DTL16 v Minister for Immigration
[2018] FCCA 2201
•16 August 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DTL16 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2201 |
| Catchwords: MIGRATION – Application for judicial review of decision of delegate not to grant applicant a protection visa – whether the Tribunal properly considered the applicant’s claim that he is a stateless Rohingya – whether it was reasonably open to the Tribunal not to accept applicant to be a credible witness – whether applicant suffered from mental conditions that prevented him from participating meaningfully in the hearing before the Tribunal – whether jurisdictional error because representative of applicant did not provide medical report to Tribunal – whether Tribunal conducted hearing unfairly – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.36(2A), 36(2)(a), 36(2)(aa), 45AA Migration Regulations 1994 (Cth), r.2.08F |
| Cases cited: Minister for Immigration & Multicultural & Indigenous Affairs v SCAR [2003] FCAFC 126; (2003) 128 FCR 553 Minister for Immigration and Citizenship v SZNCR [2011] FCA 369 SZQBN v Minister for Immigration and Border Protection [2014] FCA 686 |
| Applicant: | DTL16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3483 of 2016 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 2 August 2018 |
| Date of Last Submission: | 2 August 2018 |
| Delivered at: | Sydney |
| Delivered on: | 16 August 2018 |
REPRESENTATION
| Applicant in person assisted by an interpreter |
| Solicitors for the First Respondent: | Ms K Hooper of MinterEllison |
ORDERS
The application is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3483 of 2016
| DTL16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant applies for judicial review of a decision of the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant a Temporary Protection (Class XD) visa.
The applicant arrived in Australia as an unauthorised maritime arrival on 6 May 2013. On 11 June 2014 he applied for a Protection (Class XA) visa. A delegate refused that application on 21 April 2015. By operation of s.45AA of the Migration Act 1958 (Cth)(Act) and r.2.08F of the Migration Regulations 1994 (Cth) the applicant’s application was taken to be and to have always been an application for a Temporary Protection (Class XD) visa (Protection visa).
Claims for protection
In his application for a Protection visa (written claims), the applicant claimed as follows:[1]
[1] CB47-51
a)The applicant is stateless, his race is Rohingya, and his religion is Sunni Muslim.
b)His parents were born in Myanmar, but they have no legal right to reside there and they moved to Bangladesh when the applicant was born. The applicant has no legal right to reside in Bangladesh. The applicant left Bangladesh for Malaysia in 2005.
c)The applicant’s parents moved to Bangladesh “to obtain a better quality of life”, but they have not “attained more rights”.
d)As a child the applicant was not able to attend the local school on “an ongoing basis”. The applicant attended school for a year then had a break and returned for a short period. The applicant’s father had to pay extra money to allow the applicant to attend.
e)At school the other students treated the applicant differently, and he never felt that he could fit in. The applicant and his family moved from village to village because the community never accepted them. The applicant could not continue his education so he worked with his father as a fisherman.
f)When the applicant was eighteen years old he opened a shop in the Bazaar. He rented a shop but it was very difficult to carry on business. The local authorities requested the applicant pay some money to continue his business, which the applicant believed was “levied upon” him because he was stateless. The applicant refused to pay the money because neighbouring shop owners were not required to pay this amount.
g)As a result four men came to the applicant’s shop, took away his property, and stabbed him with a knife. The men then ransacked the applicant’s shop. The applicant complained to the shop’s owner, who said he would “follow the matter up”. The following night, however, the same men came to the applicant’s house. The applicant was not home and the men attacked his parents and brother.
h)The next day the applicant’s mother told the applicant he must leave. As he was leaving the house, the applicant was stopped by the same men and again assaulted. The men were angry the applicant had asked his landlord “to seek retribution against them”. The applicant fled to Malaysia and never returned to Bangladesh.
i)In recent times the applicant’s family has had problems in Bangladesh. The applicant’s brother was “compelled to assist the Bangladesh National Party (BNP) prior to the most recent elections” because activists “made him feel afraid and as such he felt he had no option except to assist”. After the elections members of the Awami League came to the applicant’s family’s house and assaulted the applicant’s brother for his involvement with the BNP. The applicant’s family told the applicant they did not want to put up with the “abuse and injustice in Bangladesh”, and they indicated they wanted to flee to Malaysia. The applicant, however, has not heard from his family since they told him they were thinking of moving, and the applicant is worried about their safety.
j)While the applicant was living in Malaysia he was not afforded any rights due to his race and lack of documentation. The applicant was unable to obtain “registered work” and had to work casually for a number of different employers.
k)The applicant was harassed by a group of Malay Indian men who would stop the applicant and steal his money. Before he left Malaysia, the applicant was attacked by these men when he came home from work with his wages. The assailants knew the applicant was an easy target because he had no right to complain to the authorities because of the applicant’s statelessness. The applicant was extremely scared and knew he could not remain in Malaysia, so he made arrangements to flee to Australia.
