Fzu18 v Minister for Home Affairs
[2019] FCCA 2353
•23 August 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FZU18 v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 2353 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – applicant claiming a fear of harm in Bangladesh – applicant not believed – interlocutory dismissal of show cause application – no arguable case of jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) |
| Cases cited: Minister for Immigration v SZMTA; CQZ15 v Minister for Immigration; BEG15 v Minister for Immigration (2019) 93 ALJR 252 |
| Applicant: | FZU18 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3226 of 2018 |
| Judgment of: | Judge Driver |
| Hearing date: | 23 August 2019 |
| Delivered at: | Sydney |
| Delivered on: | 23 August 2019 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Ms P Durham of Sparke Helmore |
INTERLOCUTORY ORDERS
Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,737 in accordance with Item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3226 of 2018
| FZU18 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from Transcript)
The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 24 October 2018. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa. Background facts concerning the applicant’s claims to protection and the decision of the Tribunal on them are set out in the Minister’s submissions filed on 16 August 2019.
The applicant, a citizen of Bangladesh, arrived in Australia on 9 September 2014 as the holder of a work and holiday (subclass 462) visa.[1]
[1] Court Book (CB) 85
On 7 September 2015, the applicant applied for a protection (subclass XA 866) visa.[2] On 17 March 2016, the delegate refused to grant the visa.[3]
[2] CB 14-38
[3] CB 81-94
On 7 April 2016, the applicant applied to the Tribunal for review of the delegate’s decision.[4] On 30 August 2018, the Tribunal wrote to the applicant and invited him to attend a hearing.[5]
[4] CB 95-96
[5] CB 106
On 19 September 2018, the applicant lodged with the Tribunal written submissions and a number of news articles.[6] The applicant provided further documents to the Tribunal on 2 October 2018.[7]
[6] CB 113- 124
[7] CB 134-148
On 26 September 2018, the applicant appeared before the Tribunal with the assistance of a migration agent and a Bengali interpreter.[8]
[8] CB 127
On 24 October 2018, the Tribunal affirmed the decision under review.[9]
[9] CB 152
Applicant’s claims
The applicant’s claims for protection were set out in a statement attached to his visa application[10] and can be summarised as follows:
a)while at university, the applicant was involved in student politics, particularly with Chatradal, the student wing of the Bangladesh Nationalist Party (BNP). The applicant became the joint secretary, and later the vice-president, of the university Chatradal committee;
b)during the 2008 election, the applicant was working for a BNP candidate after graduating from university. After the formation of the government, Awami League (AL) leaders and activists became revengeful towards the leaders and activists of the BNP. The applicant became the Office Secretary of the Mahanagar committee of Chatradal;
c)the applicant’s family was targeted by AL goons and activists. On a number of occasions, the applicant was attacked by AL goons. In 2013, he became an executive member of Kalihati Thana Jatiyabadi Jubo Dal;
d)a political killing occurred and the AL implicated the applicant’s brother and brought false charges against him;
e)the police intended to arrest the applicant. He decided to leave the country and left from Dhaka airport with the assistance of a friend.
[10] CB 40-42
Tribunal decision
The Tribunal had regard to a certificate issued under s.438 of the Migration Act 1958 (Cth) (Migration Act), and found it was not valid as it did not specify a reason that could form the basis for a claim of public interest immunity.[11] The Tribunal noted that the documents covered were identification and disclosure checklists that had no bearing on the substance of the applicant’s claims.[12] The Tribunal informed the applicant of the existence of the certificate, and its views that the certificate was invalid and the information covered by it irrelevant. The Tribunal recorded that the applicant noted this information without comment.[13]
[11] CB 155-156, [18]-[19]
[12] CB 156, [20]
[13] CB 156, [21]
The Tribunal noted the following concerns about the applicant’s credibility and claimed need for protection:
a)the applicant’s claims were difficult to reconcile with his formal nomination by a senior government official to receive a work and holiday visa, which was a strong indicator that he was not a person of adverse interest on political or other grounds;[14]
b)the applicant’s stable living and working arrangements up to the time of his departure strongly suggested that he did not fear persecution;[15]
c)the applicant’s delays, both in leaving Bangladesh after obtaining his Australian visa and in seeking protection, were striking;[16] and
d)the applicant’s claims and evidence were vague and often unsubstantiated. He provided minimal evidence to support his claim of past political activism, and much of the material submitted was of dubious relevance to his personal circumstances.[17]
[14] CB 156-157, [25]-[31]
[15] CB 157-158, [32]-[34]
[16] CB 158, [35]-[37]
[17] CB 158-159, [39]-[40], [47]
The Tribunal accepted that the applicant had had some contact in recent years with people who identified with the BNP. However, it considered that the applicant’s oral and documentary evidence provided only weak and inconclusive evidence that he had any political interests or position in Bangladesh.[18]
