NANJ v Minister for Immigration
[2020] FCCA 210
•18 March 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| NANJ v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 210 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – applicant seeking complementary protection based upon a fear of harm in Bangladesh – applicant not believed – whether the Tribunal overlooked relevant considerations or made irrational factual findings or denied the applicant procedural fairness considered – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.36, 48A, 424AA, 425, 425A |
| Cases cited: ARG15 v Minister for Immigration (2016) 250 FCR 109 |
| Applicant: | NANJ |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1624 of 2017 |
| Judgment of: | Judge Driver |
| Hearing date: | 4 February 2020 |
| Delivered at: | Sydney |
| Delivered on: | 18 March 2020 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitor for the Respondents: | Ms J Xiao of Clayton Utz |
ORDERS
The title of the first respondent is amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
The application filed on 25 May 2017 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1624 of 2017
| NANJ |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 2 May 2017. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
The following statement of background facts is derived from the submissions of the parties.
The applicant is a Bangladeshi citizen who arrived in Australia lawfully on a tourist visa on 16 December 2000. On 12 January 2001, he applied for a protection visa[1] which was refused by a delegate of the Minister on 10 April 2001 and the refusal affirmed by the then Refugee Review Tribunal (RRT) on 12 March 2003.[2] The applicant was unsuccessful on judicial review of the RRT's decision.[3]
[1] Court Book (CB) 7-29
[2] CB 341 at [4]
[3] NANJ v Minister for Immigration [2003] FCA 632; NANJ v Minister for Immigration [2003] FCAFC 270; NANJ v Minister for Immigration [2005] HCA Trans 260
On 3 June 2011, the applicant lodged a second application for a protection visa. That application was deemed to be invalid under s.48A of the Migration Act 1958 (Cth) (Migration Act).[4]
[4] CB 110
On 26 November 2013, the applicant made a further application for a protection visa (current protection visa application) solely on complementary protection grounds.[5] It is not contested that the application was validly made on the authority of the Full Federal Court's decision in SZGIZ v Minister for Immigration[6] following the enactment of s.36(2)(aa) of the Migration Act. The delegate refused the current protection visa application on 19 February 2015[7] and the applicant applied to the Tribunal for review of that decision on 13 March 2015.[8]
[5] CB 30-44
[6] (2013) 212 FCR 235
[7] CB 109-124
[8] CB 125-126
For completeness, the delegate had incorrectly assessed the current protection visa application by reference to the criterion in both ss.36(2)(a) and 36(2)(aa). However, as the Tribunal properly confined its consideration of the applicant's claims to the complementary protection criterion in s.36(2)(aa),[9] the validity of its decision remains unaffected by, and nothing turns upon, any error in the delegate's approach.[10]
[9] CB 342 at [12]-[13]
[10] Minister for Immigration v SZVCH (2016) 244 FCR 366 at [37], [114]
Protection claims
The applicant's claims were detailed in his current protection visa application, the Minister’s Department interview held on 24 June 2014, and his statutory declaration dated 4 November 2016.[11] The applicant claimed to face significant harm in Bangladesh at the hands of his many enemies, which included the Awami League and its associates, government authorities, members of the Naxalite/Communist party, local villagers, and children of his past enemies.
[11] CB 133-135
In summary, the applicant's claim was principally based on actual or imputed political opinion due to his political activism and association with those opposed to the Awami League. Specifically, he claims to have been closely involved in the Jatiya Party since the mid-1980s and that there were many people in Bangladesh who wanted revenge for the violence that he perpetrated during the period in which he held positions of leadership in the party. Since his arrival in Australia, the applicant also claims to have supported anti-Awami League political figures and the 20 Party Alliance before becoming a member of the Australian branch of the Bangladesh Nationalist Party (BNP) in September 2015.
In support of these claims, the applicant produced to the Tribunal various photographs depicting him at meetings of the Australian branch of the BNP as well as a letter confirming his membership and election as a Joint Convener in September 2016.[12] He also called two witnesses from BNP Australia, Messrs Haque and Khondaker, to appear before the Tribunal to give evidence at his scheduled hearing on 24 February 2017.
