SZJDS v Minister for Immigration
[2019] FCCA 3625
•12 December 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZJDS v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 3625 |
| Catchwords: MIGRATION – Application for review of decision of the Administrative Appeals Tribunal – grounds lack particularity – whether the applicant was denied procedural fairness – whether the Tribunal breached its procedural fairness obligations – whether actual or apprehended bias was present – impermissible merits review – no jurisdictional error revealed – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 65, 417, 422B, 423A, 424A, 430, 438, 476 |
| Cases cited: SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71; (2013) 212 FCR 235; (2013) 299 ALR 246; (2013) 138 ALD 1 ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30 Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337; (2000) 75 ALJR 277; (2000) 176 ALR 644; (2000) 63 ALD 577 SZUFQ v Minister for Immigration and Border Protection [2017] FCA 15 Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464 |
| Applicant: | SZJDS |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2114 of 2016 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 13 November 2019 |
| Date of Last Submission: | 13 November 2019 |
| Delivered at: | Sydney |
| Delivered on: | 12 December 2019 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Respondents: | Sparke Helmore |
| Legal Representative for the Respondents: | Ms A. Lucchese |
ORDERS
The name of the first respondent is amended to read “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
The application made on 5 August 2016 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $6800.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2114 of 2016
| SZJDS |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 5 August 2016 seeking review of the decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 9 July 2016, which affirmed the decision of the Minister’s delegate (“the delegate”) made on 2 December 2014, not to grant the applicant a protection visa.
The evidence before the Court is contained in a bundle of relevant documents (“the Court Book” – “CB”, “RE1”), and the affidavit of Lauren Sanderson (“Ms Sanderson”), solicitor, made on 8 August 2018, with annexures.
Background
The applicant is a citizen of Bangladesh (item 20 at CB 14). He arrived in Australia on 7 February 2005 (CB 15) as the holder of a business visa (“working visa holder”) (item 26 at CB 15). He applied for a protection visa on 30 September 2005 (CB 1 to CB 41). This was refused by a delegate of the Minister on 14 December 2005 (CB 44 to CB 60). The applicant applied to the then Refugee Review Tribunal (“the RRT”) for review. The RRT affirmed the decision of the Minister’s delegate on 20 June 2006 (CB 65 to CB 83). The applicant applied for judicial review to the then Federal Magistrates Court. The Court, by consent, set aside the RRT’s decision and remitted the matter to the RRT (differently constituted) (CB 86.3). The differently constituted RRT affirmed the decision not to grant the applicant a protection visa on 14 December 2006 (CB 85 to CB 108).
After the Full Court’s judgment in SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71, the applicant made another application for a protection visa, which was received by the Minister’s department on 14 April 2014 (CB 185 to CB 215). The delegate refused the visa on 2 December 2014 (CB 235 to CB 246). He was not satisfied that the applicant met the complementary protection criterion at s.36(2)(aa) of the Act (CB 246.5).
The Tribunal
The applicant applied for review to the Tribunal on 29 December 2014 (CB 249 – CB 255). He attended a hearing before the Tribunal on 3 June 2016 (CB 262 – CB 266). The Tribunal affirmed the delegate’s decision on 9 July 2016 (CB 269 – CB 287).
As set out above, the applicant has made two applications for a protection visa, has been interviewed and attended hearings before the then RRT and the Tribunal on a number of occasions, and has made a request to the Minister for intervention in his case pursuant to s.417 of the Act.
The Tribunal found that there had been a “very significant change” in the applicant’s claims “between his first and current applications” ([55] at CB 281).
The Minister’s written submissions set out comprehensively, but concisely, these changes. On the evidence before the Court, this is a fair summary (at [5] – [10]):
“5 The applicant broadly claimed to fear persecution from the Bangladesh Nationalist Party (BNP) and Jamaat-e-Islami (JI) activists for reason of his membership of Awami League and involvement in an incident in 1997 where a BNP activist was killed (CB 35-40). The applicant’s particular claims of past harm from BNP and JI have evolved over time.
6 In a statement accompanying the first visa application, the applicant made the following claims (CB 35-41):
6.1 The applicant resided in Mir Sarai. After leaving school, he worked in small jobs, sometimes in restaurants as a cook. He had also been associated with politics. In the course of his employment, the applicant became involved with a hotel workers’ union, the Bangladesh Hotel Sramik League, which he claimed was related to the Awami League. In 1993, he became a member of the Mirsarai branch of the Sramik League. In August 1996, as a result of his membership of the Sramik League, the applicant was physically assaulted by BNP and JI activists (CB 36).
