DPH16 v Minister for Immigration

[2019] FCCA 3581

FEDERAL CIRCUIT COURT OF AUSTRALIA

DPH16 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 3581

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Protection (Class XD) visa – whether the Tribunal failed to take into account relevant considerations – whether the Tribunal took into account the applicant’s claims, evidence and submissions – whether the Tribunal denied the applicant natural justice and/or procedural fairness – whether the Tribunal had a duty to make enquiries – whether the Tribunal took into account irrelevant considerations – whether the Tribunal brought an independent and impartial mind to the determination of the matter on its merits – whether the Tribunal misapplied the relevant law – no jurisdictional error made out – applications dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5AAA, 36, 476

Applicant: DPH16

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3310 of 2016

Judgment of: Judge Street

Hearing date: 10 December 2019

Date of Last Submission: 10 December 2019

Delivered at: Sydney

Delivered on: 10 December 2019

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents: Mr L Dennis
Minter Ellison

ORDERS

1. The name of the first respondent is changed to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs” and the Court dispenses with the need for the filing of any further document in that regard.

2. The application and amended applications are dismissed.

3. The applicant pay the first respondent’s costs fixed in the amount of $5,600.00.

DATE OF ORDER: 10 December 2019

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3310 of 2016

DPH16

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 1 November 2016 affirming the decision of a delegate of the first respondent (“the Delegate”) not to grant the applicant a Protection (Class XD) visa (“Protection visa”).

2. The applicant was found to be a citizen of Bangladesh and his claims were assessed against that country. The applicant was found to be Bengali and a Muslim.

3. On 6 May 2013, the applicant arrived in Australia as an unauthorised maritime arrival. On 2 September 2013, the applicant applied for a Protection visa. The applicant claimed to fear harm in Bangladesh by members or supporters of the Awami League (“AL”) for reason of his support and activism for the Jamaat-e-Islamiya (“JI”) and the Bangladesh National Party (“BNP”).

4. The applicant alleged that his father was a member of the JI, which is associated with the BNP, and was very active in politics. The applicant claimed that he and his brother also supported the JI and the BNP and attended rallies in that regard. The applicant alleged that, after his father died, he and his brother looked after his father’s stationery shop. The applicant alleged that, in about October or November 2008, several AG members came to the shop and he was beaten. The applicant alleged that he left Bangladesh in February 2009 because he wanted to escape this harassment.

5. On 18 May 2015, the Delegate found that the applicant did not meet the criteria for the grant of a Protection visa.

6. On 10 June 2015, the applicant applied to the Tribunal for review of the Delegate’s decision.

7. By letter dated 26 August 2016, the Tribunal invited the applicant to attend a hearing on 11 October 2016. The applicant appeared on that date together with his migration representative to give evidence and present arguments.

8. The Tribunal in its reasons identified the background to the application for review. The Tribunal set out the relevant law. The Tribunal summarised the applicant’s claims. The Tribunal summarised the applicant’s evidence and arguments presented at the hearing, including the applicant’s claimed fear of harm because of his online activities and monitoring by the Bangladesh authorities. The Tribunal referred to the written submissions provided by the applicant.

9. The Tribunal referred to raising with the applicant at the hearing its concerns in respect of a letter sent from a particular organisation alleging that the applicant held a particular executive committee position which the applicant had not asserted. The Tribunal also raised with the applicant the prevalence of fraudulent documents in Bangladesh. The applicant maintained that the document was genuine, however, he maintained that he was not ever a member of the executive committee of the particular organisation as asserted in the document.

10. The Tribunal explored with the applicant his political activity in Australia. The Tribunal expressed its concern that the applicant’s level of political activity did not support him being a very active supporter of the JI.

11. The Tribunal also explored with the applicant his alleged posts on social media. The applicant referred to making posts two years ago. When the Tribunal asked the applicant to disclose the same, the applicant identified that they were not posts but rather they were “likes”. The applicant was not able to prove any activity of posting material going back two years.