On 21 April 2015 a delegate of the Minister refused to grant the applicant a Protection visa[2] and the applicant applied to the Tribunal for review on 30 April 2015.[3] Relevant to one of the matters the Tribunal considered is the event described by the delegate (data breach event) as follows:[4]
The department is aware that a report released on the department’s website that unintentionally enable potential access to some personal information about people in immigration detention on 31 January 2014. The information that was possible to access was his name, date of birth, nationality, gender, details about his detention (such as when, where and why (being unlawful)). There was no information regarding his PV claims or contact information
[2] CB87-116
[3] CB117-123
[4] CB111
Before the Tribunal
The applicant appeared before the Tribunal on 26 September 2016. On the same day, but before the hearing commenced, the applicant’s lawyers provided submissions to the Tribunal by email.[5] The applicant also provided to the Tribunal a letter from the Australian Red Cross, which summarised the actions taken by the Australian Red Cross to locate the applicant’s family in Malaysia and Indonesia and the result of that search.[6] The applicant’s representatives also provided to the Tribunal post-hearing submissions dated 3 October 2016[7] and a report from a counsellor, Mr H, dated 25 October 2016.[8]
[5] CB157-176
[6] CB175
[7] CB180-184
[8] CB185-187
Tribunal’s reasons
The Tribunal accepted that the applicant was born in Bangladesh and is Muslim; that his native language is Bengali;[9] that he was the owner of a fishmonger business and may have been subjected to extortion as a business owner;[10] and that the applicant has a brother who may be imputed with support for BNP.[11] The Tribunal, however, found that the applicant is a citizen of Bangladesh because it found that under the law of Bangladesh every person who is born in Bangladesh acquires citizenship at birth.[12] The Tribunal accepted the applicant spent eight years in Malaysia, but that the applicant had never been issued with a passport and, for that reason, he arrived in Malaysia unlawfully. The Tribunal therefore accepted the applicant has no rights of residence in Malaysia and, for that reason, the applicant is not precluded from Australia’s protection obligations by reason of s.36(3) of the Act.[13]
[9] CB206, [51]
[10] CB205, [48]
[11] CB205, [48]
[12] CB206, [51]
[13] CB206, [52]
The Tribunal, however, found some aspects of the applicant’s claims to be implausible, and others to be inconsistent and vague, which “raised concerns for the Tribunal in relation to his credibility and the accuracy of his claims”.[14] Immediately after it noted it had credibility concerns with the applicant the Tribunal said it was mindful of lapses in time and the difficulty the applicant would have recalling evidence; and that it took into consideration matters referred to in the Tribunal’s “Guidelines on the Assessment of Credibility”. [15]
[14] CB199, [30]
[15] CB199, [31]
The Tribunal also referred to “matters raised in the submissions of the applicant’s agent”. That is a reference to the post-hearing submissions and counsellor’s report to which I have referred in paragraph 5 of these reasons. In their post-hearing submissions the applicant’s representatives identified matters they submitted the Tribunal should take into account when assessing the applicant’s credibility. These included the applicant’s having been held in immigration detention for a prolonged period of time. In his report Mr H provided a psychological health assessment of the applicant. Mr H described the symptoms the applicant had reported to him during the two counselling sessions the applicant had with Mr H. The symptoms included low mood, poor concentration, and poor memory. Mr H stated that the applicant’s “capacity to be consistent and alert in interviews would also be compromised by his symptoms”.[16]
[16] CB187
After noting it had referred to the submissions of the applicant’s representatives, the Tribunal said:[17]
It accepts the information provided by the counsellor, Mr [H], whom he first consulted after the Tribunal hearing that the applicant may have been anxious and this may have affected his capacity his capacity to be consistent and alert at interviews. However, the numerous concerns of the Tribunal, inconsistencies with previous evidence and conflict with independent country information has overall led to a finding that the applicant was not a credible witness . . . .
