Dle16 v Minister for Immigration

[2018] FCCA 1392

FEDERAL CIRCUIT COURT OF AUSTRALIA

DLE16 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1392

Catchwords:
MIGRATION – Review of decision by Administrative Appeals Tribunal – whether Administrative Appeals Tribunal’s decision affected by jurisdictional error – whether the Administrative Appeals Tribunal’s findings were open to it – whether the Administrative Appeals Tribunal had regard to all relevant material – whether the Administrative Appeals Tribunal approached its task with bias – no jurisdictional error – application dismissed.

Legislation:
Migration Act 1958 (Cth), ss.36, 45AA, 91R, 424AA, 438, 474

Cases cited:
NAFF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259
Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29
ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668
Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507
Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425
NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264

Applicant: DLE16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3162 of 2016

Judgment of: Judge Emmett

Hearing date: 29 May 2018

Date of Last Submission: 29 May 2018

Delivered at: Sydney

Delivered on: 29 May 2018

REPRESENTATION

The Applicant appeared in person, with the assistance of an interpreter in the Bengali language

Solicitors for the Respondents: Ms Jennifer Strugnell
(Minter Ellison)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3162 of 2016

DLE16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This is an for judicial review of a decision of the Administrative Appeals Tribunal (“the Tribunal”) dated 31 October 2016, dismissing an application for review by the Tribunal of a decision of a delegate of the first respondent (“the Delegate”) made 29 April refusing the applicant a Temporary Protection (Class XD) visa.

2. The applicant is a citizen of Bangladesh and of Muslim faith, who fears harm from the Awami League (“AL”) in Bangladesh on account of his involvement with and support of the Bangladesh Nationalist Party (“BNP”).

3. The factual background the applicant’s claims and the Tribunal decision are accurately set out in the written submissions of the first respondent, as follows:

   “B     FACTUAL BACKGROUND

   4. The applicant is a citizen of Bangladesh, who arrived in Australia as an irregular maritime arrival on 6 May 2013. The applicant applied for a Protection (Class XA) visa on 2 September 2013 (court book (CB) 20–45). However, by operation of section 45AA of the Act and regulation 2.08F of the Migration Regulations 1994 (Cth) (the Regulations), his application was taken to be, and to have always been, an application for a TPV.

   5. On 29 April 2015, a delegate of the Minister for Immigration and Border Protection (the delegate) refused to grant the applicant a TPV (CB 100–114).

   6. The applicant sought review of the delegate's decision before the Tribunal by application dated 11 May 2015 (CB 116–122).

   7. The applicant appeared at a hearing before the Tribunal on 7 October 2016 (CB 149–151).

   8. The Tribunal made its decision on 31 October 2016, affirming the decision not to grant the applicant a TPV (CB 397–416).

   C  APPLICANT’S CLAIMS

   9. The applicant claimed to fear harm in Bangladesh by members or supporters of the Awami League (AL) for reason of his membership of and support for the Bangladesh Nationalist Party (BNP). In support of this claim, the applicant recounted the following events (CB 70–72):

   (a) he was from Kulia village, Panisara union, Jessore district and resided there until March 2012;

   (b) he joined the BNP between two and a half and eight years ago (having previously voted for them in 1991 and 1996) and he held the 'number 5' position in the BNP in his village;

   (c) he was the 'organising secretary' and he organised the meetings;

   (d) there was a bomb attack at one of the meetings;

   (e) in 2011 or 2012 he was hit over the head with a hockey stick and his wrist broken when he was attacked by AL supporters and he has a poor memory as a result;

   (f) after the attack he fled to Dhaka, where he owned a grocery store for 12 months before leaving Bangladesh;

   (g) while in Dhaka, someone 'ran behind him' and he suspected it was an AL supporter;

   (h) AL supporters would find him in Dhaka because they have telephones; and

   (i) the applicant has attended four to seven BNP meetings since arriving in Australia.

