Dol16 v Minister for Immigration
[2018] FCCA 2267
•16 August 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DOL16 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2267 |
| Catchwords: MIGRATION – Review of decision by Administrative Appeals Tribunal – whether Administrative Appeals Tribunal’s decision affected by jurisdictional error – whether Administrative Appeals Tribunal failed to take into account relevant considerations – whether Administrative Appeals Tribunal considered all claims before it – whether Administrative Appeals Tribunal afforded the applicant procedural fairness – whether Administrative Appeals Tribunal considered all evidence and material before it – whether Administrative Appeals Tribunal’s decision was formed independently to that of a delegate of the Department of Immigration – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 424A, 424AA, 474, 476 |
| Cases cited: ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 |
| Applicant: | DOL16 |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3279 of 2016 |
| Judgment of: | Judge Emmett |
| Hearing date: | 16 August 2018 |
| Date of Last Submission: | 16 August 2018 |
| Delivered at: | Sydney |
| Delivered on: | 16 August 2018 |
REPRESENTATION
| The Applicant appeared in person with the assistance of an interpreter. |
| Solicitor for the Respondents: | Ms Sophie Given (HWL Ebsworth Lawyers) |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3279 of 2016
| DOL16 |
Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
This is an application pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Administrative Appeals Tribunal dated 27 October2016 (“the Tribunal”), dismissing an application for review by the Tribunal of a decision of a delegate of the first respondent (“the Delegate”) made on 19 February 2015 refusing the applicant a Protection (Class XD) visa (“Protection Visa”).
The relevant factual background and the Tribunal’s decision are accurately summarised in the submissions of the first respondent in paragraphs [2] - [13], as follows:
“2. The applicant, a male citizen of Bangladesh, arrived in Australia by boat on 28 March 2013. On 24 July 2013, he applied for a Protection visa (the visa) (CB 20 to 44).
3. In a statutory declaration dated 10 July 2013, the applicant made the following claims (CB 68 to 75):
(a) He feared harm from the Awami League on the basis of his membership of the Jamaat-e-Islami political party.
(b) His father, a "staunch supporter" of Jamaat-e-Islami, purchased land approximately 25 years earlier with two of his brothers, one of which later became an active Awami League member (uncle).
(c) Prior to the death of his father, the applicant's family lived in the land his father owned in Buisetela Village, however since his father's death in 2002, the applicant's uncle began "causing trouble".
(d) The applicant's uncle and five of his sons (cousins), who are active Awami League members, attempted to forcibly take the land owned by the applicant's family. His uncle and cousins had alleged that the applicant's father did not legally acquire the land, despite the deed being in the possession of the applicant's wife.
(e) Since 2002 his family had been forced to move by his uncle and cousins, who are powerful and politically connected. In early 2013 his uncle and cousins threatened to harm him if he did not hand over the legal documents relating to his father's land, and as a result he and his family relocated to his father-in-law's residence in Bastipour village.
(f) As his life was in danger, he decided to flee the country in March 2013.
(g) Since arriving in Australia, he learnt that his younger brother had also fled Buisetela village due to the land dispute.
(h) His wife was living with her father in Bastipour village and there was a possibility that his uncle may discover her whereabouts as the deed remained in her possession.
(i) His older brother continued to occupy a small area of the land and had not been targeted by their uncle because he had agreed to the transfer of the land.
(j) He would be seriously harmed and possibly killed by his uncle and cousins who want him to transfer the family land, he did not believe that the Bangladeshi authorities would protect him as he was a member of Jamaat-e-Islami, no matter where he moves he would be targeted by his uncle and cousins as they are influential members of the Awami League, and it would not be possible for him to relocate to another area as he had lived in Buisetela village all his life and did not own land or property in any other area in Bangladesh.
4. On 19 February 2015, a delegate of the Minister refused to grant the applicant the visa (CB 106 to 126).
5. On 24 February 2015, the applicant lodged an application with the Tribunal, seeking review of the delegate's decision (CB 127 to 128), and attaching a copy of the delegate's notification of decision (CB 131 to 134).
6. On 1 June 2016, the Tribunal invited the applicant to a hearing (CB 142 to 145). After rescheduling the hearing on two occasions (see CB 153 to 156 and 161 to 163), the applicant appeared at a hearing of the Tribunal on 23 August 2016 to give evidence and present arguments, assisted by an interpreter in the Bengali language (CB 168 to 171). At the hearing, the applicant provided a number of documents including a letter to the police (and translation) and newspaper articles (and translations) (CB 172 to 186).
7. The applicant also gave the following evidence:
(a) He had referred to issues arising from land being taken from his family at his entry interview; however this had not been recorded (CB 205 at [27]).
