DUT18 v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 1294
•29 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DUT18 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1294
File number(s): SYG 2039 of 2018 Judgment of: JUDGE LAING Date of judgment: 29 November 2024 Catchwords: MIGRATION – application for judicial review of a decision by the Administrative Appeals Tribunal – whether the Tribunal failed to consider the situation into the reasonably foreseeable future – whether the Tribunal erred in failing to apply the “what if I’m wrong” test – whether the Tribunal erred in assessing complementary protection – whether the Tribunal failed to consider the applicant’s claims or evidence – allegation of bias – application dismissed Legislation: Migration Act 1958 (Cth) ss 36, 45AA & 476
Migration Regulations 1994 (Cth) r 2.08F
Cases cited: ALD16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1286
Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; (2003) 216 CLR 473
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593
Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337
Minister for Immigration & Multicultural Affairs v Rajalingam [1999] FCA 719; (1999) 93 FCR 220
Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507
MZXSA v Minister for Immigration and Citizenship [2010] FCAFC 123; (2010) 117 ALD 441
VBAO v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 60; (2006) 231 ALR 544; (2006) 81 ALJR 475
VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872; (2003) 131 FCR 102
Division: General Number of paragraphs: 60 Date of hearing: 19 August & 18 November 2024 Place: Sydney Appearing for the Applicant: In person Solicitor for the First Respondent: Mr M Sheedy of Sparke Helmore Lawyers Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 2039 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DUT18
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LAING
DATE OF ORDER:
29 NOVEMBER 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 (as it was). The Tribunal affirmed a decision of a delegate (Delegate) of the first respondent (Minister) refusing to grant the applicant a Temporary Protection (Class XD) visa.
For the following reasons, the application must be dismissed.
BACKGROUND
The applicant is a citizen of Bangladesh who arrived in Australia in 2013. The applicant applied for a Protection (Class XA) visa on 8 July 2013. However, from 16 December 2014 the application was taken to be, and to have always been, an application for a Temporary Protection (Class XD) visa: s 45AA of the Migration Act 1958 (Cth) (Act) and r 2.08F of the Migration Regulations 1994 (Cth).
On 4 September 2015, the Delegate refused the application.
The applicant applied to the Tribunal for review of the Delegate’s decision on 21 September 2015. On 5 June 2018, the applicant attended a hearing before the Tribunal.
On 28 June 2018, the Tribunal affirmed the Delegate’s decision.
THE TRIBUNAL’S DECISION
The Tribunal accepted certain information regarding the applicant’s identity, prior residence and travel history (at [24]-[28]).
The Tribunal accepted country information indicating that the security situation in Bangladesh was “volatile”, that there was sometimes politically motivated violence there and often clashes between members and supporters of rival parties and between party supporters and law enforcement agencies. The Tribunal accepted that under the Awami League government, senior members of the BNP faced a high risk of politically motivated arrest and violence (at [23]).
However, the Tribunal found that the applicant was not a credible witness. At [29]-[30] of its decision, the Tribunal reasoned:
29.The Tribunal does not accept as true however that the applicant left his country and cannot return there for the reasons that he claims, including because he supports the BNP. It does not accept as true that the applicant feared or fears harm in his country, or cannot return to his country, for the reasons that he claims, including his claim that Awami League members/supporters are looking for him to harm him, that a charge or complaint has been made against him by the Awami League and that police came to his home looking for him, and/or that on return to Bangladesh he could face charges/false charges, including charges in relation to the “business of drugs”. The Tribunal does not accept as true that the applicant was, or will be, threatened, ill treated and/or harmed in his country, or that the applicant went into hiding at any time in his country to avoid harm there, for the reasons that he claims.
30.In assessing the applicant’s credibility about his claims the Tribunal has taken into account the information in his protection visa application that he has limited formal education, and his evidence at the hearing that he is not educated, but this does not answer the Tribunal’s concerns about the unreliability of the applicant’s evidence.
