DRY18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 732
•16 August 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DRY18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 732
File number(s): SYG 1988 of 2018 Judgment of: JUDGE LAING Date of judgment: 16 August 2024 Catchwords: MIGRATION – application for judicial review of a decision by the Administrative Appeals Tribunal – whether the Tribunal failed to consider evidence or claims – whether the Tribunal relevantly erred by failing to make inquiries – whether the Tribunal’s reasoning was open on the material before it – application dismissed Cases cited: CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496
Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1
WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 256 FCR 593
Division: Division 2 General Federal Law Number of paragraphs: 33 Date of hearing: 11 July & 31 July 2024 Place: Sydney Appearing for the Applicant: In person Solicitor for the First Respondent: Ms C Warren of Sparke Helmore Lawyers Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 1988 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DRY18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LAING
DATE OF ORDER:
16 AUGUST 2024
THE COURT ORDERS THAT:
1.The application 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 LAING:
The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal. The Tribunal set aside a decision of a delegate (Delegate) of the first respondent (Minister) refusing to grant the applicant a Protection (Class XA) visa and substituted a decision refusing to grant the applicant a Protection (Class XD) visa.
BACKGROUND
The applicant is a citizen of Bangladesh who arrived in Australia in 2013 as an unauthorised maritime arrival.
On 27 August 2013, the applicant applied for a protection visa. On 17 December 2014, the Delegate refused the application. The applicant applied to the Tribunal for review of the Delegate’s decision on 23 December 2014.
The applicant attended a hearing before the Tribunal on 18 May 2016. On 25 August 2016, the Tribunal (as then constituted) affirmed the Delegate’s decision.
On 7 October 2016, the Federal Circuit Court of Australia (as it was) made orders quashing the Tribunal’s decision and requiring that the application to it be reconsidered according to law.
On 23 March 2018, the applicant attended a further hearing before the Tribunal. On 29 June 2018, the Tribunal set aside the decision to refuse to grant a Protection (Class XA) visa and substituted a decision to refuse to grant the applicant a Protection (Class XD) visa.
THE TRIBUNAL’S DECISION
At [3], the Tribunal stated:
3.The applicant applied for a Protection (Class XA) visa. However, by operation of s.45AA of the Act and r.2.08F of the Migration Regulations 1994, from 16 December 2014 the application is taken to be, and to have always been, a valid application for a Temporary Protection (Class XO) visa and is taken not to be, and never to have been, a valid application for a Protection (Class XA) visa. Although the delegate refused the application as an application for a Protection (Class XA) visa, the effect of r.2.08F is such that the application the Tribunal must consider is one for a Temporary Protection (Class XD) visa.
The Tribunal found that the applicant was not a credible witness. The Tribunal identified various issues with the applicant’s claims, including inconsistencies in the evidence that he had given at different stages (at [25]–[35]). The Tribunal did not accept that certain documentary evidence the applicant had submitted was genuine, having regard to issues with the documents that it identified and information regarding the prevalence of document fraud in Bangladesh (at [36]-[39]).
Taking into account its adverse credibility findings, Tribunal made the following findings regarding the applicant’s claims relating to a jewellery store, the Awami League and the Bangladesh Nationalist Party (BNP) (at [42]-[43]):
42.Due to the applicant's lack of credibility and having given no weight to the documentary evidence he has submitted, I do not accept the claims for protection he had made in relation to the jewellery store, Awami League and BNP. That is to say that I do not accept that the applicant and his brother owned and worked in a jewellery store in Bangladesh, I do not accept that the applicant or his brother had any problems with or were harmed by the Awami League in Bangladesh in any of the ways he has claimed. I do not accept that the applicant joined the BNP and engaged in BNP activities in Bangladesh or that he holds any anti-Awami League opinions. Nor do I accept that the applicant's brother, father or cousin/cousin brother [name redacted] voted for the BNP or are members or supporters of the BNP or any associated group such as JI. I do not accept that the applicant fled Bangladesh because of any harm he had been subjected to or fears in Bangladesh from the Awami League.