(b) Since travelling to Australia, his wife returned to his home village from time to time. Only after the events of November 2014 did she permanently move in with her parents (CB 205 at [31]).
(c) His brother Taufiq was living in the home village, but in a different part of the village (CB 206 at [35] to [36]).
(d) The applicant was the key target of his uncle, despite the land being owned by all of the brothers (CB 206 at [41]).
(e) There were about 70 supporters of Jamaat-e-Islam in his village, made up of about three families, and the majority of the population of the village were Awami League supporters (CB 207 at [48]).
(f) His uncles had beaten him over the land dispute, rather than because of his political beliefs (CB 207 at [50]), and his main fear of harm was based on the land dispute rather than his political involvement, despite his involvement in Jamaat-e-Islami being one key reason he feared harm (CB 207 at [52]).
(g) A bomb had gone off at a rally in 2012 injuring 50 to 60 people (CB 208 at [54] to [55]).
(h) He had answered "no" to the question "were you or any members of your family involved in any activities or protests against the government" because he was scared to admit his involvement with politics in Bangladesh (CB 208 at [59] to [60]).
8. On 8 September 2016, the Tribunal invited the applicant to comment on or respond to adverse information received by it (CB 190 to 192). That information was information contained in the record of the applicant's entry interview on 3 May 2013. The Tribunal's letter noted that in that interview, the applicant answered "no" to the question "were you or any members of your family involved in any activities or protests against the government?". The Tribunal's letter further noted that this information is relevant to the review because it was inconsistent with the applicant's evidence in the Tribunal hearing that the applicant had been involved in protests and demonstrations, including in which he was injured, and in which a bomb went off and other individuals were injured. The Tribunal's letter further noted that this information was relevant in determining the extent to which the authorities would seek to target the applicant, given his limited political involvement, and that if the Tribunal relied on the information in making its decision, it may question the applicant's credibility about claims of political involvement, claims to have been involved in protests and demonstrations, claims about a bomb going off in one demonstration and the applicant and other individuals being injured in demonstrations, and whether the applicant had a level of political involvement that would result in him being targeted by authorities on return (CB 191).
9. On 8 September 2016 the applicant responded to the Tribunal's invitation to comment or respond to the Tribunal (CB 193 to 194).
10. On 28 October 2016, the Tribunal notified the applicant, via his representative, of its decision made on 27 October 2016 affirming the decision of the delegate (CB 195 to 211).
Tribunal decision
11. The Tribunal had serious concerns as to the applicant's credibility due to the changing nature of his claims and evidence. The Tribunal was not satisfied that the applicant or his family fled the local area due to his claimed difficulties, nor was it satisfied that the applicant's uncle or other extended family members had an intention to harm the applicant or his family based upon their possession of title deeds to property, or for any other reason (CB 207 at [44]).
12. With respect to the applicant's claims about his political involvement, the Tribunal considered that the applicant had been untruthful in giving evidence to the Tribunal about this as well as his participation in demonstrations, and being injured in a demonstration, and did not accept these claims (CB 209 at [63] and [65]).
13. The Tribunal was prepared to accept that the applicant had a loose, low-level and limited connection with Jamaat-e-Islami in his village (CB 209 at [66]). The Tribunal also accepted that the applicant would likely participate in the same low level manner as before, namely being involved in closed meetings (CB 209 at [66]). However, after considering country information as to the present situation in Bangladesh (see CB 203 at [20]), the Tribunal was not satisfied that such limited involvement would result in the applicant being a target of Awami League or the government, such as to lead to the applicant facing a real chance of serious or significant harm, including by way of mistreatment by authorities or discrimination (CB 210 at [72]).”
The applicant was unrepresented before this Court, although had the assistance of an interpreter.
On 6 April 2017, the applicant attended a directions hearing before a registrar of this Court. On that occasion, the applicant was provided with the contact details of legal services providers and interpreting and translation services in documents headed in his own language. The applicant was also 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.
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.
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. I also explained to the applicant that the grounds of the application made bare assertions that were unsupported by particulars and did not by themselves disclose an error capable of review by this Court.
The applicant confirmed that he relied on the grounds contained in an Application filed on 23 November 2016 as follows:
“1. In making decision, the Administrative Appeals Tribunal acted without jurisdiction or in excess of jurisdiction when it failed to take into account relevant considerations.