The Tribunal did not accept the applicant’s claims to be an active BNP supporter, or that he attended the BNP rallies or meetings in his village as claimed. The Tribunal also did not accept that there were clashes and fights between political parties in his village over the applicant, or that Awami League supporters were looking to harm him, had attacked him, injured him or caused a charge or complaint to be made against him. The Tribunal did not accept that the applicant was in hiding in his village or that he had left his village in 2006 for the reasons claimed (at [31] and [34]).
In making the above findings, the Tribunal considered the applicant’s answers to its questions regarding the BNP to be “very general” and found that the applicant had changed his evidence during questioning in response to the Tribunal’s concerns. The Tribunal also considered that there were inconsistencies in the applicant’s evidence to the Tribunal and in what he told the Tribunal in contrast to his written claims. The Tribunal was further concerned that the applicant had not provided corroborative evidence regarding the charge or complaint that he suggested may have been made against him (at [32]-[33]).
The Tribunal did not accept that the applicant moved to Chittagong to avoid harm in his village or that he was in hiding at any time in Chittagong. The Tribunal found it difficult to accept the applicant’s claim to have been “in hiding” when he was working in Chittagong. The Tribunal found that the applicant was living and working full time in Chittagong without difficulties for about five to six years before leaving in 2012. The Tribunal did not consider this to be consistent with his claims that there was a case filed against him and that people from the Awami League were searching for him (at [35]-[37]).
The Tribunal found the applicant’s evidence regarding his time in India and Indonesia to be “evasive” and unsatisfactory. In so finding, the Tribunal set out (at [38]-[39]) the limited answers the applicant had given to questions regarding his time in those countries.
Although the Tribunal accepted that the applicant knew about some BNP activities in Australia, the Tribunal did not accept that he had attended BNP events whilst staying in Australia. The Tribunal observed that the applicant had been uncertain as to when events had taken place. The Tribunal did not accept that “memory problems” accounted for the difficulties in the applicant’s evidence. This was in the absence of medical evidence and noting that the applicant had told the Tribunal that he could remember other things from his past (at [40]-[41]).
The Tribunal found that the applicant was not a member of the BNP, noting that the applicant had told the Tribunal this at hearing. Although the Tribunal accepted that the applicant preferred the BNP to the Awami League, it found that he had not been, and would not be, an active supporter of the BNP. The Tribunal found that the applicant would not be involved with the BNP or BNP activities if he returned to Bangladesh. The Tribunal did not accept that the applicant had not been involved with the BNP in Chittagong whilst he was there for around 6 years due to his claimed fear of Awami League supporters (at [42]).
Having regard to the above, the Tribunal found that the applicant was unable to meet s 36(2)(a) or (aa) of the Act. Accordingly, the Tribunal affirmed the Delegate’s decision (at [43]-[48]).
PROCEEDINGS BEFORE THIS COURT
The applicant commenced the current proceedings through an application filed on 23 July 2018. He ultimately relied upon an amended application filed on 24 September 2018 containing the following grounds:
First ground
1.The Administrative Appeals Tribunal (the "Tribunal said "The Tribunal accepts that there is independent country information available which indicates that the security situation in Bangladesh is volatile, that there is sometimes politically motivated violence there and that there are often clashes between members and supporters of rival parties and law enforcement agencies. The Tribunal also accepts that under the current Awami League government senior members of the BNP face a high risk of politically motivated arrest and violence both from security forces ruling party activists: see DFAT Country Information Reports, Bangladesh, 2 February 2018, 5 July 2016, 20 October 2014"at [para 23]. However, the DFAT reports do not follow that the political and human rights situation will improve or satisfactory.