6.2 In 1997, he became the organising secretary of the Mirsarai branch of the Sramik League. He was involved in a strike at a carpet factory on 27 September 1997, where there had been a clash and a BNP activist was killed. A murder case was brought against him and other members of the Sramik League. None of them were responsible for the activist’s death. The applicant had a warrant issued for his arrest and went into hiding (CB 37).
6.3 The applicant decided to leave Bangladesh for fear of his life and went to Abu Dhabi to work. He became a member of the Abu Dhabi branch of the Awami League and feared that he would be targeted due to his political profile if he returned to Bangladesh (CB 38).
6.4 In 2003, the applicant returned to Bangladesh for ten weeks because his father was ill and had passed away. The applicant feared for his life during this visit and stayed at a relative’s house (CB 38).
6.5 In Abu Dhabi, he was introduced to an employee of the Foreign Ministry of the UAE who offered him a position as a cook in his residence in Canberra. While he was working in Canberra, the employer did not pay him his wages and the applicant decided to apply for protection in Australia (CB 38).
7 Appearing before the RRT on 10 May 2006, the applicant claimed that he had joined the Awami League in 1992, that he spent four to six days in hospital after the incident and that he went into hiding in October 1997 (CB 68). Before the RRT on 5 December 2006, the applicant claimed that his only connection with Awami League was through the union (CB 89).
8 In his request for Ministerial Intervention, the applicant claimed that once he arrived in Australia, he had ongoing involvement in the Awami League and Bangabandhu Society of Australia, having been elected to a position on the Executive Committee of the society in 2007 and taking part in a demonstration outside the Bangladeshi High Commission in Canberra in 2007 (CB 114).
9 In his second visa application, the applicant claimed that he had been instructed by Awami League leaders not to co-operate with the police following the incident (CB 202). He further claimed that upon his return to Bangladesh in 2003, the police came looking for him and assaulted his family members when they did not find him (CB 202). The applicant claimed that if he returned to Bangladesh he would be “abducted (for ransom) or murdered” by BNP and JI activists and that he would not receive any assistance from his party (CB 202).
10 Before the Tribunal, the applicant claimed that he had various health problems and that he would suffer degrading treatment or punishment because of his medical problems (CB278, [40]).”
The Minister’s submissions also provided a fair (in light of the evidence) summary of the Tribunal’s reasoning and findings (at [11] – [16]):
“11 The Tribunal confined its consideration to the complementary protection criterion (CB270, [3]).1 Having regard to the applicant’s changing accounts of past harm and inconsistent evidence, the Tribunal did not accept that the applicant had the problems he had claimed as a result of his involvement in the Sramik League, including his claims to have been involved in an incident where a BNP activist was killed (CB 282, [59]). Likewise, it did not accept the inconsistency in his claims was attributable to his having been asked different questions in different ways (CB 282, [59]). The Tribunal noted that the applicant appeared to change his evidence to exaggerate his claims of past harm in Bangladesh (CB 282, [59]). The Tribunal put to the applicant the concerns it had in respect of the applicant’s changing evidence, including that:
11.1 the applicant claimed that he had been charged with the murder of the BNP activist that had been killed in the strike but subsequently claimed that he was an eyewitness to the murder and was only wanted for questioning (CB 282, [59]); and
11.2 the applicant claimed that he had never worked or lived more than seven kilometres from his home in Bangladesh, but had also claimed that he had gone into hiding after the strike and had stayed with relatives up to 20 kilometres away (CB283, [60]).
12 The Tribunal considered that these significant changes in his claims could not be explained by the fact that the events had occurred some 20 years ago (CB 283, [55]) and concluded that he was never of any interest to the authorities (CB 283, [61]). The Tribunal also considered letters provided by the applicant purporting to be from various Sramik League leaders but gave greater weight to the applicant’s inconsistencies in the applicant’s evidence than to the documents (CB 283, [61]).
13 The Tribunal noted that, at the hearing, the applicant had confirmed that he was no longer involved with the Awami League and Bangabandhu Society in Australia. Noting that the applicant had ceased his involvement, the Tribunal did not consider that he would be involved with similar organisations if he were to return (CB 280, [51]; [62]).
14 Having considered the applicant’s claims and DFAT Country Information that noted that the Awami League was currently in power, the Tribunal did not accept that there was a real risk the applicant would suffer significant harm if he were to return to Bangladesh as a result of his past involvement in the Awami League or its associated organisations like the Sramik League or the Bangabandhu Society or because he has since left such organisations (CB 284, [63]).