   D  TRIBUNAL DECISION

   10. The Tribunal rejected the applicant's claims on the basis of comprehensive adverse credibility findings. The Tribunal made the following key findings:

   (a) it was not satisfied the applicant had any injuries or medical conditions which caused memory loss or explained the deficiencies in his evidence, especially given he had not provided any medical evidence despite being allowed time to do so (CB 410–411: [65]–[66], [71]);

   (b) it did not accept the applicant voted in 1991 aged 8 or 1996 aged 13, because his evidence in this respect was implausible (CB 410–411: [68], [70]);

   (c) it found the applicant's evidence about when he first became involved in the BNP was vague and shifted over time (CB 411: [70]);

   (d) it found the applicant's evidence about the problems he encountered as a BNP supporter was vague and unpersuasive with respect to whether his wrist was broken or whether there had been a bomb at a meeting (CB 411: [71]);

   (e) it found the applicant's evidence about his involvement in the BNP lacked detail and had shifted over time such that his evidence that he was of adverse interest to AL supporters in his home area was not credible (CB 412: [72]–[73]);

   (f) it found the applicant's evidence about why and how he joined the BNP was inconsistent and unpersuasive (CB 412–413: [74]);

   (g) it found the applicant's claims were fabricated to obtain a protection visa and the poor quality of his evidence was not due to memory issues, but was due to 'struggling to describe experiences that he never actually had' (CB 413: [75]);

   (h) having regard to its cumulative concerns about the applicant's credibility, the Tribunal found the applicant was not a credible witness and rejected the entirely of his claims about his past experiences in Bangladesh (CB 413–414: [76]–[77]);

   (i) while the Tribunal was prepared to accept the applicant may have attended BNP meetings in Australia, it considered he did so for 'the sole purpose of strengthening his protection visa claim' and disregarded his conduct under section 91R3 of the Act (CB 414–415: [79]–[80]); and

   (j) it accepted that the applicant would return to Bangladesh as a failed asylum seeker, but having regard to subsection 91R(3) of the Act, and on the basis of country information, it did not accept that the applicant would face harm because of his profile as a failed asylum seeker or because of his limited involvement with the BNP in Australia (CB 415–416: [81], [82]).

   11. For these reasons, and having considered the applicant's claims individually and cumulatively, the Tribunal was not satisfied that there was a real chance the applicant met the refugee criterion (CB 415–416: [82], [84]). For the same reasons, the Tribunal was not satisfied the applicant met the complementary protection criterion (CB 415–416: [83], [85]).”

   (Emphasis in original)

The proceeding before this Court

1. The applicant was unrepresented before this Court, although had the assistance of a Bengali interpreter. 

2. On 23 March 2017, the applicant attended a directions hearing before a registrar of this Court. On that occasion, the applicant was given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, including any transcript of the Tribunal hearing, as well as submissions in support.

3. At the commencement of today’s hearing, the applicant confirmed that he has not filed any amended application, evidence or submissions in support of his application and that he has no further documents to present to the Court this morning in support of his application.

4. At the outset of the hearing, I explained to the applicant that the role of this Court is very different to that of the Tribunal, and that it is not for this Court to reconsider his claims and reach different findings or conclusions. I also explained to the applicant that the only issue before this Court is whether or not the decision of the Tribunal was made according to law. I explained to the applicant that this Court has no power to interfere with the decision of the Tribunal, unless the Court is satisfied that the decision of the Tribunal is affected by a mistake going to its jurisdiction. I further explained to the applicant that disagreement with the findings and conclusions of the Tribunal rarely, by itself, establishes such a mistake.

5. The applicant confirmed that he relied on the grounds contained in the application filed on 16 November 2016. The application was difficult to follow in terms of the actual grounds. I have understood that paragraphs 1-4 of the grounds of the application are in fact Ground 1. I have understood that paragraph 5 of the application is Ground 2. I have understood that paragraph 6-8 of the application are Ground 3. I have understood that paragraph 9 of the application is Grounds 4. I have understood that paragraph 10 of the application is Ground 5. I have understood that paragraph 11 of the application is Ground 6. The Grounds are as follows:

   “1. The Administrative Appeal Tribunal made a jurisdictional error when it failed to take account relevant considerations and took into account irrelevant considerations.

   2. Particulars:

   3. The AAT adopted hard attitude in assessing or examining the relevant facts presented at the time of hearing. The AAT made a jurisdictional error when it adopted critical attitude at the time of hearing.

   4. Particulars: Subparagraph of 65 (1) (a) (ii) of the Migration Act 1958 requires the decision maker in respect of the applicant's primary application for a protection visa to make determination as to whether criteria for the grant of the visa prescribed by the Act or the Regulations made there under were satisfied. The Tribunal failed to assess the relevant material presented on logically probative and relevant materials.

   5. Tribunal did not follow procedure of hearing in Judicial manner using relevant substance (oral and written evidence in support of claim for protection visa).