Particulars
a)The DFAT Country Information Report Bangladesh 2 February 2018 said "The security in Bangladesh is volatile and can deteriorate quickly with little warning. Security threats include politically-motivated violence, particularly ahead of the next nation elections in late 2018 or early 2019" at [2.29].
b)Where political situation in a country is 'fluid', political developments concerning human rights and civil rights can move in different direction, including backwards (by deteriorating of the political situation in Hungary and Poland in recent years.
c)Human Rights Watch World Report 2018 states "Bangladesh security forces-particularly the Detective Branch of the police, Bangladesh Border Guards (BGP), the Directorate General Forces Inspectorate (DGFI), and the Rapid Action Battalion (RAB)-have a long history of enjoying impunity for serious violations including arbitrary arrests, torture, enforced disappearances, and extra judicial killings, a pattern that did not abate in 2017. Law enforcement authorities continued to arrest opposition activities and militant suspects, holding them in secret detention for long periods before producing some in court. Several others, according to security forces, were killed in "gunfights," leading to concerns over extrajudicial killings. At time of writing, scores remained victims of enforced disappearances.
d)In circumstances where the political and security situation in a country is fluid, it is important for the decision maker to consider the situation for the applicant into the reasonably foreseeable future. The delegate's findings do not clearly address the reasonably foreseeable future and did not apply the real chance test as explained in Minister v Wu Shan Liang.
e)Failure to consider this information by the Tribunal in its review is a jurisdictional error.
Second Ground
2.In Minister v Rajalingam (1999) 93 FCR 220 Sackville J states at [60], [62], [63] and [67]:
[60] It follows from the observations of the High Court in Wu Shan Liang and Guo that there are circumstances in which the RRT must take into account the possibility that alleged past events occurred even though it finds that those events probably did not occur ... The RRT must not foreclose reasonable speculation about the chances of the hypothetical future event occurring. [63] ... In the language of s 476(1)(e) of the Migration Act 1958, a failure to do so may constitute: an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found".
Particulars
a)Tribunal said "While the Tribunal accepts that the applicant knows about some BNP activities that take place /have taken place in Australia, for example the protest against the Awami League leader when she visited Australia, the Tribunal does not accept that the applicant has attended BNP events while he has been staying in Australia ... " at [para 40].
b)The Tribunal was obliged to take into account the possibility that the applicant was imputed as an BNP supporter or as a person with BNP links before he left Bangaldesh in the background of DFAT Country Information Reports Bangladesh and the independent country reports. If the Tribunal had taken this possibility into account, it may have affected the Tribunal's assessment of whether the applicant faces a real chance of persecution on his return to Bangladesh.
c)The applicant stated that the harm he would face if he were to return to Bangladesh is due to the essential and significant reasons of his real or imputed political opinion as supporter of BNP and is motivated and deliberate conduct of his persecutors and it amounts to systematic and discriminative conduct: see Ram v MIEA (1997) 190 CLR 225; and MIMA v Haji Ibrahim (2000) 204 CLR 1 at [95]. The Tribunal failed to consider this which was a jurisdictional error.
Third Ground
3.The Tribunal, at paragraphs [36] to [37], makes further findings concerning whether the applicant faces a real risk of suffering "significant harm" which findings address various terms used in s 36(2A). However, on a fair reading of the Tribunal's decision:
a)The Tribunal did not properly deal with the significant harm in considering the applicant's claim for a protection visa on the complementary protection ground.
b)Where the Tribunal fails to deal with a claim expressly articulated by an applicant, this is a jurisdictional error: NABE v Minister (2004) 144 FCR 1 at [55] to [63].
Fourth Ground
4.Tribunal said "While the Tribunal accepts that the applicant knows about some BNP activities that take place /have taken place in Australia, for example the protest against the Awami League leader when she visited Australia, the Tribunal does not accept that the applicant has attended BNP events while he has been staying in Australia ... " at [para 40] In the circumstances, an issue for the Tribunal to determine was:
a)whether the applicant would continue to engage in political activities if required to return to Bangladesh and, if so, whether he faced a real risk of persecution or significant harm as a result; or
b)whether the applicant would be dissuaded from re-engaging in political activities if required to return to Bangladesh because of his fear of persecution or significant harm.
c)The Tribunal failed to deal with this aspect of the applicant's claims, which is a jurisdictional error.
Fifth Ground
5.The said reviewer Ms Christine Long's state of mind so committed to a conclusion already formed as to be incapable of alteration, despite the evidence and statements amde by the applicant stating as implausible every claim that there is a real chance of risk that the applicant would be subjected to serious or significant harm on his return to Bangladesh.