15 On the basis of the evidence before it, the Tribunal was not satisfied that the applicant faced a real risk of significant harm having been outside Bangladesh for a long time noting that he still has family members living at his home (CB 284, [64]). The Tribunal discussed the definitions of “torture” and “cruel and inhuman punishment” in s.5(1) of the Act and the requirement for any such pain or suffering to be “intentionally inflicted” (CB 284, [65]). On the evidence before it, the Tribunal did not consider that there was an intention on the part of people in Bangladesh to inflict pain or suffering on the applicant by reason of his medical problems (CB 284, [65]).
16 In light of the above, the Tribunal was not satisfied that the applicant satisfied s.36(2)(aa) of the Act and, accordingly, affirmed the decision under review (CB 285, [66]).”
[Footnote Omitted.]
Before the Court
The grounds of the application to the Court are in the following terms:
“1 The Refugee Review Tribunal (the Tribunal) made error of law and failed to exercise the proper procedure in relation to make decision on the review of the applicant's protection visa rejection by the Minister's delegate.
2 The manner in which the tribunal dealt with the application and the applicant was such that it is possible to fairly apprehend that the tribunal did not bring an impartial mind to the resolution of the matter before it.
3 The second respondent has denied the applicant's natural justice and procedural fairness pursuant to s423A and 430(1)(c) and (d) of the Migration Act 1958.
4 The applicant claims that the Tribunal was preoccupied and that was why he was denied natural justice and procedural fairness when the Tribunal formed the view about the applicant before the hearing. Preoccupation is clearly authenticated in its decision that the Tribunal has cut & pasted from the delegate's decision.
5 The applicant was deprived of the natural justice and procedural fairness. The Tribunal did not give neutral view in assessing/reviewing the applicant's claim whose interest has adversely affected by the primary decision. The review authority did not given the applicant opportunity in a correct manner to present his case. The Tribunal did not follow the hearing rule as based on Maxim which is clearly recognized as a denial of procedural fairness.”
[Errors in the Original.]
By orders made by consent by a Registrar of the Court on 27 October 2016, the applicant was given the opportunity to file an amended application, and any evidence by way of affidavit attaching a transcript of the Tribunal hearing. No such documents have been filed. The applicant did file written submissions (see below).
At the final hearing the applicant appeared in person. He was assisted by an interpreter in the Bengali language.
The applicant’s written submissions did not appear to readily relate to the grounds as pleaded. In fact, they appeared to raise additional matters.
Consideration: The Applicant’s Oral Submissions
Before the Court it became clear that the applicant had little knowledge, let alone understanding, of what was stated in the grounds and the written submissions. The applicant’s oral submissions were as follows.
One, this is an “old” matter and he had been interviewed many times over a number of years. He could not remember what he had said from one occasion to the next. This was said to be because he was “sick” and his brain was “not functioning”.
It was ultimately made clear by the applicant that he raised this matter to explain the various inconsistencies in his claims, and as these were ultimately put to the Tribunal at the Tribunal hearing.
Despite opportunity, the applicant has not put a transcript of the Tribunal hearing before the Court. The Tribunal’s account of what occurred reveals ([54] at CB 281):
“54. As referred to above, when [the applicant] was interviewed in relation to his current application he said that he was not in a good state of mind, that he was really depressed and that he did not recall most of the things from the past. At the hearing before me he said that sometimes he did not remember the exact dates because he was half mad although he also referred to the fact that the relevant events had happened almost 20 years previously and that he could not remember them for this reason. As I put to him, however, he referred to these events in his current application made in 2014 so he had obviously remembered them when he had made that application. [The applicant] confirmed that this was correct. As he himself noted, he is unrepresented and he has produced no evidence with regard to any mental health problems he may have although he said that he could produce a doctor's certificate with regard to his physical health problems. Despite his claimed problems with his memory [the applicant] was able to answer my questions about events in Bangladesh and to address the matters which I raised with him. I therefore consider that he was able to participate effectively in the Tribunal hearing.”
The Tribunal was therefore aware, and considered, the applicant’s claims as to his mental state, and the claimed impact on his memory. On the evidence, the Tribunal’s conclusion (as expressed in [54]) was reasonably open to it. There is nothing in the evidence to indicate that the applicant was denied a meaningful opportunity to present his evidence and arguments in relation to the issues in the review.
Two, the grounds of the application were prepared by others. The written submissions were prepared by a “friend of a friend” who was a “law student”. He did not have the assistance of any lawyer.
It is the case that there is no right of legal representation in matters of this type (AMF15 v Minister for Immigration and Border Protection [2016] FCAFC 68 at [51] per Flick, Griffiths and Perry JJ). Nor did the applicant provide any evidence, or even make any attempt, to explain what steps he had taken to obtain the services of a lawyer.