   The Tribunal failed to hold that Department of Immigration accorded the applicant mere surface formalities (Departmental Interview) and left the decision maker free to make a completely arbitrary decision to refuse the application.

   The applicant claims he was denied natural justice when the Respondent comp formalistic right to hearing (Departmental Interview at Detention Centre) but the procedure or conduct and substance (or mental processes) were not followed or implemented .It is believed that in the absence proper procedures, a decisionmaker's perceptions of the merits of a case may prevent the substance from ever being properly ascertained.

   Particulars:

   Earlier, at the Departmental interview, concerns were made about applicant's identity. The Tribunal put the relevant particulars of the assessment to the applicant at the hearing in accordance with the procedure set out in s 424 AA of the Migration Act.

   But as it is claimed by the Tribunal that it did not place any adverse weight on this information (applicant's two unverified identity documents, a birth certificate and Citizenship Certificate) in assessing the applicant's claim.

   The applicant claims that the AAT was pre-occupied with the adverse information about the applicant's claim and strated hearing that environment which was not free and fair. The applicant was dnied natural justice.. The AAT raised unnecessary doubt over the genuineness of asserted fear claimed by the applicant. The Tribunal discarded all of the relevant documents forwaded by the applicant in support of the claim.

   ..

   The Tribunal designed questions to confuse the applicant at the time of hearing.. The Tribunal made decision and asked irrelevant questions to confuse and discredit the applicant’s oral and written evidence.

   6. The Applicant claims that AAT's finding of reasons are confused and test for persecution is not applied according to the rules of the Act and according to Complementary Protection Provisions under s.36(2) (aa) of the Act.

   7. Particulars: The applicant fears of Persecution is based on his support to BNP and his active involvement in the party's political activities. He became known to the local Awami League supporters because of his political activities during election time.

   8. The applicant claims that the Tribunal undermined the threat from the danger from the Awami League Party supporters. He was hit by the hockey stick on the way of to a BNP meeting. The Awami League supporters attacked him and hit him. His wrist was broken. The Awami League supporters many times came to his home and threatened him.. He was tortured and harassed many times and because of these reasons he left the village.

   9. The applicant claims that the Tribunal did not understand the reality of Bangladesh party politics. The Tribunal made preoccupied myth that only High Profile activists became victims of attacks by the Awami League supporters.

   10. Applicant claims if he wll go back to his country the AL supporters will kill him. The applicant is involved in the BNP supported activities in Australia. The AL supporters inform the Authority in Bangladesh when I am going back. They hey can trace anywhere in Bangladesh and inform their people to locate the applicant and kill him. The applicant fears that the present Government will harm to the applicant as Returned Assylum Seekers. The Tribunal failed to understand the current political environment. Tribunal ignored the genuiness of relocation in the Bangladesh.

   11. The applicant claims that the Tribunal unduly adopted harsh approach in assessing the fear of harm. The Tribunal did not follow the Rules of real risk Test of Persecution and harm. The AAT failed to account all the circumstances of fear and harms in which the applicant lived in Bangladesh. The AAT failed to give real reasons for not applying Complementary Protection Cretaria Under Paragraph 36 (2) (aa).”

   (Errors in original)

6. Each of the grounds was interpreted for the applicant and the applicant was invited to make submissions in support of each of the grounds and in support of the application generally.

7. The applicant confirmed that he wished to continue with the application for judicial review.

Ground 1, being paragraphs 1, 2, 3 and 4

1. Ground 1 asserts that the Tribunal failed to take into account relevant considerations and took into account irrelevant considerations. I asked the applicant what were the relevant considerations that the Tribunal failed to take into account and what were the irrelevant that the Tribunal took into account. The applicant gave the same answer that the Tribunal did not believe him and that there were a lot of problems in his country.

2. There was no transcript of the Tribunal hearing provided to this Court, nor did the applicant provide any evidence to this Court to suggest that the Tribunal’s decision record is not accurate. At the directions hearing on 23 March 2017, the applicant was given an opportunity to file a transcript of the Tribunal hearing. The applicant was also directed to give notice if he wished to rely on recordings of the hearing. However, no step was taken by the applicant to rely on any such evidence. In the circumstances, the Court accepts as accurate the Tribunal’s summary of the oral evidence given by the applicant and exchanges it had with the applicant at the Tribunal hearing. The Court is entitled to accept the Tribunal’s decision record as accurately reflecting the matters to which it refers as taking place at the hearing in the absence of any evidence to the contrary (NAFF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1).