Particulars
a)Assessing the credibility of past and present events is an important aspect of assessing a claim, because the referred-applicant was already being subjected to persecution and torture and serious harm makes it clear that this will be a serious indication of a well-founded fear of persecution or real risk of suffering serious harm, unless there is good reason to believe that such ill-treatment will not be repeated. The available overwhelming country information of Bangladesh human rights situation does not support such torture and ill-treatment will not be repeated by his persecutors to the applicant. This was a jurisdictional error.
b)The said Tribunal Member failed to appreciate the level of proof needed to establish the material facts is relatively low one-a reasonable degree of likelihood-and must be borne in mind throughout the process. It is low because of what is potentially at stake -the individual's life or liberty-because asylum seekers are unlikely to be able to compile and carry dossiers of evidence out of the country of persecution.
c)However, the Tribunal Member said "In assessing the applicant's credibility about his claims the Tribunal has taken into account the information in his protection visa application that he has limited formal education, and his evidence at the hearing that he is not educated, but this does not answer the Tribunal's concerns about the unreliability of the applicant's evidence" at [para 30].
d)The delegate also said "I am mindful that the applicant claims to be illiterate and to have received only two years of formal education. I am equally mindful that he claims to have only been involved with the party for a few months .... " and also said " I do accept that the applicant has been a low level BNP supporter of in his village at [page 12] of the delegates decision dated 4 September 2015.
e)Contrary to the said findings of the delegate the Tribunal Member said "The Tribunal does not accept as true that the applicant was an active BNP supporter, or that he attended the BVNP rallies /meetings in his village that he claims ... " at [34].
f)A fair reading of the Tribunal Member's assessment indicates that she needs to be 'certain', 'convinced', or even 'satisfied' of the truth of the account-that sets too high a standard of proof. See in reviewing material facts, the Court of Appeal judgement in Karanakaran v Secretary of State for the Home Department [2000] EWCA Civl 1 (25 January 2000).
g)The Tribunal Member should have found that the delegate's assessment indicates that she needs to be 'certain', 'convinced', or even 'satisfied' of the truth of the account-that sets too high a standard of proof. See in reviewing material facts, the Court of Appeal judgement in Karanakaran v Secretary of State for the Home Department [2000] EWCA Civ 11 (25 January 2000).
h)Caseworkers (delegates) must take into account any personal factors which may explain why a claimant's testimony might be inconsistent with other evidence, lacking in detail, or there has been late disclosure of evidence. These factors may include (the list is not exhaustive): age, gender; variations in the capacity of human memory; physical and mental health; emotional trauma; lack of education; social status and cultural traditions; feeling of shame; painful memories, particularly those of a sexual nature.
Ground 1
Ground 1 contended that the Delegate's findings did not clearly address the reasonably foreseeable future and did not apply the real chance test. This was by reference to the country information indicating fluidity in the political and security situation. The applicant contended that the Tribunal failed to consider this information.
As was explained at the hearing of this matter, this Court has no jurisdiction to review the Delegate’s decision: s 476 of the Act. The Tribunal’s role in relation to the Delegate’s decision was one of merits review. That is, the Tribunal role was not to critique the approach taken by the Delegate, but to determine whether or not the applicant met the criteria for the visa.
In performing this exercise, the Tribunal was required to be satisfied of whether the applicant had a genuine fear founded upon a “real chance” of persecution: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at [3] (Brennan CJ, Toohey, McHugh and Gummow JJ). The Tribunal was required to assess the chance of harm by reference to the reasonably foreseeable future: VBAO v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 60; (2006) 231 ALR 544; (2006) 81 ALJR 475 at [2] (Gleeson CJ and Kirby J).