12. The Tribunal referred to the alleged incident in 2008. The Tribunal referred to the absence of any mention of spending a month in a health clinic when the matter was raised by the Delegate with the applicant.

13. The Tribunal also raised with the applicant the four years he had spent in Malaysia and why he had not applied for protection in Malaysia if he had feared returning to Bangladesh.

14. The Tribunal identified its concerns with the applicant’s credibility. The Tribunal referred to the applicant only being able to speak in very general terms about the political objectives and aims of the particular party he claims to have had a longstanding relationship with.

15. In relation to his political activity in Bangladesh, the Tribunal found that the applicant provided no detail about the political rallies he claims to have attended, including the reasons behind the rallies, how frequently he attended, where he attended those rallies or what transpired at the rallies. The Tribunal found that the applicant’s accounts did not persuade the Tribunal that the applicant had been personally affected by violence at political rallies or that he regularly participated in political rallies or activities.

16. The Tribunal found that the applicant’s absence of voting at the election in 2008 called into question the applicant’s claimed level of political involvement. The Tribunal referred to the low level of political awareness and involvement which the applicant demonstrated. The Tribunal did not accept the applicant’s reasons for not voting. The Tribunal considered that the applicant was not sufficiently interested or motivated to do so.

17. The Tribunal did not accept that the applicant and his brother moved to Malaysia in the 1990s because they were harassed and intimidated by AL members for their support of JI.

18. The Tribunal expressly referred to the applicant returning to Bangladesh in 2005 when his work visa had expired. The Tribunal found that this suggested that the applicant’s past experiences in the 1990s were not as claimed.

19. The Tribunal identified its concern in respect of the applicant’s claims of past harm in 2008. The Tribunal referred to the applicant’s inconsistent evidence about the nature and the severity of the injuries he claims to have suffered. The Tribunal expressly referred to the applicant’s submissions that were advanced in this regard but did not find any of his responses to be persuasive.

20. The Tribunal found it implausible that the applicant would have been able to escape a group of fifteen men in the manner asserted if he had sustained a broken leg and other serious injuries which required him to spend one month in hospital.

21. Based on the inconsistencies in the applicant’s evidence, the Tribunal did not accept that the applicant fled to another village to stay with an aunt. The Tribunal found the applicant’s evidence in this regard to have been fabricated for the purpose of strengthening his claims.

22. The Tribunal referred to the applicant’s evidence that his mother no longer resides in his home village because of problems she has recently encountered with AL members in relation to the applicant’s political activities. The Tribunal took into account that, at the time of the interview with the Delegate, the applicant made no mention of his mother facing problems with AL members. The Tribunal was concerned as to the credibility of these incidents being raised just two months prior to the Tribunal hearing when the alleged attacks occurred in 2008 and the applicant departed Bangladesh in 2009.

23. The Tribunal did not accept that AL supporters came to question the applicant’s mother because of the applicant’s recent Facebook activity. The Tribunal did not accept that the applicant fled to another location or that his mother was forced to move away from the home village due to harassment and intimidation by AL members.

24. The Tribunal also took into account that the applicant did not make any attempt at claiming protection in the four years he spent living in Malaysia before returning to Bangladesh. The Tribunal was of the view that the applicant’s inaction in this respect undermines his claims to have fled Bangladesh in fear of his life and a fear of returning to Bangladesh.

25. The Tribunal also found that the applicant played no role as alleged in a letter provided by the applicant. The Tribunal found that the fact that the applicant was prepared to provide such documentation in support of his application, which contained information which was not true, called into question the credibility of the applicant’s claims.

26. The Tribunal did not accept that the applicant has a long history of sharing or “liking” political posts on Facebook. The Tribunal was of the view that the applicant had engaged in the Facebook posts for the sole purpose of strengthening his claims for protection and, pursuant to s 91R(3) of the Act, disregarded that activity for the purpose of assessing the applicant’s claim as under the 1951 Refugee Convention. The Tribunal did, however, consider that activity in relation to complementary protection.