3. The applicant also said in support of Ground 1 that the Tribunal had said he was lying before he finished the answer. However, there is nothing on the face of the Tribunal’s decision record to suggest that the Tribunal told the applicant he was lying before he had finished an answer.

4. It is well established that the Tribunal is not required to accept uncritically any and all claims made by an applicant (see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 per Beaumont J; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596 per Kirby J; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70 per Wilcox J). Nor does the Tribunal have to possess rebutting evidence before holding that a particular assertion was not made out (see Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J).

5. Ground 1 also asserts that the Tribunal adopted a critical attitude at the time of the hearing. I asked the applicant what he meant by that assertion and he did not reply. Without further particularisation, this is a bare assertion that does not identify any error capable of review by this Court.

6. Ground 1 also asserts that the Tribunal failed to assess the relevant material presented on logically probative and relevant materials. Without further particulars, I understand that complaint to be more in the nature of a disagreement with the findings and conclusions of the Tribunal. Such a complaint invites merits review which this Court cannot undertake. (see Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 53-54 per Gleeson CJ and McHugh J; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ). The following was stated in Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 at [20] per North, Lander and Katzmann JJ:

   “It was not for the Federal Magistrate’s Court, nor for this Court, to review the merits of the RRT’s decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611. A wrong finding of fact is not an error of law: Waterford v The Commonwealth (1987) 163 CLR 54 at 77. Unsound reasoning is not an error of law: Reg v The District Court; Ex parte White (1966) 116 CLR 644 at 654; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356.”

7. Accordingly Ground 1 does not demonstrate any jurisdictional error.

Ground 2, being paragraph 5

1. Ground 2 essentially asserts that the applicant was denied natural justice.

2. I asked the applicant in what way he was denied natural justice. The applicant replied that the Tribunal did not believe him. There is nothing on the face of the material before the Court contained in the Court Book filed on 14 February 2017 and marked Exhibit 1R that suggests that the Tribunal’s review was conducted other than in accordance with the statutory scheme. Without otherwise, the bare unparticularised assertion, unsupported by oral or written submissions, does not disclose an error capable of review by this Court.

1. Ground 2 also asserts that the Tribunal discarded all the relevant documents forwarded by the applicant in support of his claim. I asked the applicant what were the documents that he asserted were discarded by the Tribunal. The applicant again said that the Tribunal had not believed him. To the extent that such a complaint again appears to be more a disagreement with the findings and conclusions of the Tribunal, such a complaint invites merits review, which as stated above, the Court cannot undertake.

2. Ground 2 also asserts that the Tribunal designed questions to confuse the applicant. I asked the applicant what those questions might be. The applicant again responded that the Tribunal did not believe him.

3. The Tribunal’s decision record makes clear that none of the applicant’s complaints in Ground 2 are made out. The Tribunal identified the claims made by the applicant. The Tribunal referred to various country information provided by the applicants representative. The Tribunal then summarised in detail the various exchanges it had with the applicant about his claims. The Tribunal noted matters of concern it put to the applicant about his evidence and noted the applicant’s responses.

4. The Tribunal took a break during the hearing to let the applicant speak with his representative. The Tribunal also gave the applicant information in accordance with s.424AA of the Migration Act 1958 (Cth) (“the Act”) and gave the applicant time to respond in writing to that information. The Tribunal noted that the applicant said his brain was not working and that he did not know what he was telling the Tribunal. The applicant’s representative then made oral submissions and the Tribunal noted that the representative also said that he did not think the applicant’s brain was working. The Tribunal noted that while the applicant claimed to have medical issues, no medical evidence had been provided to the Tribunal. However, the Tribunal told the applicant it would consider any further evidence provided in post-hearing submissions. The Tribunal noted that no submissions were received from the applicant.

5. The Tribunal also identified with particularity country information to which it had regard. It is well settled that the country information to which the Tribunal has regard and the weight it gives that information is a matter for the Tribunal (see NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10, and VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29).

6. The Tribunal accepted that the applicant was a man of limited education and he may have felt nervous appearing before the Tribunal. However the Tribunal was satisfied that the applicant had the capacity to participate in the hearing and he had a meaningful opportunity to do so.

7. Ultimately the Tribunal comprehensively rejected the applicant’s claims based on adverse credibility findings. The Tribunal found the applicant’s claims about past experience in Bangladesh to have been fabricated in the hope of obtaining a protection visa. In reaching that conclusion the Tribunal considered whether there was any explanation for the applicant’s vague, confused and inconsistent evidence and concluded that there was not.

