FGX18 v Minister for Home Affairs
[2020] FCCA 1669
•25 June 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FGX18 v MINISTER FOR HOME AFFAIRS & ANOR | [2020] FCCA 1669 |
| Catchwords: MIGRATION – Migration Act 1958 (Cth) – Protection visa application – application for judicial review of a decision of the Administrative Appeals Tribunal affirming a decision of the Delegate of the Minister for Immigration not to grant to the Applicant a Protection (Class XA) (Subclass 866) visa – two certificates under s.438 of the Migration Act 1958 (Cth) had been given by a Delegate of the Minister to the Tribunal – the Applicant asserted that he was denied procedural fairness because Tribunal failed to alert the Applicant to the existence of the certificates issued to it under s.438 and indeed denied their existence; failed to take oral evidence from witnesses nominated by him; did not put certain information to him pursuant to ss.424A and 424AA of the Act and failed to fully consider his claims – HELD the s.438 certificates and the documents covered by them had no relevance or materiality to the issues before the Tribunal and the decision made by it – none of the other Grounds asserted by the Applicant established that the decision of the Tribunal was affected by jurisdictional error – application for judicial review dismissed. |
| Legislation: Evidence Act 1995 (Cth), s.43 |
| Cases cited: AWA15 v Minister for Immigration [2018] FCA 604 BOX16 v Minister for Immigration and Border Protection [2020] FCA 801 |
| Applicant: | FGX18 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2862 of 2018 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 17 June 2019 |
| Date of Last Submission: | 18 June 2019 |
| Date Reserved: | 8 July 2019 |
| Delivered at: | Sydney |
| Delivered on: | 25 June 2020 |
REPRESENTATION
| The Applicant appeared in person. |
| Counsel for the First Respondent: | Mr T. Reilly of Counsel |
| Solicitors for the First Respondent: | Sparke Helmore |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
The Amended Application filed in this Court on 15 March 2019 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2862 of 2018
| FGX18 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant in this proceeding is a male citizen of Bangladesh aged 44 years.
By Amended Application filed in this Court on 15 March 2019 he seeks to quash and have re-determined in accordance with law the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 11 September 2018 which affirmed the decision of the Delegate (Delegate) of the First Respondent, the Minister for Home Affairs (Minister), dated 22 December 2015 refusing to grant to him a Protection (Class XA) (Subclass 866) visa (Protection visa) under s.65 of Migration Act 1958 (Cth) (the Act).
Background
The Applicant applied for a Tourist (Class FA) (Subclass 600) visa (Tourist visa) in Bangladesh on 16 December 2014 which was granted to him on 30 December 2014. He subsequently departed Bangladesh on 12 February 2015 and arrived in Australia on 13 February 2015. He then lodged his application for a Protection visa on 12 May 2015 through his solicitor and registered migration agent (migration agent).
Relevant Law and Criteria Applicable to the Grant of a Protection Visa
A convenient summary of the relevant grounds and criteria for the grant of the Protection visa in this proceeding can be found in the judgment of Charlesworth J in AWA15 v Minister for Immigration [2018] FCA 604 at [5] – [7] as follows:
[5] The Minister is to grant a visa if satisfied that the visa applicant satisfies the relevant criteria. If the Minister is not so satisfied, he must refuse to grant the visa: s 65(1) of the Act. For the appellant to qualify for the grant of a protection visa it was necessary for the Minister to be satisfied that (among other things) the appellant fulfilled either the criterion in s 36(2)(a) of the Act (Refugee Criterion) or the criterion in s 36(2)(aa) of the Act (Complementary Protection Criterion).
[6]The Refugee Criterion requires that the Minister be satisfied that the visa applicant is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention, as amended by the Refugees Protocol, namely a person who:
... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.
[7]Relevantly, the Complementary Protection Criterion requires that the visa applicant be a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because:
... the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; ....
Claims for Protection
In response to question 90 of his Protection visa application form the Applicant claimed that he had left Bangladesh for the following reasons:
I am a supporter and member of the Bangladeshi Nationalist Party. I am Hindu. Due to my association with our local Chairman named Mr Makbul Islam Khan Tipu [(Mr Tipu)], member of the BNP Ward 76, I started supporting the BNP. I went to UK in 2005 and stayed there till 2013. I applied for a protection visa because I feared that I would be targeted in Bangladesh. In 2013, I returned to Bangladesh, and formed a cultural academy called Chirtron Lalit Kola with the help of my political leader Mr Tipu. In 2013, I officially joined as a member of the BNP. I am a cricketer and a cricket coach and involved with the cricket clubs. The Presidents of the cricket clubs, I worked or represented have BNP connections and due to that the Awami League people continue to show their anger on me. One of the reasons was that I refused to play for a club controlled by the Awami League leaders. In November 2014, I was attacked by the Awami League student wing member named Mr X and his political colleagues. They open fired on us and I sustained injury. In January 2015, Tipu was arrested by the authorities in Bangladesh. During that time, I wanted to come to Australia, to watch the cricket matches. After Tipu was arrested I left the house and went on hiding. The police later went to my house looking for me. After that, I managed to escape from Bangladesh and came to Australia.
I fear due to my political affiliation and support for the BNP, I will face serious harm if I returned to Bangladesh. I fear I can not get state protection because the Awami League is in power and it considers BNP members are their enemies. I fear that even if I move to other parts of Bangladesh I will continue to face harm because I will continue to support my party.
(emphasis added)
By letter dated 6 October 2015 sent to the Department of the Minister (Department) the migration agent summarised the Applicant’s claims to protection in the following terms:
It is submitted that the applicant is a person to whom Australia has protection obligations, as he has a well-founded fear of suffering persecution for convention reasons if he returned to Bangladesh for the cumulative reasons of:
(a). Religion: Hindu
(b). Political Opinion: Holding and supporting the political ideologies of Bangladesh Nationalist Party (BNP).