[17] CB199, [31]
The concerns to which the Tribunal referred to in this passage, the inconsistencies the Tribunal found between the applicant’s evidence he gave to the Tribunal and his previous evidence, and inconsistencies the Tribunal found between the applicant’s evidence and independent country information, led the Tribunal not to accept the core elements of the applicant’s claims.
a)First, the Tribunal did not accept the applicant is a Rohingya, and, therefore, it did not accept the applicant suffered mistreatment and discrimination in Bangladesh because he is a stateless Rohingya.[18] The Tribunal relied on a number of matters: the applicant responded to the delegate’s question of what ethnic group the applicant belonged to by stating he was Bangladeshi;[19] the applicant was unable to provide evidence about the identity, language, or cultural heritage of the Rohingya;[20] the applicant did not, after he arrived in Australia, become involved with or seek assistance from any Rohingya organisations;[21] the applicant claimed his family were the only Rohingya people in the district in which he claimed the family had lived, but the Tribunal found it implausible that Rohingya would live in an area in isolation from other Rohingya when country information indicated a large number of Rohingya existed in or around the area of Cox bazaar and Chittagong;[22] the evidence the applicant gave to the Tribunal about the villages in which he had lived was different from the evidence he gave about that topic to the delegate;[23] the applicant’s evidence that his father purchased a boat and operated as a fisherman, and the applicant himself set up and conducted the business of a fishmonger over a number of years undermined the applicant’s claim that he and his family had no rights;[24] on the applicant’s evidence his landlord had taken action to protect the applicant by seeking retribution from those who attacked the applicant which suggested the applicant was not without rights or protection;[25] the applicant gave inconsistent evidence of the circumstances in which he decided to leave Bangladesh for Malaysia, stating to the Tribunal that it was his idea to travel to Malaysia, but in his entry interview stating that his father had sent the applicant to Malaysia;[26] and the applicant did not during his stay in Malaysia seek to register with the United Nations High Commissioner for Refugees.[27]
b)Second, the Tribunal did not accept the applicant was targeted as a shopkeeper because of his being a Rohingya.[28] The Tribunal relied on a number of matters. The Tribunal found the description of the attack on him at his shop that the applicant gave to the Tribunal was inconsistent with the description he gave in his written claims;[29] before the Tribunal the applicant said those who attacked him had political power, “both BNP and Awami League”, but in his entry interview, when asked whether the applicant had any problem with authorities in Bangladesh, the applicant said he lived very remotely and no one bothered him;[30] before the Tribunal the applicant said eight people attacked him whereas in his written claims the applicant said that four people attacked him;[31] before the Tribunal the applicant said that after the attack he went into hiding for two days on his boat and then went home, but in his written claims the applicant said he went home the following day;[32] and before the Tribunal the applicant said after he returned home and learned of the assault of the father and brother, the applicant’s mother told him to leave because it was not safe, and but when he left he was again assaulted by five people whose identity he did know, and who said nothing to him, but in his written claims the applicant said that he was stopped by the same men who had attacked him at his shop, and that they told the applicant they were angry that he asked his landlord to seek retribution against them.[33]
c)Third, the Tribunal was not satisfied the evidence the applicant gave of the events that led him to depart Malaysia were credible.[34] The applicant found that although the applicant claimed he experienced oppression and harassment over the period he resided in Malaysia, his evidence was lacking in details of actual events.[35]
d)Fourth, the Tribunal did not accept the applicant’s family fled Bangladesh due to their statelessness as Rohingya and harassment from the Awami League.[36]
[18] CB205, [49]
[19] CB199-200, [32]
[20] CB200, [33]
[21] CB200, [34]
[22] CB200-201, [35]
[23] CB201, [36]
[24] CB201-202, [37]
[25] CB201, [42]
[26] CB204, [43]
[27] CB204, [44]
[28] CB205, [49]
[29] CB202, [38]
[30] CB202, [39]
[31] CB203, [40]
[32] CB203, [41]
[33] CB203, [41]
[34] CB204, [45]
[35] CB204, [45]
[36] CB206, [50]
Although the Tribunal had concerns about the applicant’s evidence that his brother had been co-opted to assist the BNP with their election campaign, the Tribunal considered whether the applicant will suffer persecution because his brother would be an imputed BNP supporter;[37] but the Tribunal was not satisfied that if the applicant returns to Bangladesh there is a real chance he will face serious harm because of his imputed political opinion.[38] The Tribunal relied on the applicant’s evidence that neither his brother nor his parents had any relationship with the BNP, but instead the applicant’s brother was forced to carry out activities for the BNP; the applicant’s brother’s activities were “low level”; the applicant has never been involved in politics in Bangladesh, and the Tribunal was not satisfied the applicant engaged in any political activity in Australia; and, for these reasons, the applicant would have no adverse profile, for political or “other Convention-related reasons”, particularly having regard to his not being in the country since “1995”.[39]
[37] CB206, [53]-[54]
[38] CB207-208
[39] CB207, [54] That is an obvious error. I take the Tribunal to have intended to state “2005”.