8. The Tribunal also had regard to the applicant’s claims to have attended BNP meetings in Australia and to be at further risk if returned to Bangladesh for that reason. The Tribunal was not satisfied that the applicant attended BNP meetings in Australia otherwise than for the sole purpose of strengthening his claims to be a refugee. Accordingly, the Tribunal disregarded that conduct pursuant to s.91R(3) of the Act in considering whether the applicant met the refugee criterion in s.36(2A) of the Act.

9. The Tribunal noted that s.91R(3) did not apply to the complementary protection criterion. However, because the Tribunal did not accept that the applicant is now, or ever was, a genuine supporter of the BNP and did not have any genuine interest in the BNP, the applicant would not be politically active in support of the BNP if returned to Bangladesh. Accordingly, the Tribunal did not accept that there is a real chance that the applicant would face harm of any type if returned to Bangladesh on the basis of his actual or imputed political opinion and therefore he did not meet the complementary protection criterion in s.36(2)(aa) of the Act.

10. The Tribunal also considered if the applicant would face harm in Bangladesh as a failed asylum seeker and concluded that he would not based on the findings it had made.

11. The Tribunal’s findings were open to it on the evidence and materials before it and for the reasons it gave, including its adverse credibility findings. Those findings were not tainted by any failure to afford procedural fairness, reaching a finding without a logical or probative bases or unreasonableness (see ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 at [83] per Griffiths, Perry, Bromwich JJ). A credit finding is sound if it was “open to [the Tribunal] on the material, was based on rational grounds and was arrived at on consideration of matters that were logically probative of the issue of credibility.” (see Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547).

12. Ground 2 also referred to the Tribunal’s concerns about the applicant’s identity. The information was contained in documents the subject of a s.438 certificate. However, the Tribunal found the s.438 certificate to be invalid and gave the information to the applicant for comment in accordance with s.424AA of the Act. The information was essentially an identity assessment undertaken by the Department and referred to documents which appeared to have been fraudulently obtained in support of the applicant’s identity. However, because the Tribunal was prepared to accept the applicant’s identity as claimed, it did not place any adverse weight on the information in assessing the applicant’s claims.

13. If it be that the applicant’s claims in Ground 2 are intended to suggest any bias on the part of the Tribunal, a claim of bias is serious and requires evidence, such as a transcript of the Tribunal hearing. Further, it is a rare and exceptional case where bias can be demonstrated solely from the published reasons of a decision. Similarly, the mere fact that the Tribunal makes adverse findings in respect of the applicant does not give rise to an inference of bias or, by itself, suggest that the decision-maker approached its task other than with a mind open to persuasion (see SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38] per von Doussa J).

14. A fair reading of the Tribunal’s decision does not disclose any prejudgment on the part of the Tribunal in the sense that the Tribunal was “so committed to a conclusion already formed as to be incapable of alteration, or of being persuaded differently, whatever evidence or argument may be presented.” (see Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507 at [69], [71]-[72], [127] per Gleeson CJ and Gummow J).

15. A fair reading of the Tribunal’s decision does not suggest that the Tribunal approached its task other than with a mind open to persuasion. There is no evidence upon which a fair minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the Tribunal, might reasonably apprehend that the Tribunal may not have brought an impartial mind in determining the application for review (see Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at [27]-[32] per Gleeson CJ, Gaudron and Gummow JJ; NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 at [115] per Allsop J, with whom Moore and Tamberlin JJ agreed).

16. Accordingly, none of the complaints in Ground 2 demonstrate jurisdictional error on the part of the Tribunal.

Ground 3, being paragraphs 6, 7, 8

1. Ground 3 appears to assert that the Tribunal did not properly apply the Complementary Protection provisions under s.36(2)(aa) of the Act.

2. When I asked the applicant what he meant by Ground 3, he simply said I have said everything and the Tribunal did not believe me.

3. Properly read, and without further particularisation, the applicant’s complaint in Ground 3 again appears to challenge the Tribunal’s findings, thereby inviting merits review which this Court cannot undertake.

4. Accordingly, Ground 3 does not demonstrate any jurisdictional error.

Ground 4, being paragraph 9

1. Ground 4 asserts that the Tribunal did not understand the reality of party politics in Bangladesh because it found only high profile activists were victims of attack by AL supporters.