43.I thus find that the applicant has not been harmed by the Awami League in the past and will not be of any adverse interest to the Awami League in the reasonably foreseeable future if he returns to Bangladesh. I therefore find there is not a real chance that the applicant will be killed, extorted, denied the ability earn a livelihood, or subjected to any serious harm or significant harm by the Awami League if he returns to Bangladesh for reasons of political opinion (either actual or imputed) or any other reason.
The Tribunal considered that there was no independent evidence before it indicating that returnees to Bangladesh from a Western country were viewed with suspicion, kidnapped or harmed in any way because they were returnees from a Western country, because they were imputed to be wealthy, or due to any actual or imputed characteristic they acquired during the time they spent in the West. The Tribunal found that there was not a real chance that the applicant would face serious or significant harm from anyone in Bangladesh as a returnee from a Western country or due to any characteristic, actual or imputed, that he acquired in Australia (at [44]-[47]).
Having regard to the above, the Tribunal concluded that there was not a real chance that the applicant would suffer serious or significant harm by the Awami League for any reason, or from anyone because he is a returnee from a Western country. The Tribunal therefore found that the applicant was unable to meet the criteria for the protection visa. Accordingly, the Tribunal affirmed the Delegate’s decision (at [48]-[51]).
PROCEEDINGS BEFORE THIS COURT
The applicant commenced the current proceedings through an application filed on 17 July 2018. He relied upon the following grounds:
1. The Tribunal failed to assess harm based on my claims.
2. The Tribunal failed to assess the present situation in Bangladesh since I left.
3.The Tribunal made decision without any verification of my genuine documentary evidences and statement.
Ground 1
Ground 1 contended that the Tribunal “failed to assess harm” based upon the applicant’s claims. The ground was unparticularised.
At the hearing of this matter, the applicant did not identify any specific claim that he contended was made that the Tribunal failed to consider. I have understood the issue raised by the applicant not to be that his claims were not considered, but that they were not considered favourably.
I accept the Minister’s submission that the Tribunal considered the claims that were made by the applicant. As the Tribunal stated at [22] of its decision, although the detail of the applicant’s claims had varied over time, the applicant had, broadly, claimed to face harm due to issues that he had experienced with the Awami League in connection with a jewellery store and because he had joined the BNP. These claims were rejected at [42]-[43] of the Tribunal’s decision. This was on account of adverse findings that the Tribunal made regarding the applicant’s credibility, following identification of a number of concerns. Those concerns included inconsistencies in the evidence given by the applicant regarding:
(a)how long he had worked in the jewellery store (at [26]);
(b)the nature of his problems with the Awami League and how he contended they had manifested in the past (at [27]);
(c)how long the applicant had stayed in India (at [28]);
(d)what occurred when the applicant returned to Bangladesh from India (at [29]);
(e)which family members were involved with the BNP, and their level of involvement (at [30]-[32]); and
(f)when the applicant had joined the BNP (at [33]).
The Tribunal did not accept (without supporting evidence) the various explanations that the applicant had given for inconsistencies in his evidence, including reference to language differences, interpretation issues, transcription issues and challenges of providing evidence across different interviews.
The Tribunal was also concerned by the applicant’s lack of knowledge about the BNP, despite his claim to have attended meetings and processions (at [34]). In relation to documents submitted, the Tribunal was concerned that two letters from the Bangladesh Jewellery Association (BJA) were said to have been written on the same day by the same people but with a different letterhead, which the applicant could not explain. The Tribunal was also concerned by the same phrase appearing in documents submitted, despite them apparently having been issued by two different organisations. These issues, together with country information regarding the prevalence of document fraud in Bangladesh, resulted in the Tribunal considering that the documents were non-genuine (at [36]-[39]).
The applicant’s claims to face harm as a returnee from a Western country were not accepted by the Tribunal, in the absence of any independent supporting evidence having been provided to or located by the Tribunal (at [44]-[47]).
It has not been demonstrated that the above reasoning was closed to the Tribunal. I accept the Minister’s submission that this reasoning was based on rational grounds and arrived at on consideration of matters that were logically probative: see CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496 at [36]-[44].