The Tribunal also considered whether the applicant faced a real chance of harm because of the data breach, but concluded it was not so satisfied. The only information that was potentially disclosed was the applicant’s name, date of birth, nationality, and details about his detention.[40] The only risk to which the Tribunal considered such disclosure could conceivably give rise was the applicant’s being identified in Bangladesh as a failed asylum seeker. The question the Tribunal considered, therefore, was whether the applicant would face a risk of harm on the ground that he would be a failed asylum seeker. The Tribunal was not satisfied there was a real chance the applicant will be harmed because he may be recognised a failed asylum seeker. It relied on country information that showed that returnees to Bangladesh, including asylum seekers, who otherwise were not high profile persons who had engaged in political activity outside of Bangladesh, were not subjected to adverse attention according to whether they returned voluntarily or involuntarily.[41] The Tribunal also relied on the applicant’s evidence that he has never engaged in political activity.[42]
[40] CB207, [56]
[41] CB205, [47]
[42] CB207, [47]
Based on these findings the Tribunal concluded it did not accept that if the applicant returns to Bangladesh now or in the reasonably foreseeable future that there is a real chance he will face serious harm amounting to persecution “for reason of his ethnicity, his imputed political opinion or his membership of a particular social group of “imputed BNP supporters who are business owners” or “failed asylum seeker[s]”, or a combination of these reasons or any other past events”, and, therefore, found “the applicant’s fear of persecution is not well founded”.[43] Relying on findings it had already made, the Tribunal also did not accept there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Bangladesh there is a real risk the applicant would suffer significant harm as defined in s.36(2A) of the Act. The Tribunal, therefore, was not satisfied the applicant satisfied the criteria prescribed by s.36(2)(a) or s.36(2)(aa) of the Act.
[43] CB207-208, [57]
Judicial review hearing
At the hearing before me the applicant, who is not legally represented, informed me that he relied on the grounds set out in the application. He also said that he relied on a document titled “Outline of Submission” which he filed on 26 July 2018. In addition, the applicant relied on two documents that he tendered, and made submissions about the manner in which the Tribunal considered the data breach event.
Grounds of application
The grounds stated in the grounds of application are as follows (errors in original):
1. The Administrative Appeals Tribunal officer erred in law to come to a decision dismissing my application not finding that the Department of Immigration and Border Protection did not consider that I was a victim of persecution for my race (ethnic Rohingya) and as political belief as an activist of Bangladesh Nationalist Party (BNP) Party prior to my departure from Bangladesh
2. The Honorable Administrative Appeals Tribunal officer did not find that there was lack of procedural fairness in the decision of the Department of Immigration and Border Protection to consider that I was physically abused for my race ( ethnic Rohingya ) and my political belief and my life was at risk which forced me to leave Bangladesh for safety of my life. I was not accepted by Tribunal as a credible witness and refused my application.
3. The Administrative Appeals Tribunal Officer made error to find that the Department of Immigration and Border Protection failed to accept that the persecutions I experienced in Bangladesh and I shall be imprisoned and tortured if returned to Bangladesh. The Tribunal refused my claim on the ground that I am not a credible witness for my claims though I presented all relevant documents and evidences in support of my claims before the Tribunal prior to hearing.
4. The Administrative Appeal Tribunal officer erred in not finding that the DIBP erred in law amounting to jurisdictional error in finding that I do not have genuine fear of persecution for a convention reason and I do not meet the criteria set out in s 36(2) of Protection Visa.
5. The Administrative Appeals Tribunal officer erred in not finding that the DIBP refused my application on the ground that I would face punishment would be completely racial and politically motivated.
As noted by the Minister in his submissions, all of the grounds appear to be premised on the assumption that the Tribunal’s task when reviewing the delegate’s decision was to consider whether the delegate had properly reviewed the applicant’s claims. That assumption, however, is incorrect. When reviewing a Part 7 reviewable decision the:[44]
question for the determination of the Tribunal is not whether the decision which the decision-maker made was the correct or preferable one on the material before him. The question for the determination of the Tribunal is whether that decision was the correct or preferable one on the material before the Tribunal.