(b). Particular Social Group: Cricketer who has political affiliation with the BNP.
In a Statutory Declaration declared on 8 October 2015 (Statutory Declaration) the Applicant claimed as follows:
6.I went to UK in September 2006 and stayed there till 2013. I applied further to stay visa in 2007 and applied for a protection visa in the UK in 2013. In 2013, I returned to Bangladesh in 2013, and formed a cultural academy called Chirtron Lalit Kola with the help of my political leader Mr Tipu.
7. In 2013, I officially joined as a member of the BNP. I became the Sports Secretary of the Ward 40, Ghandaria Dhaka. I am a cricketer and a cricket coach and involved with the cricket clubs. I became an assistant Coach with Bangladesh Boys Club and also played for that club. Bangladesh Boys club is headed by Mukthar, a BNP leader and ex-commissioner. The Presidents of the cricket clubs, I worked or represented have BNP connections and due to that the Awami League people continue to show their anger on me. One of the reasons was that I refused to play for a club controlled by the Awami League leaders.
8. In November 2014, I was attacked by the Awami League student wing member named Mr X and his political colleagues at the premises we used to hold meeting for Chirtron Lalit Kola. They open fired on us and I sustained injury. In January 2015, Tipu was arrested by the authorities in Bangladesh. In January 2015, the Awami League supporters put a false case with the help of the Police alleging that in engaged with criminal activities. They also accused that I involved with the BNP leaders and accused that I set fire to the bus at Azimpur. This is a false case. After that I decided to leave the country. During that time, I wanted to come to Australia, to watch the cricket matches. After Tipu was arrested I left the house and went on hiding. The police later went to my house looking for me. After that, I managed to escape from Bangladesh and came to Australia. Due to the continuous harassment of the police and the Awami League supporters, my father became ill and died in July 2015. My family told me recently that the land lord of the family asked them to leave the property as he also faced harassments from the Awami League people.
(emphasis added)
9. I fear due to my political affiliation and support for the BNP, I will face serious harm if I returned to Bangladesh. I fear I can not get state protection because the Awami League is in power and it considers BNP members are their enemies. I fear that even if I move to other parts of Bangladesh I will continue to face harm because I will continue to support my party.
10. Accordingly, I seek protection in Australia.
Decision of Delegate
The Applicant attended an interview with the Delegate on 13 October 2015.
In her Decision Record the Delegate recorded the claims as made by the Applicant in his Protection visa application form, the Statutory Declaration and additional information and claims made by him at the interview with her, which included that he had applied for a Protection visa in the United Kingdom which was refused in 2013 and that he had applied for a visa to visit friends in the United States of America in June / July 2014, which had been refused. The Delegate then went on to assess the veracity of his claims, with reference to country information, under the headings of:
a)Claims regarding Hindu religion;
b)Claims regarding being a Hindu cricketer with political opinion / affiliation;
c)Claims regarding fear of persecution; and
d)Claims regarding police report.
In the result the Delegate did not accept that the Applicant had left Bangladesh because he had a genuine fear of being harmed there or that he faced persecution, serious harm or significant harm in Bangladesh as claimed by him. Accordingly, the Delegate was not satisfied that Australia owed protection obligations to the Applicant under either the Refugees Convention criterion or the complementary protection criterion and refused to grant a Protection visa to him.
Decision of Tribunal
The Applicant through his migration agent lodged an application for merits review with the Tribunal on 18 January 2016.
However, prior to lodgement of the merits review application with the Tribunal a Delegate of the Minister gave to the Tribunal a certificate purportedly under s.438(1)(b) of the Act with reference to folios 143 – 145 of the Applicant’s file maintained by the Department (first s.438 Certificate). Those folios are in evidence and it is established by evidence relied upon by the Minister that they are in the nature of an identification test and a fingerprint match report relating to the Applicant’s application for a visa to enter the United States of America in 2014 (see also [9] above). As such, they appear to be of a completely mundane and banal administrative nature with no apparent relevance to the consideration and determination of the Applicant’s claims to protection. The evidence before me does not disclose any reason why this first s.438 Certificate was issued and given to the Tribunal prior to the lodgement of the merits review application with the Tribunal.
On 19 January 2016 a Delegate of the Minister gave to the Tribunal a further purported certificate under s.438(1)(a) of the Act with reference to folios 48 and 143 – 145 of the Applicant’s file maintained by the Department (second s.438 Certificate). The additional folio 48 also related to an identification test and fingerprint match report and is similarly of a mundane and banal nature.
The Applicant appeared at a hearing before the Tribunal on 8 June 2018 to give evidence and present arguments together with his migration agent and an interpreter in the Bengali and English languages. The Tribunal hearing extended over a period of three and a quarter hours.
Subsequent to the Tribunal hearing, by letter dated 13 June 2018 the Tribunal gave to the Applicant through his migration agent information that would be the reason, or part of the reason, for affirming the decision under review and invited the Applicant to respond or comment thereupon (s.424A letter). In short, the s.424A letter sought comment on the inconsistency between the Applicant’s evidence at the Tribunal hearing to the effect that he did not make arrangements to leave Bangladesh until after the police had gone to his family home in mid-January 2015 to apprehend him, and the fact that as of 15 December 2014 he already held a confirmed reservation for a flight departing Bangladesh on 12 February 2015.
The Applicant responded to the s.424A letter on 27 June 2018, in the following terms:
Due to the intimidation, harassment I decided that I should get a visa in order to leave in case the situation started getting worsen. Since I am a Cricketer with a good profile, the agent advised me Australia would be the best option to get a visa to go and see the World cup. On the basis of his advice, I decided to apply for a visitor visa. I applied for a visitor visa on 16 December 2014 and as a requirement I provided a tentative ticket to the Australian High Commission. I was granted a visa on 30 December 2014. When the police visited my home in Mid-January to arrest me, I decided that it would be dangerous for me to stay further in Bangladesh and decided to leave. That was the trigger for me to leave the country. That’s why, I told the Tribunal that I decided to leave the Country after the Mid-January 2015 Police visit.