I accept the Minister’s submission that the Tribunal did so in the present case. In doing so, the Tribunal accepted that country information indicated that the situation was volatile. The Tribunal accepted that there was politically motivated violence and clashes between members and supporters of rival parties and between party supporters and law enforcement agencies. The Tribunal accepted that under the Awami League government, senior members of the BNP faced a high risk of politically motivated arrest and violence (at [23]). However, notwithstanding this information, the Tribunal found that the applicant did not have a genuine fear founded upon a real chance of persecution “either now or in the reasonably foreseeable future” (at [43]). In relation to the complementary protection criterion, the Tribunal found that there were not substantial grounds for believing that, as a necessary and “foreseeable” consequence of his being removed from Australia to Bangladesh, there was a real risk that the applicant would suffer significant harm (at [44]). The Tribunal therefore expressly considered the applicant’s situation against the relevant criteria by reference to the reasonably foreseeable future.
It was open to the Tribunal to make these findings notwithstanding the volatility it had identified in the situation. Such volatility did not necessitate a conclusion that the applicant faced a real chance of relevant harm in the reasonably foreseeable future. What the Tribunal was required to do was assess the applicant’s personal circumstances in relation to the country information. That is what the Tribunal did. The Tribunal did not accept, having regard to what it had accepted in relation to the country situation, that the applicant faced a real chance of relevant harm. This was by reference to its rejection of the applicant’s claims regarding his political profile and involvement, based upon credibility grounds.
To the extent that the applicant contended that the Tribunal failed to consider relevant country information, it has not been established that such an inference ought to be drawn. As the Minister submitted, it has not been demonstrated that the applicant brought the “Human Rights Watch World Report 2018” to the Tribunal’s attention or made any submissions in relation to it. In any event, even if the report was before the Tribunal, it has not been demonstrated that the report was not considered by the Tribunal. The Tribunal was not required to refer to every piece of evidence that was before it. The Tribunal’s findings were not inconsistent with the report, which is said to have indicated some risk of violence from armed forces, particularly by reference to opposition activists and militant suspects, neither of which the Tribunal found the applicant to be.
It follows that ground 1 is unable to succeed.
Ground 2
Ground 2 appeared to contend, essentially, that the Tribunal failed to apply the “what if I’m wrong” test considered in cases such as Minister for Immigration & Multicultural Affairs v Rajalingam [1999] FCA 719; (1999) 93 FCR 220.
The Tribunal was not obliged to ask this question, however, if “no real doubt” attended the Tribunal’s conclusions: MZXSA v Minister for Immigration and Citizenship [2010] FCAFC 123; (2010) 117 ALD 441 at [95]-[96] (Keane CJ, Perram and Yates JJ).
I accept the Minister’s submission that the Tribunal’s findings in this case were unequivocal. The Tribunal did “not accept as true” that the applicant was an active BNP supporter, or his associated claims. The Tribunal did not accept that the applicant engaged (or would engage) in BNP related activities in Bangladesh as he had claimed. Similarly, the Tribunal did not accept that the applicant had engaged in BNP related activities (as he had claimed) in Australia. The Tribunal therefore did not accept that the applicant had undertaken any of the activities said to give rise to an imputed political opinion or profile. No doubt was expressed in the Tribunal’s rejection of these claims.
The Tribunal was therefore not obliged to apply the “what if I’m wrong” test in the circumstances of this case.
Ground 2 is therefore unable to succeed.
Ground 3
Ground 3 contended that the Tribunal did not properly deal with the question of whether the applicant may face significant harm in assessing complementary protection. Reference was also made to a failure to consider a claim. The claim that the Tribunal was said to have failed to consider was not specified either in the application or at hearing. Although reference was made to [36]-[37] of the Tribunal’s decision, it is apparent that the intended reference was to [46]-[47].
I accept the Minister’s submission that the Tribunal considered and dealt with the applicant’s claims to face significant harm in Bangladesh. The factual claims relied upon by the applicant in relation to the complementary protection criterion were the same claims that the applicant relied upon in relation to the refugee criterion. Those claims centred around the applicant’s claimed involvement with the BNP. The Tribunal disbelieved those claims.
Where, as here, the Tribunal rejected the factual basis of the applicant’s claims to protection, it was open to the Tribunal to rely upon its earlier findings in concluding that the applicant was unable to meet the complementary protection criterion: ALD16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1286 at [30] (Farrell J). Therefore, although the Tribunal’s findings regarding complementary protection were succinct, they were adequately supported by the Tribunal’s earlier reasoning.