Three, the applicant complained that the Tribunal hearing was short. He said it lasted for 45 minutes to one hour. Further, that the Tribunal made its decision the “next day” after the hearing. When I asked the applicant to explain further, he said that it may have been 2 to 3 days after the hearing, but certainly in the same week.
It appeared that the applicant’s complaint was that the Tribunal had made its decision in haste, and had not given proper consideration to his claims and evidence.
The evidence before the Court reveals that the Tribunal hearing took place on 3 June 2016. The hearing commenced at 1:02pm (CB 263.3) and concluded at 2:39pm (CB 264.3). The Tribunal’s decision was made on 9 July 2016.
The applicant’s submissions to the Court in this regard were not made in any evidentiary context. The evidence that is before the Court reveals that the Tribunal hearing lasted for over 1 and a half hours. The Tribunal’s decision was made just under five weeks later.
The applicant’s complaint fails at the factual level. There is nothing to indicate that the applicant was denied a meaningful opportunity to give his evidence and make his arguments at the hearing before the Tribunal. Nor is there anything to indicate that the Tribunal failed to give proper consideration to the claims and evidence before it, or that it made its decision with undue “haste”.
Consideration: The Grounds of the Application
The grounds of the application to the Court lack explanatory particularity. Even when read with some parts of the applicant’s written submissions, the assertions cannot be readily linked to the Tribunal’s decision.
Ground one asserts that the Tribunal failed to exercise the “proper procedure” in the conduct of the review. No particulars are provided. To the extent that some particularity may be gleaned from the other grounds and the written submissions before the Court, that is addressed below.
For the remainder, ground one of itself lacks particularity so as to be incapable of being understood as a proper assertion of jurisdictional error on the part of the Tribunal. (In any event, see further below).
Ground two asserts that it is possible to apprehend that the Tribunal did not bring an impartial mind to the matter before it. It would appear that this is an assertion that the Tribunal’s conduct in its dealings with the applicant gives rise to an apprehension of bias.
The test for apprehended bias is well established (Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425 at [27] – [28]):
“27. The test for apprehended bias in relation to curial proceedings is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided[7]. That formulation owes much to the fact that court proceedings are held in public. There is some incongruity in formulating a test in terms of "a fair-minded lay observer" when, as is the case with the Tribunal, proceedings are held in private.
28. Perhaps it would be better, in the case of administrative proceedings held in private, to formulate the test for apprehended bias by reference to a hypothetical fair-minded lay person who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias. Whether or not that be the appropriate formulation, there is, in our view, no reason to depart from the objective test of possibility, as distinct from probability, as to what will be done or what might have been done. To do otherwise, would be to risk confusion of apprehended bias with actual bias by requiring substantially the same proof.”
[Footnote Omitted.]
See also recently ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30 (“ALA15”) at [35] and [36] and Ebner v Official Trustee in Bankruptcy [2000] HCA 63 at [6]-[8].
The applicant’s ground lacks particularity as to how the Tribunal acted in such a way as to lead to the apprehension of bias. Despite opportunity, the applicant has not put a transcript of the Tribunal hearing into evidence before the Court. On the evidence that is before the Court, there is nothing to indicate that the Tribunal might not have brought an open mind to the conduct of the hearing. Nor is there any evidence to support such an assertion more broadly from the conduct of the review.
Ground three asserts a denial of procedural fairness pursuant to s.423A of the Act and s.430(1)(c) and (d) of the Act. Again, no particulars are provided. Nor did the applicant otherwise explain this ground before the Court.
Section 423A of the Act at the relevant time was in the following terms:
SECT 423A – How Tribunal is to deal with new claims or evidence
(1) This section applies if, in relation to an application for review of an RRT-reviewable decision (the primary decision) in relation to a protection visa, the applicant:
(a) raises a claim that was not raised in the application before the primary decision was made; or
(b) presents evidence in the application that was not presented in the application before the primary decision was made.
(2) In making a decision on the application, the Tribunal is to draw an inference unfavourable to the credibility of the claim or evidence if the Tribunal is satisfied that the applicant does not have a reasonable explanation why the claim was not raised, or the evidence was not presented, before the primary decision was made.
The Tribunal found that the applicant had made: “…a very significant change in his claims between his first and current applications and that this change cannot be explained…” in the way that the applicant sought to do so at the hearing (see in particular [55] (CB 281), and [56] – [59] (CB 281 to CB 282)).
It is difficult to see how s.423A applies here. As is set out in that section, it relates to changes in claims and evidence as between what is put before the delegate, and what is then put before the Tribunal.