I think that there is no inconsistency in my evidence in this regard and request the Tribunal to consider my particular circumstances individually and cumulatively and recognize as a refugee.
(emphasis added)
From [8] – [48] of its Decision Record the Tribunal recorded its consideration and evaluation of the Applicant’s claims and its findings in relation to them. At [45] the Tribunal stated as follows:
[45]… For the reasons given above, the Tribunal finds in this case that this applicant is not a witness of truth and the account of events on which his protection claims are based is false. For the reasons given above, the Tribunal finds that the risk of him suffering serious harm on return to Bangladesh is remote.
Part of the Tribunal’s rejection of the Applicant’s credibility appears to have been based on his demeanour when giving evidence at the Tribunal hearing: see [11] and [19] of its Decision Record. The main issues which concerned the Tribunal were as follows:
a)the Applicant applied for his Tourist visa in mid-December 2014, which was granted on 30 December 2014, but he did not depart Bangladesh until 12 February 2015. The Tribunal considered that the Applicant’s evidence, that he needed to stay in Bangladesh to save money to purchase tickets to attend a cricket tournament in Australia, was not consistent with the actions of someone who held a genuine fear of harm: see [18] – [19] of the Decision Record;
b)as put to the Applicant in the s.424A letter, he had provided a travel itinerary with his Tourist visa application that indicated his flight departing from Bangladesh on 12 February 2015, had been booked on 15 December 2014. This was inconsistent with the Applicant’s evidence to the Tribunal that he had made no travel arrangements to depart Bangladesh until after police attended his family home in mid-January 2015: see [20] of the Decision Record;
c)the Applicant’s evidence in his Protection visa application form (see [5] above) and Statutory Declaration (see [7][8] above) was that after the arrest of Mr Tipu he had left his home and gone into hiding. This was inconsistent with his evidence to the Tribunal that he went into hiding after he was attacked in November 2014: see [22] – [24] of the Decision Record; and
d)inconsistencies in different versions given by the Applicant concerning the claimed attack in November 2014 in Bangladesh, which at the Tribunal hearing he alleged for the first time was connected with the organising of a badminton tournament: see [25] – [30] of the Decision Record.
The Tribunal did not give evidentiary weight to the documents submitted by the Applicant in support of his claims, which documents were particularised at footnote 3 of its Decision Record and of which it was said by the Tribunal at [32] – [33], as follows:
[32] The applicant submitted documents to support his claims about suffering harm in Bangladesh at the hands of the Awami League. Country information indicates a wide prevalence of document fraud in Bangladesh in relation to official identity documents as well as in relation to employment. Given this wide prevalence of fraud, the Tribunal also believes it is reasonable to infer that this also applies to documents issued by police and other related law enforcement agencies. That inference can be supported by the wide prevalence of corruption in Bangladesh. The Tribunal also believes that given the prevalence of corruption and the widespread practice of document fraud of the kind referred to in country information, it is reasonable to infer that this could apply to other types of official documentation such as letters from officials of political parties, advocates and medical clinics or hospitals.
[33]The Tribunal put this country information to the applicant who responded that his documents were genuine because they had been attested by a lawyer. The Tribunal has carefully considered that claim and the contents of the documents provided by the applicant but they do no more than purport to claim that the applicant was attacked in November 2014 for helping the BNP and that, after that, police have been trying to apprehend him on the basis of a false case taken out against him. These documents do not explain or overcome inconsistent evidence the applicant has given about the incident in November 2014 including inconsistent evidence about when he went into hiding, the reason that incident occurred and his evidence about when he decided to leave Bangladesh as soon as possible. The documents he has submitted do not overcome the Tribunal’s concerns about his credibility and, considered with the country information about the prevalence of document fraud Bangladesh, the Tribunal does not give evidentiary weight to these documents.
Based on country information the Tribunal found at [37] of its Decision Record that there were between 12 – 15 million Hindus in Bangladesh who were free to practise their religion and participate in society, and at [38] found that the chance of the Applicant suffering serious harm as a Hindu was remote.
With regard to the giving of the s.438 Certificates the Tribunal recorded at [46] of its Decision Record as follows:
[46]For the sake of completeness, the Tribunal records that it had access to the Department file relating to the application made by the applicant for a visitor visa. The Tribunal records that there is no information in this file that is relevant to the grounds on which this review application has been determined. Further, the Department issued a certificate pursuant to s.438(1)(a) of the Act in relation to certain documents on the basis that they related to business affairs and an internal working document. In relation to one of these documents (folio 48) the Tribunal finds that the certificate has not been properly given because a public interest reason for withholding it has not been properly specified. Its contents are also not relevant to the review. In relation to the remaining documents, which indicate the applicant applied for a visa to enter the United States in mid-2014, this has already been disclosed to the applicant by the delegate. There was no need for the Tribunal to discuss these documents with the applicant as they are also not relevant to the grounds on which this review has been determined.
I note that it seems clear that at [46] the Tribunal is referring only to the second s.438 Certificate, presumably proceeding on the reasonable basis that the second s.438 Certificate overtook and supplanted the first s.438 Certificate, because the documents the subject of the first s.438 Certificate were also covered by the second s.438 Certificate.