2. In support, the applicant said that AL is in power and that there is no protection of BNP supporters.

3. As stated above, the Tribunal had regard to both the country information provided by the applicant and other country information that it identified. As stated above, it is a matter for the Tribunal the country information to which it has regard and the weight it gives that information.

4. As stated above, the Tribunal’s findings were open to it on the material and evidence before it and for the reasons it gave. Again, Ground 4 appears to seek merits review and, accordingly, as such does not demonstrate any jurisdictional error on the part of the Tribunal.

Ground 5, being paragraph 10

1. Ground 5 also appears to assert that the Tribunal failed to understand the current political environment and “ignored the genuineness of relocation in the Bangladesh”. I asked the applicant what he meant by Ground 5 and the applicant again said that the Tribunal had not believed him.

2. To the extent that Ground 5 appears to raise the issue of relocation, no such issue arose for the Tribunal to consider in circumstances where the Tribunal comprehensively rejected all claims of past involvement or harm as a BNP supporter. The Tribunal summarised its conclusions as follows:

   “83. As I have found the applicant is not a refugee, I have considered

3. As stated above, the Tribunal’s findings were open to it on the material and evidence before it and for the reasons it gave.

4. Accordingly, Ground 5 does not demonstrate any jurisdictional error.

Ground 6, being paragraph 11

1. Ground 6 asserts that the Tribunal “unduly adopted harsh approach in assessing the fear of harm” and failed to take account of all the circumstances which the applicant fears.

2. In support of Ground 6 the applicant again said only that the Tribunal did not believe him.

3. Without further particularisation, and in light of the analysis above, those complaints are not made out.

4. Ground 6 also asserts that the Tribunal did not follow “the Rules of real risk Test of persecution and harm” and failed to give reasons for not applying the Complementary Protection criterion.

5. The Tribunal’s decision record does not support those assertions. As is clear from the above reasons, the Tribunal gave comprehensive and detailed consideration to the applicant’s claims and summarising in detail various exchanges it had with the applicant, including concerns it expressed and the applicant’s responses. The Tribunal provided detailed reasons as to why it did not accept those claims which, as stated above, were open to it on the evidence and material before it and for the reasons it gave.

6. As stated above, the Tribunal was not satisfied that the applicant met the criterion in s.36(2A) or the complementary protection obligations in s.36(2AA) of the Act.

7. The Tribunal considered the applicant’s claims individually and cumulatively in considering if the applicant was a person to whom Australia has protection obligation. The Tribunal’s conclusion that he was not, was open to it on the evidence and material before it and for the reasons it gave.

8. Accordingly, Ground 6 does not demonstrate any jurisdictional error.

Section 438 certificate

1. As is referred to in the Tribunal’s decision record, a certificate, dated 29 April 2015, was issued by the Department in respect of three folios. The Tribunal found that the certificate was invalid and proceeded to treat the documents in the usual way, as if there was not a certificate. The documents contained information in relation to an identity assessment in respect of the applicant disclosing concerns by the Department in respect of the documents the subject of the s.438 certificate. However, as stated above, the Tribunal gave that information to the applicant in accordance with s.424AA of the Act.

2. Further and in any event, the Tribunal accepted the applicant’s identity as claimed and did not place any adverse weight on the information in assessing the applicant’s claims.

3. The first respondent accepted that the certificate is invalid because there was no basis for public interest immunity in relation to the documents.

4. There is no basis upon which the applicant could be found to have suffered practical injustice because of the certificate. This is clear from the fact that the Tribunal gave the information to the applicant in accordance with s.424AA of the Act, accepted the applicant’s claimed identity and did not place any adverse weight on the information in assessing the applicant’s claims.

5. Accordingly, there is no issue in relation to the s.438 certificate that discloses any jurisdictional error on the part of the Tribunal.

Conclusion

1. A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims being made by the applicant; explored those claims with the applicant at a hearing; and, had regard to all material provided in support. The Tribunal put to the applicant matters of concern it had about his evidence and noted the applicant’s responses. The Tribunal identified independent country information to which it had regard. The Tribunal also put to the applicant independent country information before it and invited the applicant to comment upon it.

2. The Tribunal then made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for the reasons it gave. A fair reading of the Tribunal’s decision record makes clear that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law.

3. In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.

4. The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no power to interfere.

5. The proceeding before this Court should be dismissed with costs.

I certify that the preceding sixty five (65) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate: 

Date:  29 May 2018