparent conversion on return from Bangladesh: CB 537 at [73]. The Tribunal properly addressed the correct question in the current review and did not identify a wrong issue.
It follows from [25]-[26] above that ground 2 is not made out and does not identify jurisdictional error in the Tribunal Decision.
Ground 3
Ground 3 of the Judicial Review Application is as follows (reproduced unaltered):
3. I need to my case reviewer by the Federal Circuit Court.
Consideration – ground 3
Ground 3 is not a proper ground of review, but rather, is merely a request for the matter to be heard and determined by the Federal Circuit and Family Court of Australia (Division 2). Ground 3 does not, therefore, establish jurisdictional error in the Tribunal Decision.
Ground 4
Ground 4 of the Judicial Review Application is as follows (reproduced unaltered):
4. The AAT applied an incorrect interpretation of the law.
Consideration – ground 4
The Tribunal’s identification of the legal principles in the Tribunal Decision was entirely orthodox: see [5(c)] above. Similarly, the Tribunal’s application of those principles was entirely orthodox and without error. The Tribunal used the language of the Migration Act otherwise disclosed an appreciation of the real chance and real risk tests: for example, the Tribunal considered the risk from the data breach as “remote”: CB 538 at [78]. Critically, however, the Tribunal was not required to assess the chance or risk of harm in relation to most of DBD16’s claims as DBD16 had been disbelieved. The basis upon which DBD16 was found not to face a real chance or risk of harm was because the factual premise of DBD16’s claims was entirely rejected. The application of s 36(2)(a) and (aa) of the Migration Act (and the associated provisions) was, therefore, entirely straightforward because DBD16 was not believed.
It follows from [31] above that ground 4 is not made out and does not identify jurisdictional error in the Tribunal Decision.
Ground 5
Ground 5 of the Judicial Review Application is as follows (reproduced unaltered):
5. The AAT disregarded relevant materiel.
Consideration – ground 5
This ground is difficult to address in the absence of particulars or the identification of material allegedly disregarded. In circumstances where the Tribunal:
(a)identified each of DBD16’s claims and DBD16 confirmed them as his claims for protection: CB 530 at [37];
(b)referred to the “significant amount of statements and submissions to date” and set out in detail the documentary and oral evidence provided over the entire course of the SHE Visa application, and not just the evidence provided following the most recent remittal: CB 528-531 at [19]-[39]; and
(c)clearly engaged with the statements, submissions and materials before it, including identifying a number of inconsistencies in the evidence and submissions made by DBD16;
there is no basis to conclude that the Tribunal disregarded relevant material.
It follows from [34] above that ground 5 is not made out and does not identify jurisdictional error in the Tribunal Decision.
Ground 6
Ground 6 of the Judicial Review Application is as follows (reproduced unaltered):
6. I been in immigration detention centrer more then 9 years. I been depress.
Consideration – ground 6
Ground 6, taken at its highest: MZAIB at [100] and [112] per Mortimer J, might be said to be an allegation that DBD16’s detention and depression deprived him of a real and meaningful opportunity to participate in the Tribunal Hearing, or that the Tribunal Hearing ought to have been adjourned. Such a contention cannot, however, be made out, because:
(a)there is no evidence (save for DBD16’s self-analysis) as to DBD16’s depression or his capacity at the time of the Tribunal Hearing and, in particular, no proper medical evidence: as to the necessity for proper medical evidence to support an adjournment sought on medical grounds, see, for example, AAL17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 815 at [19] per Lee J; Zangmo v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 25 at [83]-[89] per Judge Lucev (and the Federal Court authorities there cited);
(b)DBD16 attended the Tribunal Hearing with his migration agent. At no time were concerns raised about DBD16’s capacity to fully engage with, and answer matters that were put to him by, the Tribunal: CB 530 at [37], 531-532 at [44], 533 at [50]-[51], 534 at [55], 535 at [59]-[60], 535-536 at [63]-[66]; 536 at [69] and 537-538 at [76]-[77]; and
(c)there is no evidence that when inconsistencies were put to DBD16 by the Tribunal, DBD16 or his migration agent argued, or even suggested, depression or time spent in immigration detention was a reason for the inconsistencies.
The Court cannot, in the circumstances and given the lack of evidence, be satisfied that depression or time spent in immigration detention had any adverse impact on DBD16 receiving a real and meaningful opportunity to participate in the Tribunal Hearing. Otherwise, ground 6 is not a ground of review, but rather, a submission as to DBD16’s factual situation and mental state. As such it raises no issue as to jurisdictional error in the Tribunal Decision.
For the reasons set out at [37]-[38] above, ground 6 does not establish jurisdictional error in the Tribunal Decision.