[12] CB 140, 195-201
Tribunal's decision
The Tribunal accepted at [111] that the applicant had attended a number of political meetings and protests in Australia and that he was a member (and recently appointed 5th Joint Convener) of BNP Australia. However, it found that the applicant became involved with the Australian BNP “in order to enhance his claims for protection” and thus did not genuinely hold any political opinions or allegiances that would cause him harm upon his return.[13]
[13] CB 350 at [58], CB 356-357 at [89], CB 359 at [109]
The Tribunal otherwise found at [91] that the applicant was not a “credible, truthful and reliable witness” and that he had “fabricated claims and concocted evidence to achieve an immigration outcome”. In reaching that conclusion, the Tribunal identified “multiple and cumulative inconsistencies and omissions” in the claims advanced by the applicant which were not overcome by the factors which may have affected his evidence.[14] Accordingly, the Tribunal did “not accept that he suffered the harm or difficulties in his country that he claims for the reasons that he claims”, including that he was ever involved in the Jatiya Party or that he had suffered any harm from members of the Awami League.[15] Having rejected the applicant's claimed political involvement, the Tribunal relied on country information contained in a 2016 DFAT[16] Report which noted that asylum seekers and involuntary returnees were unlikely to be subjected to any adverse attention from the authorities unless they were “high profile individuals who have engaged in political activities outside Bangladesh including people convicted of war crimes”.[17]
[14] CB 354 at [79], CB 357 at [92]-[93]
[15] CB 350 at [58]
[16] Department of Foreign Affairs and Trade
[17] CB 360 at [112]
For these reasons, the Tribunal was not satisfied that there was a real risk that the applicant would suffer significant harm on his return to Bangladesh. It therefore concluded that the applicant did not engage the complementary protection criterion under s.36(2)(aa) of the Migration Act.
The current proceedings
These proceedings began with a show cause application filed on 5 May 2017. The applicant continues to rely upon that application. The grounds in it are:
Ground 1
i.The Tribunal failed in to ask the correct questions whether the applicant is likely to suffer in the area of Jesheore where the applicant actually was born and live before left the county.
ii.The Tribunal accepted to that BNP activists were killed and kidnapped but did not accept applicant heavily involved in BNP Politics and the applicant has real fear of persecution due to protest in Australia to remove SK Hasina from power as she is illegally occupying power.
iii.The Tribunal failed to ask itself where the applicant could be a subject to harm by the AL goons and police detain the applicant illegally if he returns to his county, Bangladesh.
Ground 2
The Tribunal is erred failed and access for Convention nexus/ the complementary protection whether a period of detention would amount to significant harm (s36) serious harm (s91R) and section 5 of the Migration Act and thereby committed jurisdictional error and/ or failed to consider complementary protection. Nonetheless the Tribunal fell into error in that it applied the incorrect test as to whether the applicant likely to suffer harm for the purposes of complementary protection in Jeshore, Bangladesh and applied incorrect test.
i. The Tribunal found that the applicant suffered limited harm by the Noxalist/Communist since 1994-2000.
ii. The Tribunal accepted that the BNP activists and leaders were kidnapped and detained or killed by present AL Regime and it police force.
Ground 3
The Tribunal in making finding that the BNP leaders from Australia and activists were not attacked by the AL goons and police and that the applicant unlikely to be harmed in irrational or illegal thereby fell into jurisdictional error.
i. The Tribunal found that the BNP leaders have right to move freely in the county and out of the county and the applicant is not likely to harmed if returned to Bangladesh.
ii. The Tribunal fell into error as it failed to differentiate that the applicant is not likely to harm by the present AL regime or AL goons if he returns to Bangladesh.
Ground 4
The claims of a particular social/political opinion on the material. The Tribunal erred when it failed to consider the particular social group.
Particulars
1. The risk to the applicant as a member of a particular social group/political opinion (BNP) was not consider at all.
2. The applicant was an elected joint-convener of the BNP branch of Australia but did not consider it at all.
3. The claims arose on the materials.
4. The Tribunal thereby committed jurisdictional error.
(errors in original)
The application is supported by a short affidavit filed with it, which I received. I also have before me as evidence the court book filed on 6 September 2017.
This matter was initially allocated to the docket of Judge Barnes, however, at a callover conducted on 12 March 2019, the matter was transferred to my docket.
Both the applicant and the Minister filed pre-hearing written submissions and also made oral submissions at the trial on 4 February 2020.
Consideration
The applicant’s written submissions diverge somewhat from the grounds in the application. In oral submissions, the applicant was not able to advance any legal arguments, simply drawing attention to his fears of returning to Bangladesh and the length of time he has been in Australia. I agree with the Minister that three broad assertions appear to arise from the grounds in the application and the applicant’s submissions:
a)first, that the Tribunal failed to take into account relevant considerations;
b)secondly, that the Tribunal arrived at illogical or irrational findings of fact; and
c)thirdly, that the applicant was denied procedural fairness.
I agree with the Minister’s submissions concerning the grounds as so simplified.
Did the Tribunal err for failure of consideration?