The Tribunal summarised its conclusions on the Applicant’s claims at [47] of its Decision Record, as follows:
[47]The Tribunal repeats its finding that the applicant is not a witness of truth and the account of events on which his protection claims are based is false. There is no credible evidence before the Tribunal as to why the applicant left Bangladesh in early 2015 and why he does not wish to return there. There is similarly no credible evidence as to why the applicant left Bangladesh and travelled to Britain in earlier years. There is no credible evidence before the Tribunal that the applicant suffered harm in Bangladesh and that anyone in Bangladesh seeks to harm him. Further, the Tribunal finds, based on available country information that there is not a real chance the applicant will suffer serious harm on the grounds that he is Hindu or on the basis of any further involvement with the BNP in Bangladesh. The Tribunal finds that there is also no evidence before it nor any specific claim made that because the applicant is a sportsman there is a real chance that he will suffer serious harm in Bangladesh. There is no credible evidence that the applicant suffered harm in Bangladesh for being a sportsman.
(emphasis added)
At [49] – [51] of its Decision Record Tribunal concluded that the Applicant was not a person in respect of whom Australia owed protection obligations under either the Refugees Convention criterion or the complementary protection criterion and at [52] affirmed the decision of the Delegate not to grant a Protection visa to the Applicant.
Grounds of Attack on Decision of Tribunal in this Court
The Amended Grounds relied upon by the Applicant were as follows:
1. The Tribunal denied procedural fairness to the Applicant.
Particulars
A delegate of the Minister gave the Tribunal a certificate or a purported certificate under s438 of the Migration Act 1958. The Tribunal had regard to the material referred to in the certificate. The existence of the certificate was not revealed to the Applicant at any time before the Tribunal made its decision. Procedural fairness imposed an obligation on the Tribunal to disclose the certificate to the Applicant, but it did not do so. The Tribunal failed to put information in Section 438 Certificate under Section 424A or 424AA of the Migration Act 1958.
During the Tribunal hearing that the Tribunal completely denied the existence of Section 438 Certificate when the immigration representative inquired about it. However, in the decision record the Tribunal said that there was a Section 438 Certificate but did not give the applicant to provide submission on the validity of the Certificate. In its decision in para 46, the Tribunal noted that Section 438 Certificate consist of information about his visa application to the USA and said since the applicant disclosed such information to the delegate of the Minister, was no need for the Tribunal to discuss these documents with the applicant. It further said they are not relevant to the grounds on which this review has been determined.
It should be noted that though the Tribunal said it is not relevant to the review application, however, such information was relevant to the review because it could have affected the mind of the Tribunal on the question why he applied for the USA visa in 2014 and if he had faced issues in Bangladesh facing harm, how come he could have visited the USA Embassy and applied for the visa. Though the Tribunal said that the above information had no relevant to the review, it is respectfully submitted that on the basis of balance of probability, there is a chance that it could have affected the mind of the decision-maker.
Further, it should be noted that the applicant never provided the Department of Home Affairs’ decision record to the Tribunal. In such a situation, any such information adverse to the applicant should have been provided to the applicant under section 424A or Section 424AA of the Migration Act to invite comment or response.
2. The Tribunal failed to give the Applicant a proper opportunity to present arguments and evidence in support of his case at the hearing.
Particulars
The Applicant requested the Tribunal to take evidence from a number of witnesses at the hearing. The Tribunal, without reasonable excuse, refused to do so.
It is respectfully submitted that the Tribunal’s decision to refuse to take evidence from witnesses in unreasonable despite the repeated request by the applicant’s representative. The Tribunal hearing recording indicates that the Tribunal made assumptions because the Member said that he would just assume that they would just repeat what they have said in their letters. The Tribunal simply made assumptions to refuse to take evidence from the witnesses.
The Tribunal said it accepts that the applicant had ‘some involvement’ with the Great Britain and then said these activities mainly comprised the applicant working as a sports secretary organizing sporting events. It is respectfully submitted that if the Tribunal had in fact called the witness in the UK he would have provided evidence about the applicant’s specific activities. It is further submitted that the Tribunal did not allow the applicant’s representative to complete his submission when the applicant’s representative started saying the relevance of taking evidence from the witness. (see Transcript page 35 para 40). The Tribunal failed to provide reasonable excuse not to take evidence from the witnesses.
3. The Tribunal failed to comply with s424(A) or s 424(AA) of the Act in respect of information that it considered would be there reason or part of the reason for affirming the decision under review. It should be noted that the applicant did not provide Decision record of the Department of Home Affairs to the Tribunal. It is submitted the any information the applicant provided orally to the delegate of the Minister is covered by Section 424A or Section 424AA of the Migration Act.
4. The Tribunal failed to consider relevant considerations or failed to provide realistic consideration of applicant’s claim.
Particulars
A. The applicant’s representative submitted in his submission (CB142) that the applicant would fall within a particular social group, namely, Cricketer who has political affiliation with the BNP.
B. The applicant’s representative submitted in his submission (CB225) that the applicant would face Sedition charges under s 124A of the Penal Code due to applicant’s involvement in activities to change the government. The applicant has provided evidence of his involvement in public protest against the government of Bangladesh.
C. The applicant’s representative submitted in his submission (CB224) that the applicant not only holding a political opinion supporting the BNP but also holding a political opinion against the Awami League. It seems that the Tribunal has only considered the applicant’s claim in relation to his support to the BNP and not about his political opinion against the Awami League.
I note that at the hearing in this Court the Applicant was unfortunately unable to make any meaningful oral submissions in support of the claims of jurisdictional error made in the Amended Grounds.
Consideration
Ground 1
By this Ground the Applicant contends that he was not afforded procedural fairness because the Tribunal failed to disclose the existence of either of the s.438 Certificates to him, and indeed actually denied their existence at the Tribunal hearing. As the majority comprised of Bell, Gageler and Keane JJ said in Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 (SZMTA) at 440 – 441 [29]:
[29]… procedural fairness ordinarily requires that an applicant for an exercise of administrative power have an opportunity to tailor the presentation of evidence and the making of submissions to the procedure to be adopted by the decision-maker. Accordingly, procedural fairness ordinarily requires that an applicant be apprised of an event which results in an alteration to the procedural context in which an opportunity to present evidence and make submissions is routinely afforded (Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326 at 339 [43]-[44], 343-344 [62]-[67]).