In the current case, what the Tribunal saw as the significant changes were changes between what the applicant put in his first and then second visa applications.
To the extent that the matters discussed at [60] – [64] (CB 283 to CB 284) of the Tribunal’s decision record may fall within the change in evidence as between what the applicant put to the delegate and the Tribunal, no breach of s.423A is indicated. The Tribunal considered the applicant’s explanation for the “change” in his evidence. It gave logical reasons as to why the explanation was not reasonable and why it did not accept it.
In this regard see, for example, at [60] (CB 283):
“60. As I put to [the applicant], I consider that there are other problems with his evidence as well. In his current application he said that he and another person named Kishore Kumar had become targets as a result of their involvement in a strike at the restaurant and that the owners of the restaurant had been hatching plans to kill them. However, as I put to him, he told me that he had only worked in his local area, within two to seven kilometres from his home, and that he had stayed either at his home or in staff rooms at his places of work. After I raised this issue with him he said that when the owner had been very angry and had been threatening to lodge a case against him he had stayed in his relatives' houses but he said that the furthest of his relatives only lived 20 kilometres away. After I put to him that his evidence did not suggest that he had really feared being attacked or killed as a result of his involvement in the strike at the restaurant he said that depending on the circumstances he had stayed away from his own town and he referred to the fact that he also had relatives in Comilla and in Dhaka. As I put to him, I consider that he changed his evidence to make it appear that he had some problems in his home area. I consider that the truth of the matter is that, as he initially said, he never worked or lived more than about seven kilometres from his home in Bangladesh and I consider that this suggests that he did not have the problems which he claims he had in his home area.”
Ground three also asserts that the Tribunal breached its procedural fairness obligations pursuant to s.430(1)(c) and (d) of the Act.
Relevantly, s.430(1) requires the Tribunal to provide a written statement when it makes a decision on the review. Subsections (c) and (d) require the Tribunal to set out its findings of fact on the evidence on which those findings of fact are based.
On the evidence before the Court, the Tribunal complied with this requirement. In any event, even if it had not done so, this would not reveal jurisdictional error in its decision. (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407; (2000) 74 ALJR 405 at [70] and Minister for Immigration and Citizenship v SZLSP [2010] FCAFC 108; (2010) 187 FCR 362 at [85]). In all, ground three is not made out.
Ground four asserts that the applicant was denied procedural fairness because the Tribunal was “preoccupied”, and that is why it formed an adverse view of the applicant at the hearing. This is said to be supported by the claim that the Tribunal “cut and pasted from the delegate’s decision”.
There is no indication, let alone evidence before the Court, that the Tribunal was “preoccupied” at the hearing in the sense that it was biased, and did not bring an open mind to the review or was unduly influenced by the delegate’s decision.
There is no evidence whatsoever, nor does the evidence before the Court indicate, that the Tribunal drafted its decision by simply employing a “cut and paste” from the delegate’s decision. The fact that the Tribunal considered claims that were also before the delegate does not reveal that it was unduly influenced by the delegate’s decision, or simply did a “cut and paste” of the delegate’s decision, in its decision record. In all, ground four is not made out.
Ground five, in essence, is another poor attempt to assert bias on the part of the Tribunal member. Such assertions must be distinctly made and clearly proven (Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 (“Jia Legeng”) at [69] and [127]). It is difficult to reveal bias simply on the Tribunal’s decision record alone (SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 at [38], SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361 at [44]). In the circumstances, this is an attempt at seeking impermissible merits review.
It is not clear from the applicant’s grounds whether the various references to breaches of procedural fairness and natural justice were meant to assert breaches at common law, in addition to breaches of statutory procedural fairness obligations. To the extent that that may be the case, then this is dealt with below.
Consideration: The Applicant’s Written Submissions
The applicant’s written submissions raise a large number of other matters, in addition to the claim of a denial of procedural fairness. These can be categorised, as the Minister has sought to do, as having a specific, and a more generalised focus. In any event, the complaints in the submissions not already addressed above appear to be as follows.
One, the submissions, in part, appear to proceed from the assumption that the Tribunal was obliged to provide procedural fairness at common law. In the current case, s.422B of the Act provides that Part 7 of the Act is the exhaustive statement of the natural justice hearing rule in relation to the matters it deals with (Minister for Immigration and Multicultural Affairs v Lay Lat [2006] FCAFC 61; (2006) 151 FCR 214; Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252).
In that light, the applicant’s references in the submissions to Kioa v West [1985] HCA 81; (1985) 159 CLR 550 do not assist him in to the extent that the applicant seeks to argue breaches of procedural fairness at common law.