27. The Tribunal also took into account the applicant’s limited political profile and activity to date. The Tribunal was not persuaded that the applicant’s online activity has or is likely to be monitored by government officials or members or supporters of the AL. The Tribunal was satisfied the applicant’s past online activity will not place him at risk of significant harm.

28. The Tribunal was satisfied that there is not a real chance or a real risk the applicant will suffer serious or significant harm in the future for reasons of his activities online. The Tribunal was not persuaded that the applicant would engage in politically motivated online activity on return to Bangladesh. The Tribunal concluded this would not be due to a fear of harm but because the applicant is not genuinely motivated to do so and does not have the political profile or interests that the he asserted.

29. The Tribunal found that the applicant was not a witness of truth. The Tribunal did not accept that the applicant has political beliefs which are fundamental to his conscience, that he has become politicised since moving to Sydney or that he is or will be a genuine supporter or member of JI or the BNP or in any way associated with JI or BNP if he returns to Bangladesh now or in the reasonably foreseeable future.

30. The Tribunal referred to the business that was operated by the applicant’s family. The Tribunal was not satisfied that there is a real chance or risk that the applicant will be targeted for that reason.

31. Having considered the applicant’s claims individually and cumulatively, the Tribunal was not satisfied that there is a real chance the applicant would suffer serious harm for the reason of an actual or imputed political opinion or for continuing to work in the family business on return to Bangladesh or that there are substantial grounds to believe that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Bangladesh, there is a real risk that the applicant will suffer significant harm.

32. The Tribunal found that the applicant did not meet the criteria in sub-ss 36(2)(a) or 36(2)(aa) of the Act. Accordingly, the Tribunal affirmed the decision under review.

Before the Court

1. These proceedings commenced were commenced on 25 November 2016.

2. On 6 April 2017, a Registrar of the Court made orders providing the applicant an opportunity to file an amended application, affidavit evidence and submissions.

3. The applicant filed an amended application on 10 August 2017 which provided 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 my harm on the basis of my claims.

   3. The tribunal failed to assess the present situation in Bangladesh since I left.

   4. The tribunal decision effected by the denial of natural justice.

   5. The tribunal made decision without any verification of my genuine documentary evidence and statement.

   And for the safety of my life I forced to came Australia 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. Sometimes I was nervous and confused at the time of interview with the Department & the tribunal. I did not understand the question properly.

   For the protection of my life and I became serious target by the Police, Awami League gang and their activist.

   The Department has accepted that I was very confused. I, myself was not understanding what answer I was giving for what question.

   I believe I was denied procedural fairness when the hearing was conducted not freely and fairly.

   I did not collect the AAT interview CD. After received the CD, I will provide the transcript of AAT hearing.

4. The applicant filed a further amended application on 3 December 2019 which provided as follows:

   Ground One:

   The Administrative Appeals Tribunal has failed to apply the correct test pursuant to Section 36(3) of the Migration Act 1958 (Cth).

   Particulars:

   In dealing with the Applicant's claims under Section 36(3) of the Migration Act, the Administrative Appeals Tribunal explicitly failed to disaggregate the statutory formulae under this section.

   Ground Two:

   The Administrative Appeals Tribunal denied procedural fairness to the applicant.

5. At the commencement of the hearing, the Court explained to the applicant the nature of the hearing and the applicant confirmed that he understood the nature of the hearing as explained by the Court.

6. From the bar table, the applicant maintained that he had always been involved in the JI, that everything he had told the Tribunal was the truth, that he came here for safety and that he was still waiting for justice.

7. The applicant’s claim to fear harm by reason of involvement in the JI was the subject of consideration and adverse findings by the Tribunal. The adverse credibility findings by the Tribunal cannot be said to lack an evident and intelligible justification given, in particular, the inconsistencies in the applicant’s evidence, the provision of the support letter identifying an alleged position that clearly the applicant did not hold and the applicant’s migration history in relation to time in Malaysia and not seeking protection and returning to Bangladesh. The applicant’s disagreement with the adverse findings by the Tribunal does not identify any jurisdictional error.