Very regrettably, the Tribunal did in fact deny the presence of the s.438 Certificates in the Applicant’s file when at the end of the hearing the following exchange took place between the Tribunal member and the migration agent:
REPRESENTATIVE: Okay, okay.
MEMBER: Yes it’s right here [i.e. referring to an old passport], I’m quite happy to show that to you if you want to just have a look at that.
REPRESENTATIVE: Okay.
MEMBER: So I got the Department file and it has the application that the Applicant made--
REPRESENTATIVE: Sure, sure.
MEMBER: --and a lot of pages and then this itinerary that I put to him.
REPRESENTATIVE: Okay. Is there any section 438 or 375 certificates in that file?
MEMBER: No there’s no, there’s nothing about that.
(emphasis added and TP36.18 – .35)
There is no explanation before the Court as to why the Tribunal denied that there were any s.438 Certificates in the Applicant’s file. This Ground does not suggest that the Tribunal gave a deliberately false answer, and it may be the case that at the time the Tribunal member accessed the Applicant’s file the s.438 Certificates were not recorded in it, or they were overlooked. Whatever be the case, certainly at [46] of its Decision Record (reproduced at [21] above) the Tribunal spoke openly of the existence of the second s.438 Certificate.
Accordingly, the most likely explanation for the incorrect answer to the migration agent at the Tribunal hearing in this connection is simply some form of misadventure. Nevertheless, it sticks in the craw that in response to a legitimate and meaningful question by the representative of a party at an administrative hearing the relevant decision-maker gave a misleading and incorrect answer. If I was delivering palm tree justice I would be tempted to peremptorily remit the matter back to the Tribunal for a rehearing.
However, I have to determine whether, in the context-specific circumstances of this case, this misstatement and misrepresentation of the Tribunal to the migration agent, albeit innocent, constituted jurisdictional error.
A breach of the obligations of procedural fairness will only constitute jurisdictional error on the part of the Tribunal if the breach is material. A breach is material to a decision only if compliance with procedural fairness in the relevant regard could have realistically resulted in a different decision and “whether there is a realistic possibility that the Tribunal’s decision could have been different if it had taken the document or information into account. The court must be careful not to intrude into the fact-finding function of the Tribunal. Yet the court must be alive to the potential for a document or information, objectively evaluated, to have been of such marginal significance to the issues which arose in the review that the Tribunal’s failure to take it into account could not realistically have affected the result.”: SZMTA at 445 [45] and [48].
At 433 [2] of SZMTA the majority had summarised its conclusion in the following terms:
[2]The Full Court was correct to take the view that the fact of notification triggers an obligation of procedural fairness on the part of the Tribunal to disclose the fact of notification to the applicant for review. Breach of that obligation of procedural fairness constitutes jurisdictional error on the part of the Tribunal if, and only if, the breach is material. The breach is material if it operates to deny the applicant an opportunity to give evidence or make arguments to the Tribunal and thereby to deprive the applicant of the possibility of a successful outcome.
In my view, despite the very regrettable circumstances of the Tribunal’s misrepresentation, the Applicant was not deprived of the possibility of a successful outcome to his merits review application by that misrepresentation for the following reasons:
a)objectively the documents the subject of the second s.438 Certificate were not relevant to the determination of the review application;
b)the Tribunal at [46] of its Decision Record records its view that the second s.438 Certificate was invalid and that the documents which it covered were irrelevant to the determination of the review; and
c)the Tribunal did not act or rely upon the second s.438 Certificate or the documents covered by it in any way in determining the review application, either expressly or in any apparent, unspecified way. The transcript of the Tribunal hearing establishes that whilst the Applicant was questioned about the refusal of a Protection visa to him by Great Britain, there was no discussion or questioning of him about the refusal of a visa to visit the United States of America. Apart from a reference by the Tribunal in its background factual recitation at [9] to the refusal of a Protection visa by Great Britain, the Tribunal makes no reference to the refusal of these visas in its Decision Record and such refusals form no part of its process of reasoning or conclusions.
It follows that even if the Tribunal had disclosed the existence of the second s.438 Certificate to the migration agent and shown him the documents covered by it, the migration agent would not have been able thereupon to make meaningful arguments with reference to those documents in support of the review application. The second s.438 Certificate and the documents which it covered were irrelevant and had no impact one way or the other on the review application, and accordingly the Applicant was not deprived of any opportunity to give evidence or make arguments to the Tribunal, and thereby precluded from the possibility of a successful outcome. No submissions made by the migration agent on the documents covered by the second s.438 Certificate could have availed the Applicant in any way. The Applicant was not occasioned “practical injustice”.
In my view the Applicant has failed to discharge the onus of establishing jurisdictional error under this Ground, which is not made out.
Ground 2
By this Ground the Applicant contends that the Tribunal committed jurisdictional error by not acceding to his request to take oral evidence over the telephone from two witnesses in Bangladesh, a witness in the United Kingdom and a witness in Australia, all of whom had provided written statements to the Tribunal in support of the Applicant’s claims.
The relevant factual background to this Ground is as follows:
a)Mr Tipu from Bangladesh had provided two written statements respectively dated 8 October 2015 (Court Book page 144) and 28 May 2018 (Court Book page 193);
b)Mr Bhouyan, an advocate of the Supreme Court of Bangladesh, had given an undated letter (Court Book page 194);
c)Mr Chowdhury from the United Kingdom had given a letter dated 15 April 2015 (Court Book page 192); and
d)Mr Uddin in Australia had given a letter dated 27 May 2018 (Court Book page 233).
It is a fair statement of the letters from Messrs Tipu, Bhouyan and Chowdhury that they support some aspects of the claims of the Applicant. Mr Uddin, who appears to have only met the Applicant after his arrival in Australia, spoke of the Applicant’s activities in Australia and made submissions about the position in Bangladesh.