Having regard to the above, ground 3 is unable to succeed.
Ground 4
Ground 4 contended that the Tribunal failed to determine whether the applicant would “continue to engage in political activities” if he returned to Bangladesh (and thus face relevant harm) and/or if he would be “dissuaded from re-engaging in political activities” due to a fear of persecution or significant harm.
As considered above, the Tribunal did not accept that the applicant had engaged in political activities in the past. The Tribunal also expressly rejected that the applicant would engage in political activities in the future. In doing so, the Tribunal considered, but did not accept, the applicant’s claim to have been prevented from doing so for years due to his fear of the Awami League.
The Tribunal therefore rejected the applicant’s claims regarding political activities (including his claimed motive for not engaging in political activities) in their entirety. I accept the Minister’s submission that the Tribunal’s findings were dispositive of the applicant’s claims, without falling into the species of error considered in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; (2003) 216 CLR 473. It is apparent that the Tribunal considered that the applicant would not engage in political activities because he did not wish to do so, and not because of any fear of persecution or significant harm.
It follows that ground 4 is unable to succeed.
Ground 5
Ground 5 raised an allegation of bias.
Allegations of bias are serious allegations which must be firmly and distinctly made and clearly proven: Minister for Immigration and Multicultural Affairs v Jia Legeng (Jia Legeng) [2001] HCA 17; (2001) 205 CLR 507 at [127] (Kirby J). Actual bias requires prejudgment in a manner so committed to a conclusion that it is “incapable of alteration”, regardless of arguments or evidence: Jia Legeng at [72] (Gleeson CJ and Gummow J). Apprehended bias requires that a “fair-minded lay observer might reasonably apprehend” that a decision maker “might not bring an impartial mind” to determination of the matter: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [33] (Gleeson CJ, McHugh, Gummow and Hayne JJ).
The particulars to the ground contended, first, that country information did not support that “torture and ill-treatment will not be repeated by his persecutors to the applicant”. However, as considered above, the Tribunal did not accept on credibility grounds that the applicant had suffered the harm he claimed to have suffered in the past. Having regard to these findings, the Tribunal did not accept that the applicant faced a real chance of suffering such harm in the future.
Particular (b) and (f) suggested that the Tribunal applied too stringent a standard of proof. However, this is not apparent from the Tribunal’s decision. It was open to the Tribunal to make factual findings in the manner that it did (i.e. by reference to what it accepted or did not accept) before assessing whether the applicant met the real chance test. The Tribunal’s reasoning in this regard appears to have been reasonably orthodox. It is not apparent that in so reasoning, the Tribunal applied any high or inappropriate standard of proof.
Paragraph (g) suggested that the Tribunal should have found that the Delegate applied too high a standard of proof. However, as considered above, such an evaluation was not the Tribunal’s role on merits review.
Particulars (d) and (e) suggested that the Tribunal’s findings regarding the applicant’s involvement in the BNP were different from the Delegate’s. However, although the Delegate accepted that the applicant was a low-level BNP supporter, the Delegate did not accept the applicant’s profile or involvement was of the level claimed. The Tribunal’s findings were not entirely dissimilar. The Tribunal accepted that the applicant preferred the BNP to the Awami League, but did not accept that his profile or involvement with the BNP was as he had claimed. Whilst the Tribunal may have gone somewhat further than the Delegate in finding that the applicant was not “an active BNP supporter” and rejecting that he had attended the BNP rallies/meetings in his village as claimed, I accept the Minister’s submission that the applicant was sufficiently on notice from the Delegate’s decision and the Tribunal’s questioning that the extent of his involvement with the BNP may be in issue. In any event, it is not apparent how the Tribunal reasoning in a different manner to the Delegate could be said to be demonstrative of bias. The mere fact of adverse findings is not sufficient to demonstrate bias: VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872; (2003) 131 FCR 102 at [21].