[44] Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 589. The comments in this case were directed to the functions of the Administrative Appeals Tribunal. The Full Federal Court in Minister for Immigration & Multicultural Affairs v Anthonypillai [2001] FCA 274 at [69] and [70] (Heerey, Goldberg and Weinberg JJ) said this passage accurately describes the review the Refugee Review Tribunal was required to undertake by s.414(1) of the Act.
For this reason alone, each of the grounds stated in the application fails. The Minister in his written submissions, however, has interpreted the matters it is claimed the delegate did or did not do to be directed to what the Tribunal did or did not do. I will consider each of the grounds on that assumption.
Ground 1 assumes as a fact that the applicant is an ethnic Rohingya. Whether or not the applicant is in fact a Rohingya is one of the matters the Tribunal considered to be an issue in the review. Ground 1, in effect, claims the Tribunal failed to consider or properly to consider that the applicant is a Rohingya.
So understood, the ground cannot be made out. As is apparent from its reasons for decision the Tribunal asked the applicant extensive questions about the applicant’s claims that he is a Rohingya, and it considered in some detail whether the applicant was a Rohingya; and, for the reasons it gave the Tribunal was not satisfied the applicant is a Rohingya. It was reasonably open to the Tribunal not to be satisfied the applicant is a Rohingya for the reasons the Tribunal gave.
A final matter to note about ground 1 is that it assumes the applicant made a claim based on his being an activist for the BNP. No such claim was before the Tribunal. The claim that was before the Tribunal was the applicant’s fearing harm on the basis of his being imputed with a political opinion because of the applicant’s brother’s activities with the BNP. Ground 1, therefore, discloses no jurisdictional error by the Tribunal.
Like ground 1, ground 2 assumes the applicant is a Rohingya and may be taken to be repeating the claim made in ground 1 that the Tribunal did not consider the applicant’s claim based on his being Rohingya and his political beliefs, but also to claim it was not open to the Tribunal not to accept the applicant to be a credible witness. As I have already concluded in relation to ground 1, the Tribunal did consider the applicant’s claim he is a Rohingya and, for reasons that were open to it, did not accept that claim. As for the Tribunal’s not accepting the applicant was a credible witness, my summary of the Tribunal’s reasons identify the matters on which the Tribunal relied for not accepting the applicant was a credible witness. These were matters on which it was reasonably open to the Tribunal to rely in assessing the applicant’s credibility and in not accepting, on the basis of those matters, that the applicant was a credible witness.
Ground 3 claims the Tribunal failed to accept that the applicant experienced “the persecutions in Bangladesh” he claimed he experienced, that he will be imprisoned and tortured if he returns to Bangladesh, and that the Tribunal failed to accept these claims on the ground the applicant is not a credible witness. Ground 3, therefore, appears to be directed to the Tribunal’s not accepting the applicant was a credible witness. As I have already found, it was reasonably open to the Tribunal, for the reasons it gave, not to accept the applicant was a credible witness. Ground 3, therefore, fails.
Ground 4 claims the Tribunal erred in not finding the applicant had a genuine fear of persecution for a Convention reason, and that he did not meet the criteria for the granting of a Protection visa. This ground in substance goes no further than expressing disagreement with the Tribunal’s conclusion that the applicant did not meet the criteria for the granting of a Protection visa. That is an invitation to merits review for which this Court has no jurisdiction to undertake. In any event, it was reasonably open to the Tribunal not to accept the applicant met the criteria for the grant of a Protection visa for the reasons it gave. Ground 4, therefore, fails.
Ground 5 claims the Tribunal erred in not finding the applicant would face punishment in Bangladesh because of his race and political opinion. Again, in substance this ground goes no further than expressing disagreement with the Tribunal’s conclusion that the applicant did not meet the criteria for the granting of a Protection visa. As I have already found, it was reasonably open to the Tribunal not to accept the applicant met the criteria for the grant of a Protection visa for the reasons it gave. Ground 5, therefore, fails.
Grounds stated in “Outline of Submission”
The “Outline of Submission” (OS) makes a number of claims. The first takes issue with the Tribunal’s finding that the applicant is a citizen of Bangladesh. The OS states the applicant never told anyone he was a citizen of Bangladesh; that neither “the Department” nor the Tribunal made any inquiry “in detail” about the applicant’s citizenship status; that thousands of Rohingya are living in Bangladesh “without any status of Nationality and many of them are born in Bangladesh”; the applicant’s father was not a citizen of Bangladesh when the applicant was born; and the Tribunal concluded that because of the applicant’s “vague and changing comments” the Tribunal did not believe the applicant is Rohingya and his parents are Rohingya and come from Myanmar.