The evidence before me establishes that whilst the Applicant gave written notices prior to the Tribunal hearing that he wanted the Tribunal to obtain oral evidence from the above named persons, he failed to comply with s.426(2) of the Act by giving such notices within seven days of being notified of the Tribunal hearing date of 8 June 2018.
That failure meant that the Tribunal was not strictly bound under s.426(3) of the Act to give consideration to the Applicant’s wishes that it take evidence over the telephone from the nominated witnesses. The discretion under s.426(3) was not mandatorily engaged or enlivened.
However, having been made the late requests could not simply be ignored because they were not made in compliance with s.426(2) of the Act, but rather real, meaningful and genuine consideration still had to be given to them and to whether or not the witnesses should be contacted by telephone pursuant to the Tribunal’s undoubted power to do so located in s.427(1)(a), and by telephone under s.429A(a).
The transcript of the Tribunal hearing establishes that the issue of contacting the nominated witnesses was broached and dealt with at the end of the hearing in the following terms. After the Tribunal member had indicated that he had no further questions to ask, the migration agent immediately raised the issue of the Tribunal taking evidence from the nominated witnesses over the phone. The following substantive exchange then took place:
MEMBER: Yes now I will consider that request and if I think that I want to hear from them over the phone I’ll reconvene the hearing so that can happen. Whether I need to do that or not or whether I’m willing to assume that all of these people will repeat the statements that they’ve made in their statements and then balance that against whatever concerns I have about the applicant’s credibility.
…………………………………………………..
(TP34.39 – 47)
MEMBER: Well the statements they’ve made already are what the applicant is saying so as I said to you before it would really be a question for me then to decide, if I have concerns about the applicant’s credibility, to weigh that against these statements.
REPRESENTATIVE: Yes, sure.
MEMBER: So - and that would be a case of - so I’m willing to accept that if I called these people, they will repeat what they’ve said in their letters and then I have to weigh that along with of course what the Applicant has said with whatever concerns I have about his credibility.
REPRESENTATIVE: Yes Member, that’s right. They would confirm what they say, mention in their letters but in addition to that, they would be able to provide, you know--
MEMBER: I’m not sure about how well witnesses, at the end of a telephone in another country can really -- what difference that’s going to really make. My practise is to simply - I’ll just assume that they’ll just repeat what they’ve said in their letters but offer you the opportunity if you think there are other - in the light of the hearing today, there are other things that these people could say in addition to the letters they’ve provided, I’m quite happy to give you the opportunity to have them put that in writing.
REPRESENTATIVE: Okay.
MEMBER: Would you like to do that?
REPRESENTATIVE: I think they provided in their letter which - you know to corroborate the applicant’s evidence and I believe.. (not transcribable).. I mean from that angle and in relation to one of the concerns [of] the Tribunal.. (not transcribable).. regarding the old passport, I just wonder whether it’s in the visitor visa or?
MEMBER: Yes it is.
(emphasis added, TP35.28 – 36.16)
MEMBER: Okay then. So Mr Applicant, could you - did you understand that discussion.. (not transcribable).. tell you what that was?
APPLICANT: ..(Not transcribable)..
MEMBER: Q. Yes. So your representative was just saying, do I want to call these different people on the telephone and I was saying to him that I’m willing to accept that if I call them, they will say what they have said in their letters but I said to your representative I’m willing to give him time, if he would like those people to say more, to put in more but your representative was saying he feels that what they’ve said in their statements is sufficient, I think that’s what you were saying. You’re not asking for extra time?
REPRESENTATIVE: No not for the extra time.
APPLICANT: I think so too, I don’t think they have anything else to say apart from what they have written in their statements, it’s what they believe what they would say they have provided in written statements.
MEMBER: Okay. So Mr Representative, is there anything further from you?
REPRESENTATIVE: No Member but I wondered if the Tribunal could give us some time--
MEMBER: To make submissions?
REPRESENTATIVE: Yes on the issues raised?
MEMBER: Yes certainly so would two weeks be adequate for you?
REPRESENTATIVE: Yes, thank you.
(emphasis added, TP37.6 – 38)
In my view a fair reading of the above transcript reveals that both the Applicant and his migration agent accepted that there was no necessity for the Tribunal to telephone the witnesses, as the witnesses had put in their written letters what they wanted to say and that the Tribunal’s offer to allow a further period for those witnesses to put in extra written statements was declined.
The Tribunal returned to the issue of the request for the witnesses to give oral evidence at [34] – [36] of its Decision Record. In connection with Messrs Tipu and Bhouyan at [34] the Tribunal stated:
[34]The representative asked the Tribunal to take evidence by telephone from X and an advocate who purportedly provided a letter advising the applicant there was a case filed against him and police wanted to arrest him. The Tribunal declined the request to take evidence from these two individuals. The Tribunal was willing to accept that these people would repeat the claims they made in their letters which the applicant submitted to the Tribunal (these documents appear at folios 54-55, 61-62 of the Department file and folios 62-63 of the Tribunal file). That evidence does not persuade the Tribunal to overlook the concerns it holds about the applicant’s credibility which significantly discredit him as a witness. If the account of events on which the applicant’s protection claims was true, whether or not these witnesses in Bangladesh give evidence purporting to corroborate that account, the applicant himself would have given the Tribunal a consistent and credible account. For the reasons given above, the applicant has failed to do so.
(emphasis added)
In connection with Messrs Chowdhury and Uddin the Tribunal at [36] recorded that it did not take evidence over the telephone from them because it accepted the Applicant’s claims, which they had corroborated in their written statements, to have been involved with the BNP in Great Britain and Australia.