Two, the submissions assert a breach of s.424A of the Act. The submissions state that the Tribunal failed to put to him inconsistencies in writing and seek his comments. The submissions ask the Court to refer to a number of authorities from 2001 and 2005 in support of this proposition.
These authorities do not assist the applicant. As the High Court subsequently made clear in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 (“SZBYR”), inconsistencies as found by the Tribunal, and for that matter its doubts about the applicant’s evidence and claims, is not information for the purposes of s.424A of the Act (SZBYR at [17]-[18]).
Three, in what can only be described as a further confused reliance on s.424A of the Act (see the submissions at [4]), the submissions appeared to argue that the Tribunal erred because given his evidence and information about his political involvement, the Tribunal failed to put to him, pursuant to s.424A of the Act, the question as to whether he could safely relocate to another part of his country of nationality.
The answers to this submission are plain. First, the issue of relocation did not arise in this case given that the Tribunal, for reasons given and based on findings reasonably open to it, found that the applicant would not face a real risk of serious or significant harm in any part of Bangladesh. Put another way, the Tribunal made no finding that he would suffer harm in any one location of Bangladesh, such that that relocation became an issue (Randhawa v the Minister of Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437 at 442–443, SZATV v Minister for Immigration and Citizenship [2007] HCA 40; (2007) 233 CLR 18).
Second, the claimed failure to put the issue of relocation to the applicant cannot in any conceivable way be said to be a breach of s.424A of the Act as the submissions state. That section deals with information that the Tribunal considers would be the reason, or a part of the reason, for affirming the delegate’s decision. Any question of relocation (which did not arise in the circumstances of this case) would have been part of the Tribunal’s subjective appraisal of the evidence before it, not information that engaged the obligation in s.424A of the Act.
Four, the submissions appeared to contend that the Tribunal breached s.424A of the Act because it failed to put to the applicant its view (“particular construction”) of independent (country) information to which it had regard.
First, the Tribunal was under no obligation, given the nature of the “independent information”, to put this to the applicant pursuant to s.424A of the Act. This is because it is exempt from the application of s.424A(1) of the Act by operation of s.424A(3)(a) of the Act.
Second, the Tribunal’s subjective appraisal of the country information is not information for the purposes of s.424A of the Act (see SZBYR). The choice of, and weight to be assigned to, such information, is for the Tribunal to determine within the proper exercise of its jurisdiction (NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10, Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40, Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6, SZUFQ v Minister for Immigration and Border Protection [2017] FCA 15 at [62], Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464 at [27] and Aporo v Minister for Immigration and Citizenship [2009] FCAFC 123 at [45]).
Five, the submissions state that the applicant seeks relief because the Tribunal found he was an “incredible witness”. This may be understood as a complaint that the Tribunal found that he was not a credible witness.
On the evidence before the Court the Tribunal made no such express finding. Rather, as the Tribunal put to the applicant at the hearing, it had concerns with many aspects of his evidence, which arose from inconsistencies or implausibilities in his claims and evidence.
Importantly, and it must be said, properly, the Tribunal did not make any adverse finding about the applicant personally, rather, its adverse findings were focused on different aspects of the claims and evidence that he had put before it.
The issue that arises then is whether the Tribunal’s findings that many aspects of the applicant’s claims and evidence were not credible were reasonable in the circumstances presented, and whether the Tribunal gave reasons for these findings probative of the material before it.
At best, the applicant’s submissions in this regard appear to “particularise” (see at [4.1] of the written submissions) this complaint by saying that the Tribunal’s adverse findings that the, in context, credibility of his claims were based on “no evidence”, and made without regard to his claimed mental state and memory loss, and without regard to the: “…relevant question that were available in the primary application”.
This latter “particular”, in the circumstances, appears to be no more than an expression of grievance that the Tribunal did not accept that his claims to fear harm were well founded (see [4.1] and [3] of the written submissions).
At best, and in all, the complaint appears to be that because of these findings, the Tribunal acted unreasonably in the Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 (“Wednesbury”) sense (see [4.1] at (d) and [4.2] at (a) of the written submissions).
The applicant’s submission that the Tribunal’s findings were based on “no evidence” cannot be accepted in light of the evidence before the Court. That evidence was the applicant’s own evidence, and as that was discussed at the Tribunal hearing. Despite opportunity, the applicant has not put any transcript of the Tribunal hearing into evidence before the Court.
On the evidence that is available, the Tribunal’s findings, based on inconsistencies in respect of key elements of the applicant’s claims, arose from the applicant’s own evidence, and his inability to provide a satisfactory response to the concerns about his claims and evidence as put to him by the Tribunal at the hearing (see [55] – [62] at CB 281 to CB 283).