The applicant identifies various matters which he asserts the Tribunal ought to have considered. Specifically, the applicant asserts that the Tribunal erred by failing to consider:
a)the harm he faced in Jessore District,[18] especially in light of its finding that the applicant "suffered limited harm" at the hands of the Naxalite party in the 1990s;[19]
b)whether he would be unlawfully detained upon his return to Bangladesh[20] and whether a period of detention would constitute significant harm;[21]
c)whether he could be subject to persecution or whether he had a "real fear of persecution";
d)the harm he faced on the basis of his election as a Joint Convener of the Australian branch of the BNP, this being an essential integer of his claim;[22] and
e)the country information he had provided to the Tribunal with respect to political killings in Bangladesh.
[18] Ground 1(i)
[19] Ground 2(i)
[20] Ground 1(iii)
[21] Ground 1(ii)
[22] Ground 4
These grounds misapprehend the reasons for the Tribunal's decision and disclose no failure by the Tribunal properly to consider any issues on the review.
Contrary to the applicant's first assertion, the Tribunal did not accept that he was of any concern or interest in Bangladesh to any of his claimed enemies including the Naxalite or Communist party, nor that he was ever viewed as being opposed to them.[23] In any event, s.36(2)(aa) of the Migration Act refers to the risk of significant harm as a necessary and foreseeable consequence of being removed to a receiving country. A finding that the applicant faced no harm in Jessore District is necessarily subsumed within the Tribunal's conclusion that he would not be placed at any risk of harm "wherever he lives in Bangladesh" upon his return.[24]
[23] CB 358 at [98], CB 359 at [104]
[24] CB 359 at [109], CB 361-362 at [119]; Minister for Immigration v Yusuf (2001) 206 CLR 323 at [91]
As to the second assertion, the risk of unlawful detention (or lack thereof) was also subsumed within the Tribunal's broader finding at [109] that the applicant would not "be killed, harmed, face extortion demands … threatened, harassed, have false case laid against him, be arrested and detained, have to go into hiding, be unable to live a normal life, be traumatised, suffer mentally or face any of the difficulties he claims". Having rejected the existence of any such risk for the applicant, it was therefore unnecessary for the Tribunal to consider whether, or in what circumstances, a period of detention would constitute significant harm.
Nor was the Tribunal required to consider for the purpose of s.36(2)(aa) whether the applicant would be subject to, or had a real fear of, persecution by reference to the requirements of the refugee criterion under the Migration Act. Contrary to the third assertion, the correct (and only) question for the Tribunal in reviewing the current protection visa application was whether the applicant satisfied the complementary protection criterion. This was the question that the Tribunal considered and no error arises in this way.
The fourth assertion is also without basis. Further to country information from DFAT, the Tribunal indicated at [113] and [118] that it had conducted independent research across a wide range of sources and found no country information to support a finding that the Bangladeshi government monitored the Australian BNP. It also relied on the evidence of Mr Khondaker, who indicated that he was able regularly to return to Bangladesh with no difficulty despite holding a similar Joint Convener position within the Australian BNP.[25] These concerns were put to the applicant during the hearing and plainly addressed by the Tribunal in its reasons.
[25] CB 349 at [53], CB 361 at [117]
By the fifth assertion, the applicant contends that the Tribunal had overlooked country information provided to it at and before the hearing. On the contrary, the Tribunal expressly states at [18] that it had considered the "independent information submitted by the applicant's representative on 27 February 2017 as to the treatment of BNP leaders and members" in conducting the review, referring to the collection of publications contained at CB 204-330. The Tribunal also indicated at [48] that it "understood [from the country information] that high profile BNP activists faced difficulty on return to Bangladesh". Critically, however, the Tribunal found at [116] that the applicant did not have a profile that would attract any (adverse) attention from the authorities upon his return. It follows that any country information about political killings in Bangladesh was neither applicable nor of assistance to the applicant in light of this dispositive finding.
Is there a legitimate basis upon which to challenge the Tribunal's findings of fact?