In my view this Ground fails to establish that the Tribunal committed jurisdictional error by not taking evidence over the telephone from the nominated witnesses. The Tribunal gave real and genuine consideration as to whether or not it should contact the nominated witnesses by telephone. Its reasons for not proposing to do so, or being reluctant to do so, were not legally unreasonable in the circumstances. Those circumstances included the Applicant’s implicit withdrawal of the request that the Tribunal ring the nominated witnesses, and acceptance of the fact that they had said all that they could in support of his claims and that there was no further need for them to supplement or amplify their written statements by further written statements.
Further, the Tribunal was entitled to take the view that any corroborating evidence of the nominated witnesses would not overcome the Tribunal’s root and branch rejection of the Applicant’s claims. In Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 it was argued that the Tribunal had erred in giving no weight to corroborating evidence because it had found that the Applicant’s evidence lacked credibility. Gleeson CJ (in the majority) rejected that argument, reasoning as follows (at 63 [12]):
[12]It is not necessarily irrational, or illogical, for a finder of fact, who is convinced that a principal witness is fabricating a story, which is considered to be inherently implausible, to reject corroborative evidence, even though there is no separate or independent ground for its rejection, apart from the reasons given for disbelieving the principal witness.
In my view the Tribunal’s exercise of its discretion not to take oral evidence over the telephone from the nominated witnesses was not legally unreasonable and was within the scope of its decisional freedom. This area of the law has recently been considered and analysed by Wigney J in BOX16 v Minister for Immigration and Border Protection [2020] FCA 801 and nothing in that judgment tends in favour of the view that the Tribunal committed jurisdictional error in the respect asserted by this Ground.
Accordingly, in my view this Ground is not made out.
Ground 3
By this Ground the Applicant contends that the Tribunal failed to comply with s.424A and s.424AA of the Act in circumstances where he had not provided the Decision Record of the Delegate to the Tribunal, and the Tribunal considered oral information recorded therein as given by the Applicant to the Delegate. The sections provide as follows:
424AA Information and invitation given orally by Tribunal while applicant appearing
(1) If an applicant is appearing before the Tribunal because of an invitation under section 425:
(a) the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) if the Tribunal does so—the Tribunal must:
(i) ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and
(ii) orally invite the applicant to comment on or respond to the information; and
(iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and
(iv) if the applicant seeks additional time to comment on or respond to the information—adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.
(2) A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 426A(1F).
424A Information and invitation given in writing by Tribunal
(1) Subject to subsections (2A) and (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
(2) The information and invitation must be given to the applicant:
(a) except where paragraph (b) applies—by one of the methods specified in section 441A; or
(b) if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.
(2A)The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.
(3) This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b) that the applicant gave for the purpose of the application for review; or
(ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or
(c) that is non‑disclosable information.
(4) A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 426A(1F).
Section 424A of the Act is engaged in respect of information that the Tribunal considers “would” and not “could” or “might” be the reason, or part of the reason, why a decision under review is affirmed. Information will not meet that description unless it serves to reject, deny or undermine the Applicant’s claimed entitlement to protection.
This Ground is particularised in the Applicant’s written Outline of Submissions, which has been clearly prepared by a lawyer.
Particular A complains of the Tribunal’s use at [18] of its Decision Record of the fact that the Applicant had been granted his Tourist visa on 30 December 2014. I note that it does not appear that this information was orally given by the Applicant to the Delegate, but that the Delegate herself had researched and ascertained that the Applicant had applied for his Tourist visa on 16 December 2014 and was granted a Tourist visa on 30 December 2014: see Decision Record of the Delegate at Court Book page 154.
The Applicant had stated in his Protection visa application form that he had arrived in Australia on a Tourist visa at Melbourne Airport on 13 February 2015. The transcript of the Tribunal hearing establishes that the Tribunal member asked the Applicant when he had applied for his Tourist visa to come to Australia and the Applicant answered that it was in December 2014 and that he had been granted his Tourist visa at the end of December 2014. There was general discussion at the Tribunal hearing in relation to this issue recorded at TP24.30 – 26.26. Paragraph [18] of the Decision Record of the Tribunal makes clear that it is speaking of evidence given at the Tribunal hearing, and not as it appeared in the Decision Record of the Delegate.
Accordingly, this was “information” which the Applicant “gave” at the hearing before the Tribunal in response to questioning by the Tribunal, and the force of s.424A(1) was rendered inapplicable by s.424A(3)(b) of the Act: see NBKT v Minister for Immigration and Multicultural Affairs (2006) 156 FCR 419 at 434 – 435 [57] – [59] per Young J, with the agreement of Gyles and Stone JJ.
Further and in any event, the s.424A letter (see [15] above) was given to the Applicant under s.424A of the Act itself on these very matters and the Applicant himself in his response informed the Tribunal that he had applied for the Tourist visa on 16 December 2014 and been granted the Tourist visa on 30 December 2014: see [16] above.
Accordingly, Particular A is not made out.
Particulars B and C complain of the Tribunal’s use of oral evidence by the Applicant to the Delegate concerning the alleged attack in November 2014, as contrasted with his evidence in relation to that matter at the Tribunal hearing: see [22] – [30] of the Decision Record of the Tribunal.
It is entirely conventional for the purposes of criminal and civil litigation for there to be consideration and comparison of any prior inconsistent statements or evidence of a party (or witness) in the course of the assessment of the trustworthiness and veracity of that party (e.g. see s.43 of the Evidence Act 1995 (Cth)). If the party has earlier said one thing and then subsequently says another thing about the same subject matter, this may, if not minor or trivial, throw suspicion on the accuracy or credibility of the party’s evidence. Nevertheless, such inconsistencies in the versions of events which the Applicant had given since lodging his Protection visa application did not constitute “information” for the purposes of s.424A of the Act. As Griffiths J said in SZTNL v Minister for Immigration (2015) 231 FCR 204 at 220 [53]:
[53]The relevant two pieces of information became material only because the Tribunal relied upon them in finding inconsistencies in the appellant’s evidence, which lead to the conclusion that he was not a truthful witness. I accept the Minister’s submission that it was these inconsistencies (or the process of comparison between the appellant’s evidence and the factual statements with which the evidence was compared) that counted against him, however, neither inconsistency nor such a comparative process constitutes “information” for the purposes of s 424A(1) (see SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 (SZBYR) at [18] and SZJBD v Minister for Immigration and Citizenship [2009] FCAFC 106; (2009) 179 FCR 109 at [104] per Buchanan J, with whom Perram J agreed).