[18] CB161, [54]
Taking into account all of the evidence, the Tribunal found that the applicant and his family may have preferred the BNP, but did not accept that his political opinion went beyond a general preference. It did not accept that this preference, or any family or business links he may have had with BNP persons, led the AL or others to perceive him as a person of adverse interest.[19]
[19] CB 162, [60]-[61]
The Tribunal found the applicant’s claims to have been persistently threatened and targeted by the AL government to be vague, disjointed and often lacking in context. Together with its concerns about the applicant’s conduct in Bangladesh and its finding that he was not in fact a BNP activist, the Tribunal did not accept that the authorities or any AL groups or individuals targeted and harmed the applicant or his family as part of a campaign against them in the period from late 2008 to the applicant’s departure.[20]
[20] CB 163, [63]-[68]
The Tribunal rejected the claim that local authorities fabricated a murder charge against the applicant’s brother. Although it accepted that the president of the Jubo League was murdered in 2012, the Tribunal had significant concerns about the claim in light of its adverse credibility findings and its finding that the applicant’s support for the BNP did not go beyond a general preference. The Tribunal found it difficult to accept that authorities would bring charges against third parties as a means of targeting the applicant, without implicating him directly. Further, the applicant’s evidence that the brother continued to live in their village, operate a poultry farm and get married added to its doubts that he was subject to murder charges. The Tribunal found that the purported police and court documents submitted in support of the claim were problematic, and in light of extensive country information about fraudulent practices in Bangladesh, placed no weight on the documents.[21]
[21] CB 163-164, [69]-[80]
Given the above findings and the Tribunal’s adverse view of the applicant’s credibility, it also did not accept that he knew or suspected that the police intended to arrest him, or that he feared he would be prevented from leaving the airport and therefore took measures to ensure his safe departure.[22]
[22] CB 167, [81]-[82]
The Tribunal accepted that the applicant had attended BNP related functions in Sydney, but found that his political activities in Australia had been limited and undertaken primarily to strengthen his claims.[23]
[23] CB 167, [83]-[85]
In light of country information, the Tribunal was mindful of the volatile political and security situation in Bangladesh. However, it noted that neither the applicant’s own evidence nor the country information went so far as to suggest that the AL pursued or sought to harm all persons who merely supported or preferred the BNP.[24]
[24] CB 168, [88]-[93]
Accordingly, the Tribunal was not satisfied that the applicant would face serious harm on return to Bangladesh either now or in the reasonably foreseeable future, and was not satisfied that he was a person in respect of whom Australia had protection obligations under s.36(2)(a) of the Migration Act.[25]
[25] CB 168-169, [94]-[96]
Turning to the complementary protection criterion, the Tribunal concluded, based on its anterior findings of fact and the relevant country information, that there were no substantial grounds for believing that the applicant, as a Bangladeshi man who favoured the BNP but had no further involvement with the party, would face a real risk of significant harm as a necessary and foreseeable consequence of being removed.[26]
[26] CB 169, [97]-[100])
The present proceedings
These proceedings began with a show cause application filed on 20 November 2018. The applicant continues to rely upon that application. There are two grounds in it:
Ground One
The Administrative Appeals Tribunal has failed to apply the correct test pursuant to Section 36(2)(aa) of the Migration Act 1958 (Cth).
Particulars:
In dealing with the Applicant's claims under Section 36(2)(aa) of the Migration Act 1958 (Cth), the Administrative Appeals Tribunal explicitly failed to disaggregate the statutory formulae under Section 36(2)(aa) of the Act.
Ground Two
The Administrative Appeals Tribunal denied procedural fairness to the applicant.
The application is supported by a short affidavit made by the applicant, which I have received. I also have before me as evidence the court book filed on 23 January 2019 and the affidavit of Danielle Annaliese Hope Stone made on 18 July 2019. Ms Stone’s affidavit relates to the issue of the non-disclosure certificate raised in the Minister’s submissions.
Only the Minister filed hearing submissions in advance of today’s hearing. I invited oral submissions from the applicant this morning. He raised a number of matters. First, he raised concerns about the Tribunal’s credibility finding in relation to his central allegation of a political murder for which his brother was blamed. In my view, the credibility assessment made by the Tribunal on that issue was open to it on the material before it.
Secondly, the applicant expressed concern about the Tribunal’s reasoning in respect of the manner in which the applicant came to Australia. Again, in my view, it was open to the Tribunal to find that the manner in which the applicant travelled to Australia with the support of the Bangladeshi government was inconsistent with his claim that he was of adverse interest to that government.