The Tribunal’s impugned findings were made based on evidence. The Tribunal did have regard to the “relevant question”. That is, whether the claims and evidence were credible such that the Tribunal could be satisfied that the applicant met either of the criteria for the grant of the protection visa.
In all, the Tribunal’s findings in this regard were reasonably open to it on what was before it. They were based on rational grounds. They were arrived at with, and arising from, matters that were logically probative to the assessment of the applicant’s credibility (CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 at [36]-[44], ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; (2016) 250 FCR 109 at [83], DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2 at [30], Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407; (2000) 74 ALJR 405).
Further, and contrary to the claim in the submissions, the Tribunal had specific regard to the applicant’s claims as to his “mental state” (he claimed he was “depressed”), and to his claimed difficulty in remembering things from the past.
The Tribunal considered these claims at [54] of its decision record (CB 281). The Tribunal properly understood this claim, in the circumstances presented, as being whether the applicant was able to “participate effectively” in the hearing. The applicant made no claim that he feared harm on return to Bangladesh for reason of his state of mind or memory difficulties.
The Tribunal found that notwithstanding this claimed difficulty, the applicant was still able in his application for the protection visa, made in 2014, to refer to events that was said to have occurred about 20 years earlier. Further, the applicant had produced no evidence in relation to any mental health problems, even in circumstances where he said he could produce a doctor’s certificate in relation to his “physical health problems”.
Even further, the Tribunal found that despite the applicant’s claimed mental state, the applicant was still able to engage meaningfully with the Tribunal’s questions at the hearing.
The Tribunal’s conclusion as to the applicant’s capacity to participate at the hearing, and the reasoning and findings that informed its conclusion, were all reasonably open to the Tribunal on what was before it.
In the circumstances, the applicant’s assertion in the submissions is no more than a complaint that the Tribunal should have found that the inconsistencies and difficulties with his evidence were due to his mental state. Given that the Tribunal’s findings were reasonably open to it, this complaint does not rise above a request for impermissible merits review.
Six, the submissions complain that the Tribunal did not give the applicant a fair opportunity to respond to its findings that documents submitted by the applicant were “inconsistent or not genuine”. The assertion is that the Tribunal did not raise any “question” (concern) that the “documents were fraudulent”.
The applicant’s submissions do not identify the documents that are said to be the subject of this complaint. Nor did the applicant offer any explanation before the Court. On the evidence before the Court, it may be that what the submissions seek to complain about was the Tribunal’s approach to the various letters the applicant produced in support of his claims as to his political activities in Bangladesh, and the claimed past harm that he said he had suffered in this regard.
If this is what the submissions refer to, then the evidence before the Court reveals that the Tribunal made no finding that the documents were not genuine or were fraudulent. Rather, as the Tribunal explained, it gave greater weight to the “problems” that it had with the applicant’s own evidence, which were put to the applicant at the hearing, than what was stated in the letters ([61] at CB 283).
The assessment of the evidence before the Tribunal, and the weight to be assigned to the evidence, is a matter for the Tribunal in the proper exercise of its jurisdiction. The Tribunal’s findings in this regard were reasonably open to it for the reasons it gave. No legal error is indicated here.
Seven, the submissions complain that the Tribunal’s description of the definition of “refugee” and the definition of complementary protection was brief ([6] of the written submissions). It is not clear whether this was said to have occurred at the hearing, or is a reference to what is set out in the Tribunal’s decision record.
If it is a reference to what occurred at the hearing, then, as set out above, the applicant has not provided any evidence by way of a transcript of the Tribunal hearing to support this complaint, nor to contradict the Tribunal’s account of what occurred, which is in evidence before the Court.
If it is a reference to what is in the Tribunal’s decision record, then the Tribunal’s references as to the relevant law do not reveal any error in understanding or application.
Eight, the submissions then, typically and confusingly, make immediate reference to the complaint that the Tribunal did not confirm with the applicant whether he understood the “crucial issues”.
If this is a reference to what occurred at the hearing, the lack of evidence to support this assertion means that this complaint does not reveal jurisdictional error.
If by reference to “crucial issues” the submissions seek to refer to the issues in the review, then on the evidence before the Court, the Tribunal plainly put its concerns relevant to the issues in the review to the applicant at the hearing (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 at [47]). (See [21]-[65] at CB 274 to CB 284).
Nine, the written submissions also complain that the Tribunal did not have any evidence to support its finding that the applicant: “…concocted all of his claims”.