Particular (h) suggested that the Tribunal must take into account any personal factors which may explain why a claimant's testimony might be problematic. However, it has not been demonstrated that the Tribunal failed to do so in the present case. To the contrary, as was identified in particular (c), the Tribunal in this case considered whether matters specific to the applicant (such as limitations in his education) may have accounted for the difficulties in his evidence. The Tribunal expressly considered the applicant’s evidence regarding his lack of education and claimed memory problems (at [30] and [40]-[41]). The Tribunal found that neither were capable of explaining the difficulties in the applicant’s evidence. In relation to the claimed memory problems, the Tribunal observed that no corroborative evidence had been provided. It has not been demonstrated that this reasoning was closed to the Tribunal. Nor has it been demonstrated how the Tribunal’s reasoning in this regard is capable of indicating bias.
Having regard to the above, I am not persuaded that either actual or apprehended bias have been demonstrated.
Additional issues – the applicant’s affidavit
In an affidavit filed with his application, the applicant generally suggested that the Tribunal failed to consider his “well-founded fear of persecution”, that he was physically assaulted, that he had a false case filed against him, and that his life was at risk. As considered above, the Tribunal considered but rejected the applicant’s claims in this regard (at [29]-[48] of its decision).
Although the applicant may disagree with the Tribunal’s findings, such disagreement does not provide a basis for this Court to set aside the Tribunal’s decision. This is in circumstances where the reasons given by the Tribunal at [29]-[48], which are summarised above, appear to have provided a coherent and logical basis for the Tribunal’s rejection of the applicant’s claims. The applicant had not demonstrated that such reasoning was relevantly closed to the Tribunal.
The applicant also suggested in his affidavit that the Tribunal failed to consider the documents that he provided in support of his claims. However, the applicant did not draw attention to any document that he provided that the Tribunal failed to consider. None is apparent from my review of the materials.
Additional issues – raised at hearing
At the hearing before the Court, the applicant said that he had told the Tribunal he had scars from being attacked but that this was not considered by the Tribunal. The transcript of the Tribunal hearing relied upon by the applicant (annexed to his affidavit dated 24 September 2018) (Applicant’s Transcript) indicated that the applicant had offered to show the Tribunal “the marks”. In relation to the transcript, I also observed at the hearing before the Court that:
(a)certain evidence summarised in the Tribunal’s decision was unable to be located in the Applicant’s Transcript, particularly in relation to [32] of the Tribunal’s decision; and
(b)the applicant’s evidence indicated that the applicant had told the Tribunal that he had contacted both it and the Department to try and obtain a copy of his protection visa interview but “was not able to get any further help or information”. This was not referred to in the Tribunal’s reasons.
In response, the Minister placed a transcript of the Tribunal hearing before the Court that appears to have been produced by a transcription business (Minister’s Transcript). That transcript suggests that the Applicant’s Transcript is incomplete and inaccurate in some instances. To the extent that they differ, I prefer the Minister’s Transcript as evidence. This is in circumstances where it appears to have been independently produced and to accord with the Tribunal’s description of what occurred at the hearing. Although the Applicant’s Transcript appears to have been produced by a person with interpreting qualifications, as noted above, it does not appear to be entirely complete or accurate when considered in relation to other material that is before the Court.
The Minister’s Transcript shows that the applicant referred to his “marks” or injuries at two points during the hearing. At page 29, the applicant described being attacked and stabbed, before stating: “they stabbed me through my back, and they stabbed me on my legs as well, I have the marks as well”. At pages 26, the applicant similarly stated: “I have the marks of all the stab wounds I had from them”. At page 34, the transcript shows that later in the hearing the applicant stated: “I was stabbed in two places on my back. I wasn’t, obviously, hurt in a way that I am fully disabled to do my things”.
The Minister’s Transcript does not demonstrate that the applicant offered or attempted to provide the Tribunal with visual evidence of his injuries. It does show that the applicant referred to having those injuries or “marks”.
The applicant’s oral evidence in this regard was evidence put forward in support of his claims. Noting that the applicant is unrepresented, I have considered whether the Tribunal failed to consider this evidence in a manner capable of demonstrating an error of the nature considered in Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 (Robertson J).