Country Information
As a model litigant, the Minister raised an additional issue arising from the Tribunal Decision. At CB 538 at [77] the Tribunal states that:
The Tribunal put to the applicant that it had no information that Bangladesh prosecutes people who left Bangladesh without a passport. Although the Tribunal concedes that the recent DFAT report notes that there is the Emigration Ordinance Act (1982) which makes it an offence to depart Bangladesh other than in accordance with the procedures laid down in the Act, that report does not disclose that anyone has been prosecuted for breach of that law. Further, the same report notes DFAT’s assessment that there is no evidence to suggest that recent returnees have received adverse attention from authorities or others. The report further notes that Bangladesh has a very large diaspora, and tens of thousands of Bangladeshis exit and enter the country each year. DFAT assesses it is unlikely that authorities have the capacity to check or monitor each of these people, and that the vast majority of returning Bangladeshis will re-enter the country without incident, although people with a political profile may be noted. DFAT assesses that most returnees, including failed asylum seeks [sic], are unlikely to face adverse attention regardless of whether they have returned voluntarily or involuntarily.
It can be accepted that at the time of the Tribunal Decision the Emigration Ordinance had been repealed by the Overseas Employment and Migration Act 2013 (Bangladesh) (“OE & M Act”).
It is not an error for the Tribunal to rely upon country information that is wrong. In NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 (“NAHI”) at [11] per Gray, Tamberlin and Lander JJ, the Full Court of the Federal Court stated:
…It is not, as the first appellant submitted, an error of law, or a jurisdictional error, for the Tribunal to base a decision on “country information” that is not true. The question of the accuracy of the “country information” is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of “country information”, it would be engaging in merits review. The Court does not have power to do that.’
The Federal Court has recently confirmed that this passage from NAHI “remains good law” (albeit that it remains subject to the principles of legal unreasonableness): EGW17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1177 at [39] per Farrell J. Unreasonableness is to be assessed “at the time the power is exercised or should have been exercised”: Minister for Home Affairs v DUA16 [2020] HCA 46; (2020) 95 ALJR 54; (2020) 385 ALR 212 at [26] per Kiefel CJ, Bell, Keane, Gordon and Edelman JJ.
In this case, it was not legally unreasonable for the Tribunal to rely upon the DFAT report referred to at CB 538 at [77] because:
(a)DBD16 himself relied upon the Emigration Ordinance when claiming to face the possibility of detention upon return to Bangladesh: CB 126;
(b)DBD16 provided the Tribunal with the DFAT report: CB 391 and 455, and placed considerable weight on its contents: CB 520;
(c)there was no conflicting information before the Tribunal referring to the OE & M Act;
(d)the DFAT report relied upon was current and is an authoritative source; and
(e)the Tribunal had no actual or constructive knowledge that the reference to the Emigration Ordinance in the DFAT report was wrong.
In the circumstances, the Tribunal did not err in placing weight upon the contents of the DFAT report. It was not under a wide-ranging duty to investigate for itself the correctness of the propositions asserted in the DFAT report: such a duty would be untenable: Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123; (2009) 259 ALR 429; (2009) 111 ALD 15. In any event, any error (if made) was immaterial. In AVJ17 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2022] FedCFamC2G 24 (“AVJ17”), Judge Riley considered a relevantly identical argument: namely, whether the Tribunal fell into jurisdictional error by relying on the factual inaccuracy of the DFAT report concerning the Emigration Ordinance and the OE & M Act. In AVJ17 the Court held that the error was immaterial, noting that even if the claim had arisen in that case (which it had not), the DFAT report noted, and the Tribunal accepted, that returnees to Bangladesh were not subject to adverse attention, subject to limited exceptions. This was said to be a finding that “survives the realisation that the Emigration Ordinance … has been repealed”: AVJ17 at [67] per Judge Riley. That conclusion is directly applicable to this case.
In this case, the Tribunal rejected the entire factual basis upon which DBD16 claimed to be at risk of harm in Bangladesh. As a consequence, the Tribunal did “not accept that DBD16 has any profile which would result in the authorities in Bangladesh having any interest in prosecuting DBD16 for his illegal departure”: CB 538 at [78]. Setting to one side the incorrect information in the DFAT report, the balance of the DFAT report otherwise indicated that there was no evidence to suggest that recent returnees had received adverse attention from authorities and that it is unlikely that those entering Bangladesh will be noted unless they have a high profile: CB 503 at [5.29] and 504 at [5.30]. The Tribunal accepted this information: CB 538 at [77]. That information has not been shown to be incorrect and it independently supported the conclusion reached by the Tribunal. The reference to the Emigration Ordinance was therefore superfluous and immaterial to the outcome reached by the Tribunal.
It follows from [40]-[46] above that the Tribunal Decision is not affected by jurisdictional error in relation to the country information issue raised by the Minister.
CONCLUSION AND ORDERS
For the reasons set out at [6]-[47] above, the Court has concluded that the Tribunal Decision is not affected by jurisdictional error. It follows that the Judicial Review Application must be dismissed. There will be an order accordingly.
The Court will hear the parties as to costs.
I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 18 March 2022
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