This complaint misunderstands that the Tribunal is not required to provide evidence to rebut claims made before finding that a particular assertion was not made out (Minister for Immigration & Ethnic Affairs v Guo Wei Rong [1997] HCA 22; (1997) 191 CLR 559 (“Guo”)). Nor is it required to uncritically accept the applicant’s evidence and claims (Randhawa v the Minister of Immigration, Local Government & Ethnic Affairs [1994] FCA 1253; (1994) 124 ALR 265 per Beaumont J at [21]).
In conducting the review, the Tribunal is performing an inquisitorial function (Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510 at [187]). This means, amongst other things, that it is for the applicant to provide the material and arguments so as to enable the Tribunal to make findings of fact that would support its reaching the requisite level of satisfaction, such that the visa must be granted (pursuant to s.65 of the Act).
Ten, the written submissions also complain that the Tribunal failed to give the applicant the benefit of the doubt. Drawing also on what is set out immediately above, the Tribunal made findings of fact, absent doubt, about the character of the applicant’s claims and evidence. This is clear given the findings expressed in the Tribunal’s decision record and the reasons given for those findings.
In short, the claims, for a variety of reasons, were found to lack credibility. In these circumstances, the Tribunal was not required to consider whether the applicant should be given the benefit of the doubt, and that his claims should be accepted.
In all, therefore, the applicant’s written submissions do not reveal jurisdictional error in the Tribunal’s decision.
Consideration: The s.438 Certificate
The evidence before the Court reveals that on 2 December 2014 an officer in the Minister’s department issued a certificate pursuant to s.438 of the Act (see at CB 248). The certificate sought to restrict disclosure of certain folios in the Minister’s departmental file relating to the applicant.
The Minister accepts that the certificate is invalid, and further, that its existence was not disclosed to the applicant by the Tribunal.
As the Minister submits, in Minister for Immigration and Border Protection v SZMTA; CQZ15 v Minister for Immigration and Border Protection; BEG15 v Minister for Immigration and Border Protection [2019] HCA 3; (2019) 363 ALR 599 (“SZMTA”) the High Court considered the matter of certificates said to be issued pursuant to s.438 of the Act. In particular, for current purposes, the High Court considered the circumstances in which jurisdictional error would arise where such non-disclosure had occurred.
I agree with the Minister that the High Court held that the mere non-disclosure of the certificate would not be sufficient to establish jurisdictional error. The non-disclosure had to give rise to some “practical injustice” to then reveal jurisdictional error (SZMTA at [38]).
Further, as with respect, the High Court explained at [47] – [48] of SZMTA, it is open to a Court on judicial review, in the appropriate circumstances, to infer that the Tribunal paid no regard to the certificate in the folios to which it was said to relate. Where the Court can so infer:
“[48]…the question that still remains is 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.”
[Emphasis Added.]
There is no reference to the folios which were the subject of the certificate in the Tribunal’s decision record, nor is there any other evidence before the Court to indicate that the Tribunal had any regard to these folios in the conduct of the review. It is reasonable therefore in the circumstances, and in the absence of any such indication, to find that the Tribunal did not have regard to those folios.
The folios are described in the certificate as being folios 227 – 231 and folios 233 – 238 of the Department’s file. The folios are in evidence before the Court as exhibits to the affidavit of Ms Sanderson.
The folios to which the certificate refers involve assessments conducted by officers of the Minister’s department in response to a request that the Minister intervene pursuant to s.417 of the Act and to grant the applicant a visa.
While the documents contain references to, and assessments of, the applicant’s claims to protection, the Tribunal conducted its own independent assessment of those claims.
It is important to note that the Tribunal’s statutory obligation is to review the delegate’s decision (s.414 of the Act). The Tribunal is required to consider all claims expressly made by an applicant, or clearly arising in the circumstances presented (NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263 and Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184).
But these are claims made in the application for the protection visa and during the course of the conduct of the review. Whatever claims the applicant may have made separately in the request for Ministerial intervention were not claims in connection to the protection visa application determined by the delegate, or by the Tribunal on review.
In this context, the Tribunal considered all claims made by the applicant. It made findings of fact arising from what had been put before it (which did not include the folios from the Department’s file concerning the Ministerial intervention). It gave reasons probative of the material before it. There is nothing to indicate that the Tribunal’s decision could realistically have been different if it had disclosed these documents to the applicant. In short, they were not material to the review. No jurisdictional error is indicated.
Conclusion
No jurisdictional error is revealed by the grounds of the application, the written submissions, or otherwise. It is appropriate to dismiss the application. I will make that order.
I certify that the preceding one hundred and three (103) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Associate:
Date: 12 December 2019
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