However, as the Minister observed, the Tribunal was not required to refer to every piece of evidence and every contention made by the applicant: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 at [46] (French, Sackville and Hely JJ). I accept the Minister’s submission that an inference ought not to be drawn, on the balance of probabilities, that the Tribunal failed to consider the applicant’s oral evidence that he had “marks”. This is taking into account the following:
(a)The Tribunal’s decision record suggests that the Tribunal considered the applicant’s claims regarding being attacked at a rally in some detail. This included the applicant’s reference at [32] to being attacked and “stabbed”. The Tribunal, therefore, appears to have been aware that the applicant claimed to have been injured in this manner (and to potentially bear the marks of such injuries).
(b)The Tribunal nonetheless rejected, for the reasons summarised above, the applicant’s broader claims to have experienced political violence. In doing so, the Tribunal did not reject that the applicant may have been harmed in the past but rejected that he had been harmed for the reasons claimed. In this regard, the applicant’s claim to bear the “marks” or scars from such harm (as opposed to from some other cause) was capable of being subsumed in the Tribunal’s findings of greater generality (at [34]). I find this to be the more likely interpretation of the Tribunal’s reasons.
I have also considered whether the Tribunal may be said to have overlooked the applicant’s statement at hearing that he had been unable to obtain a copy of the audio from his protection visa interview. The Minister’s Transcript indicates that the following exchanges occurred in this regard (at page 2):
INTERPRETER: In my last interview with immigration I was quite nervous and I had a fever on the day, and also the interpreter was on the phone, and I had lost the recording, the CD that I was given of the interview, so I'm unaware of what mistake happened on the last interview. I actually tried to seek help from immigration. I even came here and also tried to seek help from SSI but I was unable to get any more help or information.
MEMBER:Well, what we're going to do today is I'm having another look at the decision of the delegate to refuse your visa. You'll have a chance to tell me anything you want today. No-one from the Department of Immigration comes today, but what happens is they send me your file, and I have read that file. I am separate and independent from the Department of Immigration, and I'm going to be having a fresh look at whether you come within the definition of a refugee for the purposes of the Migration Act or the Refugee's Convention, and I'm also going to be looking at whether you come within the relevant criteria for the grant of complimentary protection under the Migration Act.
As the Minister observed, the evidence does not show that the applicant expressed any concern with what was said by the Tribunal during the hearing, or took any further step towards obtaining the audio. I accept that, in these circumstances, it is not entirely surprising that the Tribunal did not refer to the exchange in its reasoning. Further, the Tribunal’s rejection of the applicant’s claims appears to have been based upon the evidence that he gave at the Tribunal hearing, rather than the earlier interview. To the extent that the Tribunal relied upon what the applicant had said at interview, this appears to have been raised with him at the Tribunal hearing (Minister’s Transcript, page 34). I am therefore not persuaded that the Tribunal overlooked this evidence, or otherwise fell into relevant error in dealing with this material.
For similar reasons, I am also not persuaded that the Tribunal overlooked the applicant’s submission about the difficulties he said that he had experienced at the interview with the Delegate. In circumstances where the Tribunal does not appear to have relied upon deficiencies in the applicant’s presentation of evidence at interview (beyond that discussed above), it is not entirely unsurprising that the Tribunal would not have referred to the applicant’s claim to have been “nervous” and “had a fever” in its decision. As was submitted by the Minister, the applicant does not appear to have contended that anything he specifically said to the Delegate was inaccurate on this basis and, in any event, it is not apparent that anything turned on this in the Tribunal’s decision.
At the resumed hearing before the Court, the applicant additionally submitted that he had experienced difficulties in obtaining documents from his home village due to electricity issues. However, it is not apparent that the applicant sought additional opportunity or time from the Tribunal at or subsequent to the Tribunal hearing regarding the submission of further evidence for this reason. In these circumstances, it is unclear how this could be said to demonstrate relevant error on the part of the Tribunal.
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 sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing. Associate:
Dated: 29 November 2024
0
19
2