8. The applicant’s submissions from the bar table otherwise invited the Court to determine the matter on compassionate or discretionary grounds. The Court has no power to do so, nor can this Court revisit the merits.

9. Nothing said by the applicant from the bar table identified any jurisdictional error.

Ground 1 of the Amended Application

1. In relation to ground 1 of the amended application filed on 10 August 2017, there is no relevant consideration that has been identified that the Tribunal failed to take into account.

2. No jurisdictional error is made out by ground 1 of the amended application.

Ground 2 of the Amended Application

1. In relation to ground 2 of the amended application filed on 10 August 2017, the assertion that the Tribunal failed to assess the applicant’s harm on the basis of his claims is, in substance, an invitation to the Court engage in merits review. It is apparent that the Tribunal referred to the applicant’s claims and alleged harm in 2008 and made adverse credibility findings which were open to the Tribunal for the reasons given by the Tribunal.

2. No jurisdictional error is made out by ground 2 of the amended application.

Ground 3 of the Amended Application

1. In relation to ground 3 of the amended application filed on 10 August 2017, the applicant asserts that there was a failure by the Tribunal to take into account the present situation in Bangladesh since the applicant left. It was a matter for the Tribunal to determine what country information the Tribunal accepted. The Tribunal assessed the applicant’s claims to fear harm and made findings dispositive of those claims that were open to the Tribunal. The Tribunal’s reasons reflect an active intellectual engagement with the applicant’s claims, evidence and submissions.

2. No jurisdictional error is made out by ground 3 of the amended application.

Ground 4 of the Amended Application

1. In relation to ground 4 of the amended application filed on 10 August 2017, a bare denial of natural justice does not of itself identify any jurisdictional error. On the face of the material before the Court, the Tribunal complied with its statutory obligations in the conduct of the review. On the face of the Tribunal’s reasons, the Tribunal raised with the applicant in the course of the hearing the issues of concern to the Tribunal and the applicant had a real and meaningful hearing. There is no basis to find that there was any denial of natural justice or procedural fairness in the conduct of the review.

2. No jurisdictional error is made out by ground 4 of the amended application.

Ground 5 of the Amended Application

1. In relation to ground 5 of the amended application filed on 10 August 2017, it was for the applicant to provide sufficient evidence to establish his claims pursuant to s 5AAA of the Act. Further, at the time of sending the letter dated 26 August 2016 to the applicant inviting the applicant to attend the hearing, the Tribunal had provided information conveyed to the applicant that the Tribunal had considered the material before it but was unable to make a favourable decision on that information alone.

2. It was open to the Tribunal and reasonable for the Tribunal to determine the credibility of the applicant’s claims. This is not a case where there has been identified any easily ascertainable material fact that could give rise to any duty to inquire. The applicant’s assertion that steps were not taken to verify his evidence erroneously assumes an obligation on the Tribunal to do so. It was for the applicant to provide sufficient evidence to establish his claims. It was open to the Tribunal to make the adverse credibility findings for the reasons given, as summarised above.

3. No jurisdictional error is made out by ground 5 of the amended application.

Particulars of the Amended Application

1. In relation to the first particular, it merely repeats the applicant’s claims. The first particular does not identify any jurisdictional error.

2. In relation to the second particular, that asserts the asking of irrelevant questions to test the applicant’s credibility. It was open to the Tribunal to ask questions in relation to credibility. Further, no transcript has been tendered. There is no basis to find that questions in relation to credibility were irrelevant. The second particular does not identify any jurisdictional error.

3. In relation to the third particular, the applicant sought to proffer an explanation for the inconsistency in his evidence. That is not a matter that does other than invite the Court to engage in merits review. The third particular does not identify any jurisdictional error.