These statements go no further than expressing disagreement with the Tribunal’s conclusion that the applicant is a Bangladeshi citizen, and with the Tribunal’s not accepting the applicant to be a witness of credit, and for these reasons invites merits review. The statements, therefore, do not disclose any jurisdictional error by the Tribunal.
The second claim in the OS is that the Tribunal did not conduct the hearing before it “freely or fairly”. The OS makes a number of claims: at the time of the hearing the applicant “was completely confused, nervious [sic] and distressed”; the hearing “was conducted in a very tense situation”; the “Tribunal [sic] test for the applicant’s demeanour as a witness was harsh”; the applicant had a “legitimate expectation that hearing would be conducted in judicial environment”; the “interpreter did not tell the applicant whole things what the Tribunal member is saying and what the Tribunal member wanted to know”; the Tribunal “made the opinion before completion of full hearing”; the Tribunal was “more concerned about the credibility rather than knowledge and ability of applicant to participate in the hearing”; the applicant was denied procedural fairness when the Tribunal “conducted hearing without knowing the mental condition of the applicant”; and the applicant provided “all the evidence of his mental condition to his his Migration Agent but the Migration Agent did not submit all the Medical reports to the Tribunal before the hearing”; the applicant was “nervious [sic] and what is going on in hearing it was beyond his imagination”; the applicant was “menatally [sic] unable to respond” to questions about “the period of supporting the BNP”; the “design of Tribunal’s questioning was more like a Police interview”; the Tribunal made a decision “on assumption and concluded that the applicant’s political involvement was very limited”; the Tribunal’s findings that the “applicant fabricated claims for political involvement with the BNP” was unreasonable, and that the Tribunal’s “doubts over the applicant’s association with BNP was based on unreasonable assumption”; and that the Tribunal asked the applicant several questions about his affiliation and motivation for joining the BNP.
This part of the OS may be taken to make five assertions. The first is that the applicant’s mental state was such that it significantly impaired his ability to understand and effectively participate in the hearing before the Tribunal.
The Tribunal will make a jurisdictional error if an applicant participates at a hearing before it while labouring under a medical or mental condition that has the effect of denying the applicant a real and meaningful opportunity to give evidence and present submissions.[45] The Tribunal will make a jurisdictional error in these circumstances even if the Tribunal is unaware or could not reasonably have become aware that the applicant was labouring under such medical or mental condition. The reason why that is so was explained by the Full Federal Court in Minister for Immigration & Multicultural & Indigenous Affairs v SCAR:[46]
On the other hand, it is also clear that s 425 of the Act imposes an objective requirement on the Tribunal. The statutory obligation upon the Tribunal to provide a ‘real and meaningful’ invitation exists whether or not the Tribunal is aware of the actual circumstances which would defeat that obligation. Circumstances where it has been held that the obligations imposed by s 425 of the Act have been breached include circumstances where an invitation was given but the applicant was unable to attend because of ill health: Applicant NAHF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 140. They also include circumstances where the statements made by the Tribunal prior to the hearing have misled the applicant as to the issues likely to arise before the Tribunal: VBAB of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 804. They also include circumstances where the fact or event resulting in unfairness was not realised by the Tribunal. For example, circumstances such as where the applicant was invited to attend and did attend before the Tribunal, but was effectively precluded from taking part because he could not speak English and a translator was not provided or was inadequate: Tobasi v Minister for Immigration and Multicultural Affairs [2002] FCA 1050; W284 v Minister for Immigration and Multicultural Affairs [2001] FCA 1788.