2. The tribunal failed to assess harm based on my claims.
3. The tribunal failed to assess the present situation in Bangladesh since I left.
4. The tribunal decision effected by the natural justice.
5. The tribunal made decision without any verification of my genuine documentary evidence and statement.
6. The Tribunal decision is identical or similar of the Departmental decision.
Particulars:
AAT unreasonably raised doubt over my claims for political opinion. The Department and the Tribunal misunderstood or misconstrued the facts which was effect the decision.
And for the safety of my life I forced to leave Bangladesh by boat. When it became worse, I decided to leave Bangladesh.
I argue that the Department and the Tribunal asked many irrelevant questions to test the credibility of my evidence.
The Department and the Tribunal found inconsistency because the questions were asked in such a manner for which I was not prepared after arrived by boat in Australia. Sometimes I was nervous and confused at the time of interview with the Department & the tribunal. I did not understand interpreter properly.
For the protection of my life and I became serious target by the Police, Awami League gang and there activist.
The Department has accepted that I was very confused. I, myself was not understanding what answer I was giving for what question. I will provide more details in my Amended Application.
I believe I was denied procedural fairness when the hearing was conducted not freely and fairly.”
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.
Without exception, the applicant’s principle submission and concern was that the Tribunal had failed to consider his safety if he was returned to Bangladesh. The applicant gave that response in respect of each of the grounds and in respect of the particulars.
Otherwise, each of the grounds makes a bare assertion unsupported by particulars or oral or written submissions beyond those to which I have referred.
In relation to Ground 5, the applicant also said that the Tribunal had failed to consider evidence that he had provided in support of his claims. However, for the reasons below, such a complaint was not made out.
In considering the applicant’s claims, the Tribunal set out, in full, the applicant’s statutory declaration dated 10 July 2013, in respect of those claims, and also identified with particularity, copies of newspaper reports and translations provided by the applicant in relation to the claimed land dispute.
The Tribunal also referred to the provision by the applicant to the Tribunal of a letter to the Police Super of Chudanga District dated 10 November 2014, provided by the applicant’s brother, reporting incidents in relation to threats that he received which caused him to leave his home and family in fear and not to return.
The Tribunal considered that evidence but found the information in the applicant’s brother’s letter to the Police Super to be inconsistent with the claims made by the applicant at the hearing. In particular, the Tribunal noted that the applicant had said that his brother continued to live in the same village, although not on the family land.
The Tribunal identified to the applicant at hearing the inconsistency between the applicant’s evidence and the information in the letter from the applicant’s brother, and noted the applicant’s response that the brother is in a different part of the village. The Tribunal noted that, when questioned further, the applicant indicated that the brother is about three kilometres away.
The Tribunal noted that it told the applicant that it found it difficult to accept that if the brother was in fear of his life that he would relocate only three kilometres away from the uncle.
The Tribunal found that the inconsistency between the claimed significant fear of the brother stated in the police report and the fact that the brother is now living in the same village as the extended family who, allegedly, wished to harm him, undermined the truth of the applicant’s claims in relation to the family land, as well as the veracity of the media reports and statement to the police by the brother in relation to events claimed to have taken place in November 2014.
The Tribunal also noted with specificity the country information to which it had regard.
The Tribunal had a particular concern with the failure of the applicant to make any claims at his Entry interview relating to the family land being the source of harm or difficulty from relatives. The Tribunal noted that at the Entry interview, the applicant referred to a well being stolen by the Awami League and the applicant being arrested and charged with stealing the land of his neighbours. The Tribunal noted that those were not claims made by the applicant as part of his written application for a Protection Visa and were not raised by the applicant in his interview with the Delegate.
The Tribunal raised at the hearing the failure of the applicant to make a claim at the Entry interview concerning harm from the family land dispute and gave that information to the applicant pursuant to s.424AA of the Act.
The Tribunal noted the applicant’s response that he had referred to the issues of land being taken from his family at the Entry interview, but that it was not recorded. The applicant also indicated that what he said at his Entry interview was true and that there was a dispute with the neighbours and he was beaten and charged.
However, the Tribunal did not accept that if the applicant had made those claims at the Entry interview about a fear of harm from extended family members taking over his land, it would not have been recorded at the Entry interview.
In making that finding, the Tribunal accepted that the Entry interview may have been a difficult and stressful process for the applicant.
The Tribunal also noted that, at the Entry interview, the applicant claimed he was a member of Jamaat-i-Islami, but otherwise did not elaborate on his claims in relation to a fear of harm for that reason.
In accordance with s.424A of the Act, the Tribunal put to the applicant that, in the record of the Entry interview, the applicant had answered “No” to the question: “Were you or any members of your family involved in any activities or protests against the government?”. The Tribunal noted that that information was relevant because it was inconsistent with the applicant’s evidence in the Tribunal hearing that he had been involved in protests and demonstrations, including in which the applicant was injured and in which a bomb went off and individuals were injured. The Tribunal noted the applicant’s response that he had indicated he had answered “No” to the question because he was scared to admit his involvement with politics in Bangladesh. The applicant stated that he thought that if he made such admissions he would face trial due to his political beliefs.