4. In relation to the fourth particular, it is no more than an assertion of the applicant’s claimed fear. The Tribunal found that the applicant did not meet the criteria under the 1951 Refugee Convention or the criteria in respect of complementary protection. The fourth particular does not identify any jurisdictional error.

5. In relation to the fifth particular, it refers to the Department which is not a matter capable of falling within this Court’s jurisdiction because it is the Tribunal only that is the subject of this Court’s jurisdiction. The content of the fifth particular, in any event, is unsupported by any evidence. The Tribunal’s reasons on their face reflect the applicant having a real and meaningful hearing. There has been no evidence adduced by the applicant to support any difficulty by the applicant with the interpreter or in the understanding of the evidence by the Tribunal. The Court is not satisfied there was any material interpreter error misunderstanding by the Tribunal of the applicant’s claims and evidence. The fifth particular does not identify any jurisdictional error.

6. In relation to the sixth particular, it asserts that the hearing was not conducted freely and fairly. There is no evidence that has been adduced by the applicant in support of the same. The Tribunal exploring with the applicant his credit and the making of adverse findings by the Tribunal are not conduct by reason of which a fair-minded lay observer might reasonably apprehend that the Tribunal might not bring an independent and impartial mind to the determination of the matter on its merits. Further, on the material before the Court, the Tribunal conducted the review with an open mind reasonably capable of persuasion as to the merits. No bias or apprehended bias is made out. The sixth particular does not identify any jurisdictional error.

7. The seventh particular makes an assertion of steps that have not been taken. The seventh particular does not identify any jurisdictional error.

8. Nothing in the amended application filed on 10 August 2017 makes out any jurisdictional error.

Ground 6 and Particulars of the Original Application

1. The Court notes that, to the extent that the original application included a sixth ground which is omitted from the amended application, that sixth ground has no prospect of success because the decisions of the Delegate and the Tribunal were patently different and independent assessments of the applicant’s claims.

2. There was also a further particular in the original application asserting a misunderstanding or misconstruction of the facts. No evidence has been adduced by the applicant in support of any such misunderstanding or misconstruction. The applicant’s disagreement with the Tribunal’s adverse credibility findings does not give rise, in the circumstances of the present case, to any jurisdictional error as those adverse credibility findings were open for the reasons given by the Tribunal.

3. Accordingly, nothing in the original application identifies any jurisdictional error.

Ground 1 of the Further Amended Application

1. In relation to ground 1 of the further amended application filed on 3 December 2019, it may have minded to allege that there was a failure by the Tribunal to correctly apply the tests under sub-s 36(2) of the Act. The Tribunal correctly identified to apply the tests in relation to sub-ss 36(2)(a) and 36(2)(aa) of the Act and there is no basis to find that the Tribunal misapplied the law or failed to apply the correct test.

2. The reference to s 36(3) of the Act in the ground may be an error. No finding was made under sub-s 36(3) of the Act. Whilst it is correct that the Delegate turned to the issue of whether the applicant could obtain protection elsewhere, there was no finding by the Tribunal that the applicant was not the subject of a protection obligation by reasons of facts falling within sub-s 36(3) of the Act. The absence of such a finding or express consideration of the same in the Tribunal’s reasons does not give rise to any jurisdictional error.

3. No jurisdictional error arises by reason of ground 1.

Ground 2 of the Further Amended Application

1. In relation to ground 2 of the further amended application filed on 3 December 2019, this is a repetition of the assertion of a denial of natural justice in the earlier grounds. For the reasons earlier given, there is no basis to find that there was any denial of procedural fairness in the conduct of the review.

2. No jurisdictional error is made out by ground 2 of the further amended application.

3. As each of the applications filed by the applicant fails to make out any jurisdictional error, the applicant’s original application, amended application and further amended application are dismissed.

I certify that the preceding sixty-nine (69) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 10 December 2019 and the parties were provided sealed copies of the Court’s orders

Associate:  

Date:  26 February 2020