At 616 [18] of SZBYR Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ had stated:
[18]…However broadly “information” be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence.
In other words, the obligation of the Tribunal to give information under ss.424A and 424AA of the Act only applied to “information” that contained a rejection, denial or undermining of the Applicant’s claims: SZBYR at 615 [17]. In this case the body of information given by the Applicant which was considered by the Tribunal to be in various respects inconsistent was all information that he had given in support of his claims for a Protection visa, and none of that information in terms constituted a rejection, denial, or undermining of his claims for a Protection visa. The information was only adverse to the Applicant insofar as inconsistencies were identified by the Tribunal in that information as provided previously and then at the Tribunal hearing.
Accordingly, this Ground fails to establish that the Tribunal failed to comply with ss.424A or 424AA of the Act.
Ground 4
By this Ground the Applicant contends that “the Tribunal failed to consider relevant considerations or failed to provide realistic consideration” of his claims. In this connection, it is of course a well-established principle that the Tribunal is required to deal with the case raised by the material or evidence before it and where it fails to make a finding on “a substantial, clearly articulated argument relying upon established facts”, that failure can amount to a failure to afford procedural fairness and a constructive failure to exercise jurisdiction: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No. 2) (2004) 144 FCR 1 at 17 [55] per Black CJ, French and Selway JJ.
This Ground is particularised in the Applicant’s written Outline of Submissions. Particular A contends that the Tribunal failed to consider the Applicant’s claim that he fell within the particular social group of being a cricketer who has political affiliations with the BNP: see also [6] above. However, in short each component of this asserted social group, namely the Applicant being a cricketer and affiliated with the BNP, was rejected as giving rise to a real or significant risk of harm upon his return to Bangladesh by the Tribunal.
In this connection it is clear from its Decision Record that the Tribunal recognised the claim that the Applicant was a cricketer who had connections with the BNP. In many paragraphs of the Decision Record of the Tribunal there is specific reference to the Applicant being involved in cricket activities, which at times the Tribunal refers to as his being involved in “sports”. At footnote 3 and footnote 11 it refers to Mr Tipu’s statement (see [37(a)] above) written on behalf of the BNP which claimed that the Applicant was a sports secretary for the BNP and that he had taken an active part in the BNP movement against the Awami League Government. At [35] of its Decision Record the Tribunal found that the Applicant may have had some involvement with the BNP, but that there was no credible evidence as to what that involvement was, and at [36] accepted that the Applicant “played a sport in Bangladesh at a high level”.
However, the Tribunal rejected the Applicant’s claims root and branch at [35] – [36], [38] and [41] – [47] of its Decision Record. At [31] it expressed its view that, considered cumulatively, the Applicant was not a witness of truth and at [47] (see [22] above) it comprehensively rejected his claims that he would suffer harm in Bangladesh on the basis of any further involvement with the BNP or because he was a sportsman.
It therefore follows that Particular A to this Ground is not made out, first because of the specific rejection of the individual components of the asserted social group, and second because of the overall rejection of the Applicant’s claims in findings of greater generality based largely on credibility findings which do not appear to lack an intelligible justification.
Particular B to this Ground refers to the migration agent’s submission emailed to the Tribunal on 31 May 2018. The concluding section of the submission summarised the Applicant’s claims of holding active political “views antithetic to the instruments of Government and as a result of that he may be regarded as an enemy of the State”. It then goes on to refer to the offence of sedition comprised in s.124A of the Bangladesh Penal Code.
However, in light of the Tribunal’s overall rejection of the Applicant’s claims to fear harm in Bangladesh, there was no necessity for the Tribunal to specifically refer to s.124A of the Bangladesh Penal Code or the offence of sedition, because any factual premise upon which a claim of sedition might be conceivably brought against him in Bangladesh had been rejected by the Tribunal.
Otherwise, this Particular appears to seek merits review of the decision of the Tribunal which is not available in this Court. The fact that the Tribunal did not make any express reference to the offence of sedition is explained by its findings of greater generality in rejecting the Applicant’s claims to fear harm in Bangladesh. Accordingly, Particular B is not made out.
Particular C to this Ground contends that the Tribunal “only considered the Applicant’s claim in relation to his support to the BNP and not about his political opinion against the Awami League”.
Paricular C is also not made out. At [8] of its Decision Record the Tribunal expressly recognised the Applicant’s claim that the Awami League would harm him because of his support for the BNP. At [9] the Tribunal expressly recognised the Applicant’s claim that he had been attacked by people from the Awami League in November 2014 (which it rejected at [35]) and made further reference to his claims about the Awami League at [25], [28], footnote 3 and [32]. However, the Tribunal then at [35] and [36] recorded respectively its rejection of his claims to have suffered harm from the Awami League before he travelled to Great Britain in 2006 and that he had suffered harm from the Awami League because he was a Hindu, a sportsman or involved with an academy in Bangladesh.
In my view the Tribunal did not fail to consider the Applicant’s claims about fear of harm from the Awami League.
Accordingly, Ground 4 is not made out.
Conclusion
The Applicant has failed to establish that the decision of the Tribunal is affected by jurisdictional error and the Amended Application in this Court is to be dismissed.
I certify that the preceding seventy-three (73) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Associate:
Date: 25 June 2020
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