The Tribunal also noted that the applicant said that, in the Entry interview, he was under duress and was scared to admit anything about his political beliefs.
Ultimately, the Tribunal made adverse credibility findings in respect of the applicant’s evidence, partly based on the inconsistency of the answers given by the applicant at the Entry interview. In particular, the Tribunal found that the way the applicant gave his evidence at hearing as to his involvement in demonstrations and harm suffered by himself and others, did not cause the Tribunal to consider the applicant was speaking from actual experience. That concern was in addition to the inconsistencies that the Tribunal found to exist in the applicant’s evidence. The Tribunal found that details had to be pried from the applicant piece by piece, leaving the Tribunal to form the impression that the applicant was concocting a story as he went along.
Ultimately, the Tribunal comprehensively rejected the applicant’s claims based on adverse credibility findings.
The Tribunal’s findings were open to it on the evidence and material before it and for the reasons it gave, including its adverse credibility findings. The Tribunal’s credibility findings were based on rational grounds and arrived at after considering those factors that were logically probative of the issue of credibility. The Tribunal’s findings were not tainted by any failure to afford procedural fairness or reaching a finding without a logical or probative basis, or unreasonableness and were not without an intelligible foundation (see ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 at [83] per Griffiths, Perry, Bromwich JJ).
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).
There is nothing on the face of the Tribunal’s decision record to suggest that there was any denial of procedural fairness to the applicant. The Tribunal complied with the statutory regime in inviting the applicant to come to a hearing to give evidence and make submissions. Those allegations by the applicant are otherwise wholly unparticularised, save for the applicant’s continued assertion that the Tribunal had failed to consider his safety.
That complaint is not sustainable.
On a fair reading of the Tribunal’s decision record, the Tribunal explored, in detail, the concerns it had about the applicant’s evidence and put to him inconsistencies for comment and noted the applicant’s responses.
The Tribunal made its adverse findings in relation to those inconsistencies, as it was entitled to do, in the context of its awareness that the Entry interview may have been a difficult and stressful process.
The Tribunal found that the applicant would not undertake direct activities against the government or be involved in protests, as the Tribunal found he had not in the past. The Tribunal was not satisfied that the applicant would seek to recruit individuals from other parties to Jamaat-i-Islami.
In considering whether the applicant met the complementary protection criterion, the Tribunal found that the applicant did not face a real chance of serious or significant harm if he was returned to Bangladesh.
The Tribunal was not satisfied that the applicant’s limited political involvement would result in the applicant being a target of the Awami League or the government, such as to lead the applicant to face a real chance of serious or significant harm, including by way of mistreatment by authorities or discrimination.
Having rejected the applicant’s claims in relation to the land dispute and his involvement in political activities, the Tribunal was not satisfied that the applicant met either the refugee convention criteria or the complementary criterion. Accordingly, the Tribunal found that the applicant did not satisfy s.36(2)(a) or s.36(2)(aa) of the Act and the Tribunal affirmed the decision under review.
In relation to the applicant’s complaint in Ground 6 that the Tribunal decision is identical or similar to the Departmental decision, the applicant declined to make any submissions in response to that ground other than, again, to reiterate that the Tribunal had failed to consider his safety. The particulars provided appear to be in support of Ground 6.
A fair reading of the Tribunal’s decision record makes clear that the Tribunal independently and carefully considered the applicant’s claims and the evidence that he presented in support of those claims.
True it is that neither the Delegate nor the Tribunal accepted the credibility of the applicant. However, a fair reading of the Tribunal’s decision record makes clear that its findings and conclusions were not dependent on those of the Delegate. There is nothing to suggest that the Tribunal conducted its review other than in accordance with the statutory regime.
In the circumstances, the applicant’s grounds do not identify any jurisdictional error on the part of the Tribunal and appear more to be a disagreement with the findings and conclusions of the Tribunal. The applicant’s complaints, such as they are, invite 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.”
In conclusion, 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 country information to which it had regard and made findings based on the evidence material before it, which were open to it 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.
In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including in the conduct of its review.
The Tribunal’s decision is not affected by jurisdictional error and is, therefore, a privative decision. Accordingly, pursuant to s.474 of the Act, this Court has no power to interfere.
The proceeding before this Court should be dismissed with costs.
I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Judge Emmett
Date: 21 August 2018
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Statutory Construction
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