The applicant contends that the Tribunal made illogical or irrational factual findings that (on his characterisation) he was not "heavily involved in BNP Politics" and did not have a "real fear of persecution", even though the Tribunal accepted that the applicant had attended political protests in Australia and that BNP activists had been "killed and kidnapped" by the Awami League regime.[26] The applicant also challenges the finding that Australian BNP leaders and activists could move freely within Bangladesh free from attack by the Awami League as a basis upon which to conclude that the applicant was unlikely to be harmed upon his return.[27]
[26] Grounds 1(ii) and 2(ii), applicant’s submissions at [17.2], [18]
[27] Ground 2, applicant’s submissions at [23]
In short, nothing in the Tribunal's decision reveals illogicality or irrationality in the sense described in Minister for Immigration v SZMDS.[28] Although the Tribunal accepted that high profile BNP activists may face difficulties if they continue to be involved in opposition political activity in Bangladesh, it concluded that the applicant did not face any such risk of harm by reason of his brief involvement with the Australian BNP or attendance at protests in Australia.[29]
[28] (2010) 240 CLR 611
[29] at CB 349 at [48], CB 357 at [94], CB 366 at [111], CB 361 at [116], CB 361-362 at [118]-[119]
The applicant essentially seeks to cavil with the unfavourable credibility findings upon which the Tribunal relied in rejecting the nature and extent of his claimed political involvement. In circumstances where the Tribunal arrived at those credibility findings after consideration of matters that were logically probative of the issue, it was entitled to conclude that the applicant was not a credible witness and that his evidence ought to be rejected.[30] Those findings were based on independent country information[31] as well as inconsistencies the Tribunal observed and inferences it drew, in and from the material which the applicant had put before it.[32] The weight to be attributed to such evidence was a matter for the Tribunal, which was not obliged to refer to every piece of evidence that might have led to a different conclusion.[33]
[30] Re Minister for Immigration; Ex parte Durairajasingham (2000) 168 ALR 407 at 423 [67]; CQG15 v Minister for Immigration (2016) 253 FCR 496 at [36]-[38]; Sellamuthu v Minister for Immigration (1999) 90 FCR 287 at 294
[31] CB 348-349 at [47]-[48], CB 360 at [112]-[113], CB 361 at [118]
[32] CB 350-351 at [64]-[65], CB 351 at [67], CB 352 at [71]-[72], CB 354 at [79], CB 356 at [88]-[89]
[33] Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259, 281-282, 291; NAHI v Minister for Immigration [2004] FCAFC 10 at [11]; ARG15 v Minister for Immigration (2016) 250 FCR 109 at [79].
There is no sense in which the Tribunal's decision (or the findings upon which it was based) can be said to be so devoid of intelligible justification that no rational decision-maker could have come to the same conclusion.[34] The mere assertion of illogicality does not disguise the applicant's failure to identify any reason as to why the Tribunal's findings were not open to be made and the terminology of jurisdictional error does not provide him with a mechanism for impermissible merits review.
[34] See Minister for Immigration v SZMDS (2010) 240 CLR 611 at 649-650 [135]
Was the applicant denied procedural fairness?
There are two components to the applicant's contention of procedural unfairness: first, that the Tribunal's decision was "contorted" because it asked the applicant "irrational, twisted and unrelated questions" at the hearing;[35] and secondly, that the Tribunal confined the applicant to “yes” or “no” responses at the hearing and this amounted to a breach of s.425 of the Migration Act.[36] The first assertion is unparticularised and invites no meaningful response, and the second is factually incorrect. The applicant did not avail himself of the opportunity to file and serve any transcript of the Tribunal hearing or other additional evidence in accordance with procedural orders.
[35] applicant’s submissions at [19]
[36] applicant’s submissions at [28]-[29]
In any event, the applicant was properly invited to appear before the Tribunal in accordance with ss.425 and 425A of the Migration Act.[37] At the applicant's request, the Tribunal postponed the hearing initially scheduled for 14 November 2016.[38] He attended the rescheduled hearing in the presence of his representative and participated with the assistance of an interpreter.[39] Throughout its decision, the Tribunal consistently assessed the deficiencies in the applicant's evidence by reference to the explanations that he gave in response to the Tribunal's questions at the hearing. There is no suggestion that he was confined to binary answers.
[37] CB 127-131
[38] CB 184-190
[39] CB 193 at [7]-[8]
It is also evident from the Tribunal's reasons that it relied heavily on s.424AA at the hearing by providing the applicant with clear particulars of information that it considered would be a reason for affirming the decision under review (including the existence of doubts and inconsistencies arising from the applicant's evidence, which matters the Tribunal was not obliged to put to him under s.424AA)[40] and allowing him a chance to respond to those concerns.[41] Nothing in the Tribunal's conduct of the review indicates that the applicant was deprived of procedural fairness in any way.
[40] Cf. SZBYR v Minister for Immigration (2007) 81 ALJR 1190 at 1196 [18]
[41] CB 341 at [9], CB 349 at [55], CB 352-353 at [73]-[76], CB 354-355 at [81]-[82], CB 356-357 at [88]-[89], CB 360 at [114]
Conclusion
The applicant is unable to demonstrate that the decision of the Tribunal is affected by any jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 18 March 2020
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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