[45] I repeat here what I said in AYU15 v Minister for Immigration & Anor (No.2) [2016] FCCA 2309, at [18]-[19]
[46] Minister for Immigration & Multicultural & Indigenous Affairs v SCAR [2003] FCAFC 126; (2003) 128 FCR 553 at [37]
There is some uncertainty about the degree of incapacity resulting from an applicant’s medical or mental condition that must be demonstrated before it may be concluded the applicant was not given a real and meaningful opportunity to give evidence and present arguments. Flick J reviewed the authorities in SZQBN v Minister for Immigration and Border Protection.[47] His Honour referred[48] to Minister for Immigration and Citizenship v SZNCR where Tracey J said that “an applicant who has a diagnosed mental impairment which does not render him or her “entirely unfit”.[49] Flick J said, however, that Tracey J should not be taken “as setting forth the only circumstances in which the opportunity guaranteed by s 425 may be denied”.[50] His Honour further said that a “claimant falling short of being “unable” to give evidence and present argument may, in an appropriate case, nevertheless also be denied a meaningful opportunity to be heard”.[51]
[47] [2014] FCA 686
[48] [2014] FCA 686, at [46]
[49] [2011] FCA 369, at [40]
[50] [2014] FCA 686, at [46]
[51] [2014] FCA 686, at [46]
As I noted earlier in these reasons, after the hearing the applicant’s representative provided to the Tribunal a psychological health assessment of the applicant prepared by Mr H. Although the report identified a number of mental health issues, Mr H did not express any opinion that the issues he identified were such as to have prevented the applicant from having meaningfully participated in the hearing or in otherwise having impaired his ability to participate in the hearing. Further, the report lists symptoms reported to him by the applicant – difficulty in sleeping due to ongoing impact of traumatic events in Bangladesh, nightmares almost every night where he feels panicked and attacked; low mood and energy; poor concentration; poor memory; intrusive thoughts and images; generalised anxiety and fearfulness; feelings of anguish and hopelessness over the continuing lack of knowledge about what happened to his family; the applicant can function at work so long as he remains busy, but “his symptoms start to impact on his mood and energy”; and that the applicant’s symptoms compromise the applicant’s capacity to be consistent and alert in interviews. Mr H’s report was prepared on the basis of two consulting sessions with the applicant, in October 2016, being after the hearing before the Tribunal that occurred on 26 September 2016. Mr H, however, does not refer to the applicant having said anything about his mental state during the hearing before the Tribunal.
As I have also already noted, the Tribunal referred to Mr H’s report, and I am satisfied it considered it and took it into account when assessing the applicant’s credibility. There was nothing before the Tribunal that ought reasonably to have suggested to the Tribunal that the applicant was in no position to participate meaningfully in the hearing; and there is no evidence before me that is capable of supporting a finding that the applicant suffered from mental health conditions that prevented him from meaningfully participating in the hearing before the Tribunal.
The second assertion this part of the OS may be taken to make is that the applicant’s representative did not provide to the Tribunal all the medical evidence the applicant had provided to his representative. At the hearing before me, the applicant tendered a report dated 2 September 2015 by a psychologist, Ms B. I did not admit that document into evidence because Ms Hooper, who appeared for the Minister, objected to the letter being admitted into evidence on the grounds of relevance. I marked the letter “MFI2”. Ms B expresses the opinion that the applicant is severely depressed, having reported symptoms of depressions, these being fleeting thoughts of death, some weight loss, memory and concentration difficulties, loss of enjoyment in activities and low motivation and energy. The letter requests that the applicant’s visa application be processed quickly, that an interpreter be used when interviewed, that it should be borne in mind that the applicant suffers “some memory and concentration difficulties and may not recall important dates accurately”.
From the bar table the applicant said he had given MFI2 to his representative in the expectation that his representative would provide it to the Tribunal. Ms Hooper was prepared to accept this as true. On that assumption, no jurisdictional error arises. First, there is no suggestion of fraud. Second, I am not prepared to infer that the representative failed to give MFI2 to the Tribunal through inadvertence. The more natural inference is that the representative decided to provide to the Tribunal a contemporary report on the applicant’s mental health, and that the representative did so by submitting to the Tribunal Mr H’s report.
The third assertion this part of the OS may be taken to make is that the Tribunal had predetermined the applicant’s case. There is nothing in the evidence before me that is capable of suggesting actual or apprehended bias by the Tribunal.
The fourth assertion this part of the OS may be taken to make is that the Tribunal asked questions and otherwise conducted the hearing unfairly. This claim is difficult to assess without a transcript of the hearing before the Tribunal. There is, however, the evidence of the Tribunal’s reasons for decision; and it is the case that the applicant’s representative appeared at the hearing before the Tribunal and, after the hearing, the representative made submissions to the Tribunal where nothing is said about the manner in which the Tribunal conducted the hearing. In those circumstances there is nothing before me that could suggest the Tribunal conducted the hearing unfairly.
The fifth assertion this part of the OS may be taken to make relates to what the OS asserts were claims the applicant made based on his affiliation with the BNP. As I have already noted, however, the applicant made no claim based on his having any affiliation with the BNP.