It has also not been demonstrated that the above reasoning failed to consider or dispose of any claim that was made by the applicant, or that relevantly arose on the material that was before the Tribunal.
I accept that the applicant may well disagree with the Tribunal’s reasoning. However, as was discussed at the hearing of this matter, this Court has no power to set the Tribunal’s decision aside based upon disagreement alone.
It follows that ground 1 is unable to succeed.
Ground 2
Ground 2 contended that the Tribunal “failed to assess the present situation in Bangladesh” since the applicant left.
In oral submissions, the applicant suggested that he had not submitted material to the Tribunal in this regard due to a lack of knowledge. However, the applicant was, at times, represented before the Tribunal. At least some submissions and evidence were before the Tribunal in relation to the applicant’s claims. It is not apparent what other material the applicant may have submitted, nor how his omission in doing so would be capable of demonstrating any relevant error on the part of the Tribunal.
As the Minister observed, some country information regarding the situation in Bangladesh was provided to the Tribunal by the applicant’s then representatives. This information was provided in support of a claim that the applicant would face a real chance of harm on account of his involvement with the BNP. The Tribunal did not accept that the applicant was involved with the BNP, however, and rejected the applicant’s associated claims in their entirety. In doing so, the Tribunal did not doubt the country information before it regarding the existence of political violence. Rather, the Tribunal was unwilling to accept that the applicant had encountered such issues, in the manner claimed, on account of its concerns regarding his personal credibility. Implicit in this reasoning was the Tribunal’s rejection of the relevance of country information regarding the risk of violence to BNP supporters and Awami League opponents to the applicant’s personal situation. I therefore accept the Minister’s submission that any related claims about the current situation in Bangladesh were subsumed in the Tribunal’s findings of greater generality: WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 256 FCR 593 at [47] (French, Sackville and Hely JJ).
I also accept the Minister’s submission that it has not been demonstrated that the applicant advanced any express claim to fear harm more generally as a result of the situation in Bangladesh. It is not apparent that such a claim squarely arose on the material. In these circumstances, it has not been demonstrated that the Tribunal was obliged to consider such a claim: NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 at [58].
In relation to the applicant’s claim to face harm as a returnee from a Western country, it is apparent that the applicant did not provide country information capable of supporting this and none was able to be located by the Tribunal. In these circumstances, it is unclear how the Tribunal could be said to have relevantly erred. The Tribunal did not fail to assess the situation in Bangladesh. Rather, the Tribunal drew inferences, in its assessment, from the lack of evidence supporting what the applicant contended the situation to be. This was logically capable of supporting the Tribunal’s non-acceptance of the applicant’s claims in this regard.
For the above reasons, ground 2 is unable to succeed.
Ground 3
Ground 3 complained that the Tribunal made its decision “without any verification of [the applicant’s] genuine documentary evidences and statement.” At the hearing of this matter before the Court, the applicant generally submitted that his evidence should have been checked, and that his “shop was there”, which was generally known and could have been checked by the Tribunal.
As the Minister submitted, the Tribunal was not under any general duty to make inquiries: Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594 (SZGUR) at [20], [22], [41] (French CJ and Kiefel J, as her Honour then was). This is not a case in which the Tribunal could be said to have failed to conduct the requisite review by failing to make “an obvious inquiry about a critical fact, the existence of which [was] easily ascertained”: see Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429 at [25] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ). As was observed by the Minister, this was in circumstances where:
(a)it was for the applicant to make his case before the Tribunal (SZGUR at [84] per Gummow J);
(b)it is not apparent that the applicant asked the Tribunal to make any particular inquiries;
(c)the applicant was on notice that his credibility and the genuineness of the documentary evidence was in issue, from the Delegate’s decision and the decision of the Tribunal as previously constituted; and
(d)it is not apparent from the materials that inquiries might have been readily made, nor what result they may have been expected to have yielded in the above circumstances.
Having regard to the above, ground 3 is unable to succeed.
CONCLUSION
For the above reasons, the application before the Court must be dismissed.
I will hear from the parties in relation to costs.
I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing. Associate:
Dated: 16 August 2024
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