Thirdly, the applicant referred to the emotion he felt during the Tribunal hearing. The Tribunal noted in its reasons that the applicant became emotional at one point when talking about his family, but that he was able to compose himself relatively quickly. The applicant’s remaining submissions went solely to the merits of the Tribunal decision, which are beyond the scope of this proceeding.
I agree with the Minister’s submissions concerning the grounds of review advanced.
Ground One appears be a contention that the Tribunal conflated the relevant tests under s.36(2)(a) and s.36(2)(aa) of the Migration Act.
There is nothing in the reasons for decision to indicate that the Tribunal applied the incorrect test or that it failed to disaggregate, or to distinguish between, s.36(2)(a) and s.36(2)(aa). Rather, it is clear from the Tribunal’s reasons that it identified the correct legal principles and made separate findings on whether the applicant met the refugee[27] and complementary protection criteria.[28]
[27] CB 168-169, [88]-[96]
[28] CB 169, [97]-[100]
Insofar as this ground takes issue with the Tribunal’s reliance for its conclusions on s.36(2)(aa) on its anterior findings of fact in relation to s.36(2)(a), it discloses no error. The prior factual findings were germane to the Tribunal’s assessment of the applicant’s claims under s.36(2)(aa) and it was not necessary in the circumstances for the Tribunal to engage in a separate consideration of the same factual matters in relation to s.36(2)(aa).[29]
[29] SZSYI v Minister for Immigration [2015] FCA 1276 at [46]- [47]; SZSHF v Minister for Immigration [2014] FCA 237 at [25]-[26]; and SZSGA v Minister for Immigration [2013] FCA 774 at [56]
Further, in assessing the application against s.36(2)(aa), the Tribunal did consider the applicant’s more general concerns about the political violence and poor governance in Bangladesh and that his prospects of employment may be more favourable in Australia. However, the Tribunal was not satisfied that the political and security environment he would face in Bangladesh amounted to a real risk of significant harm for him personally.[30] It is clear that the Tribunal did not misunderstand its task in relation to the application of the criterion under s.36(2)(aa). Ground One does not raise an arguable case for the relief sought.
[30] CB 169, [99]
Ground Two
By Ground Two, the applicant makes a bald assertion that he was denied procedural fairness. Without any particulars, this ground is devoid of substance.
In any event, the evidence before the Court does not reveal any breach of the Tribunal’s obligations under Part 7 Division 4 of the Migration Act.
The applicant was validly invited to attend a hearing pursuant to s.425 of the Migration Act, which he attended and where he gave evidence in support of his claims with the assistance of a Bengali interpreter. There is nothing to suggest that the applicant was denied a meaningful opportunity to give evidence and make arguments before the Tribunal. Further, the information that the Tribunal relied on to dispose of the applicant’s claims consisted of country information and the applicant's own evidence which he had given to the Tribunal for the purposes of the review. Both sets of information were exempt from the obligation in s.424A of the Migration Act.[31] Likewise, the Tribunal's subjective view of the applicant's evidence was not information for the purposes of s.424A. Ground Two does not raise an arguable case for the relief sought.
[31] Section 424A(3) of the Migration Act
The s.438 certificate
As to the s.438 certificate identified by the Minister in his submissions, having perused Ms Stone’s affidavit and the documents annexed to it, I conclude that the Tribunal was clearly right in finding that the certificate was invalid and the documents purportedly covered by it were irrelevant to the review.
The basis for the issue of the certificate was that the documents contain “information relating to an internal working document and business affairs”. As was found by the Tribunal, the certificate was invalid as the specified reason for the non-disclosure was not capable of grounding a claim of public interest immunity.[32]
[32] Minister for Immigration v SZMTA; CQZ15 v Minister for Immigration; BEG15 v Minister for Immigration (2019) 93 ALJR 252 at [19], [39]-[40]
No error arises from the manner in which the Tribunal dealt with the certificate. The Tribunal was correct to find that the certificate was invalid and complied with any procedural fairness obligations it had in respect of the certificate by informing the applicant of the existence of the certificate, advising him that it believed the certificate to be invalid and the documents irrelevant, and allowing him an opportunity to comment.
In any event, the information contained in the documents, objectively evaluated, could not have had any bearing on the Tribunal’s consideration of the applicant’s claims for protection. As such, even if there was a defect in the Tribunal’s approach to the certificate and the documents covered by it, it could not have realistically made a difference to the decision.[33] It follows that no jurisdictional error arises as a result.
[33] SZMTA at [72]
Conclusion
I conclude that the applicant is unable to establish any arguable case of jurisdictional error by the Tribunal. I will order that the application be dismissed pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules).
In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale. When invited to make submissions on that issue, the applicant indicated that he understood but made no submissions.
I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,737 in accordance with Item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 26 August 2019
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Jurisdiction
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Natural Justice
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Procedural Fairness
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Standing
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