None of the assertions comprising the second claim made in the OS, therefore, discloses any jurisdictional error by the Tribunal.
The third claim made in the OS is that the Tribunal’s findings and reasons are confused, and the Tribunal failed to apply or correctly apply the “test for persecution”, or the correct test in relation to complementary protection. There is no basis for this claim. The Tribunal set out the relevant principles at the beginning of its reasons in a manner that manifests no misunderstanding.[52] The third claim made in the OS, therefore, discloses no jurisdictional error made by the Tribunal.
[52] CB195-197, [7]-[20]
The fourth claim made in the OS is that the “Tribunal acted without jurisdiction or in excess of jurisdiction when it failed to take into account relevant considerations”. That by itself discloses no jurisdictional error because it does not identify the considerations it claims the Tribunal failed to take into account.
The fifth claim made in the OS is that the applicant “fears serious harm in Bangladesh on the Conventional grounds of his actual or imputed political opinion in favour of the Bangladesh National Party and against the Awami League Party which has formed the government in Bangladesh”. This is an appeal to the merits of the applicant’s claims and, for that reason, discloses no jurisdictional error by the Tribunal.
The sixth claim made in the OS is that “the applicant categorically claimed about his and his brothers association and activities with BNP”; that the “Tribunal asked many unreasonable and irrelevant questions with regards to affiliation with the BNP party”, and the “Tribunal failed to understand the common practice of a party workers involved in Bangladeshi Politics”. This part of the OS does not identify the questions it is said the Tribunal asked and which it is claimed were unreasonable or irrelevant, and for that reason alone discloses no jurisdictional error by the Tribunal. The claim that the Tribunal failed to understand the common practice of party workers involved in Bangladeshi politics is an appeal to the merits of the applicant’s claims and discloses no jurisdictional error by the Tribunal.
The seventh and final claim the OS makes is the Tribunal “did not follow Rules of Real Risk test of persecution and harm”. There is no basis to this claim. The Tribunal referred to the meaning of the “real chance test”, noting that it is a chance “that is not remote or insubstantial or a far-fetched possibility”, and that a person “can have a well-founded fear of persecution even though the possibility of persecution occurring is well below 50 per cent”.[53] There is no error in this statement of the “real chance test”, and there is nothing to suggest the Tribunal did not understand the test it stated or that it misapplied it.
[53] CB196, [14]
Submissions at judicial review hearing
At the hearing the applicant addressed three matters. One was his tendering MFI2, and there is nothing further I need to say about that.
The second matter was the applicant tendering what he claimed to be a document issued by authorities in Italy showing that the applicant’s brother had been granted asylum in Italy. I marked the document “MFI3”. The relevance the applicant attached to the document was to show that, like his brother, the Tribunal ought to have accepted the applicant’s claims for protection. MFI3, which is in Italian, was not before the Tribunal. Even if, therefore, MFI3 did show the applicant’s brother had been granted refugee status, it would be irrelevant to whether the Tribunal made any jurisdictional error.
The third matter the applicant referred to in the hearing concerned the data breach event. The applicant read a letter from the Department of Immigration and Border Protection (Department) written in Bangla that was interpreted.[54] It is the letter by which the Department informed the applicant of the data breach event and of the possibility that data relating to him may have been disclosed. The applicant submitted the Tribunal did not properly consider the risk of harm he faced as a result of the data breach.
[54] I marked the letter “MFI4”.
I do not accept this submission. The Tribunal raised with the applicant the potential harm he may face if he were to return to Bangladesh, assuming that information relating to the applicant had been accessed by others; and the Tribunal considered whether the applicant would face a risk of harm as a consequence of his data having been accessed. As I have already noted, the Tribunal considered that the only conceivable risk of harm to which the data breach event could give rise was the applicant’s being recognised as a failed asylum seeker; and, given the applicant engaged in no political activity, and relying on country information, the Tribunal found that the applicant would not face a risk of harm on account of his being a failed asylum seeker. It was reasonably open to the Tribunal to assess that the risk to which the data breach gave rise was the applicant’s being recognised as a failed asylum seeker, and to conclude, for the reasons it gave, that the applicant faces no real risk of significant harm on account of his being a failed asylum seeker. This part of the applicant’s claims, therefore, also fails.
Conclusion
The applicant succeeded on none of the grounds stated in the application, in the OS, or which the applicant submitted before me at the hearing. I propose, therefore, to order that the application be dismissed.
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Date: 16 August 2018
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