SZRPL v Minister for Immigration
[2013] FCCA 363
•31 May 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZRPL v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 363 |
| Catchwords: PRACTICE & PROCEDURE – Application for adjournment at commencement of final hearing on the basis that the applicant’s case was not prepared – claimed problems of availability of interpretation service that was to be provided by family member and shortage of funds – grounds for adjournment application not made out – adjournment application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 91X, 422B, 430, 486I Migration Amendment (Complementary Protection) Act 2011 |
| Cases cited: Minister for Immigration and Citizenship v SZMOK & Ors (2009) 257 ALR 427 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 |
| Applicant: | SZRPL |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1409 of 2012 |
| Judgment of: | Judge Lloyd-Jones |
| Hearing date: | 11 March 2013 |
| Delivered at: | Sydney |
| Delivered on: | 31 May 2013 |
REPRESENTATION
| Counsel for the Applicant: | Ms S. Haddad |
| Counsel for the First Respondent: | Ms R. Francois |
| Solicitors for the First Respondent: | Ms S. Given of Minter Ellison |
| The Second Respondent: | The Second Respondent filed a submitting notice of appearance |
ORDERS
The Application filed on 27 June 2012 and amended on 5 November 2012 is dismissed.
The Applicant is to pay the First Respondent’s costs and disbursements of and incidental to the Application.
The applicant in these proceedings is not to be identified pursuant to s. 91X of the Migration Act 1958 (Cth) and has been given the pseudonym SZRPL.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1409 of 2012
| SZRPL |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
In accordance with the Court Orders made on 24 July 2012 made by Smith FM, the solicitors for the first respondent, the Minister for Immigration & Citizenship (the “Minister”), were required to file a folder which was to be indexed, labelled and paginated, containing all documents which may be relevant to the hearing. This order was complied with and the volume of material provided is identified as the Court Book (“CB”) and marked Exhibit “A”.
The applicant was granted leave to file and serve an amended application giving complete particulars of each ground of review upon, together with any supporting affidavit material on or before 7 September 2012. The applicant filed an amended application, out of time, on 5 November 2012. The applicant was granted leave to file a further amended application by 14 December 2012. A further amended application was not filed.
This is an application under the Migration Act 1958 (Cth) (the “Migration Act”) seeking judicial review in respect of a decision of the Refugee Review Tribunal (the “Tribunal”), being RRT Case Number 1108727, a decision of Tribunal Member A. Mullin dated 1 June 2012 affirming the decision of a delegate of the first respondent, the Minister, to refuse the grant to the applicant of a Protection (Class XA) visa.
Background
In setting out the following background material I have quoted directly from the Court Book and submissions prepared by Ms Francois, appearing for the Minister. I have not made further attribution as this would make the summary unwieldy. Where this information is extracted from the Court Book, each item contains a reference for that material.
The applicant is a 39 year old male citizen of Bangladesh who arrived in Australia on 18 March 2011 on a visitor class 679 visa (CB 1-3, 34-36). On 29 April 2011 the applicant applied for a Protection (Class XA) visa (CB 1-43).
The applicant claimed to fear persecution in Bangladesh based upon his involvement with the Bangladesh Nationalist Party (the “BNP”) and the failure of effective state protection against Awami League thugs who targeted him and his business partner because of his association with the BNP. The applicant claimed that because he witnessed the murder of his business partner in July 2010 he also would be murdered by the same group of thugs (CB 39-43).
On 29 July 2011, the applicant attended an interview with the delegate of the Minister (CB 46, 66). On 1 August 2011, the delegate refused to grant the applicant a Protection visa (CB 51-53, 63-73). The delegate rejected the applicant’s claims as not being credible (CB 71-72).
On 24 August 2011, the applicant applied to the Tribunal for review of the delegate’s decision (CB 74-102). The applicant attended two hearings before the Tribunal, the first held on 24 January 2012 (CB 118) and the second on 17 April 2012 (CB 139) which was held for the purposes of addressing the new complementary protection issues (CB 162 at [55]). On 1 June 2012, the Tribunal handed down its decision affirming the decision of the delegate to refuse to grant the applicant a Protection visa.
The Tribunal’s Decision
The Tribunal accepted the following aspects of the applicant’s claims:
a)He was a citizen of Bangladesh (CB 163 at [60]);
b)He owned a quarry business in partnership with a person named Jain Uddin (CB 164 at [65]);
c)That business suffered a loss when some of the land in the quarry was seized by a group of persons and the applicant took legal action to obtain its return (CB 164 at [65]);
d)The group who seized the land were in competition with the applicant and Mr Uddin over elections to leadership positions within a local trade body relating to the quarry industry (CB 164 at [65]); and
e)Mr Uddin was murdered in circumstances where the applicant was a witness (CB 164 at [65]).
The Tribunal otherwise comprehensively rejected the applicant’s claims to be the target of serious harm by any person in Bangladesh (CB 164 at [66] - 166 at [75]). Having rejected those claims, the Tribunal was not satisfied that the applicant was a person to whom Australia has protection obligation within the meaning of s.36(2)(a) of the Migration Act or that he met any of the criteria in s.36(2)(aa) of the Migration Act.
Application for Judicial Review
On 27 June 2012, the applicant filed an application for judicial review in this Court. On 5 November 2012, the applicant served an amended application, prepared by counsel. The applicant did not file any written submissions.
In summary the Amended Application pleads eleven factual challenges to the Tribunal’s findings which are said to have cumulatively led the Tribunal into error.
In the amended application filed on 5 November 2012 the applicant sought the following orders:
An order that the decision of the tribunal or Minister be quashed.
A writ of mandamus directed to the tribunal or Minister, requiring them to determine the applicant’s application according to law.
The applicant pleads two grounds:
2. Jurisdictional Error – See Attachment “C”
3. Breach of Natural Justice – See Attachment “C”
The grounds of review are then set out at Attachment “C”, and are pleaded as follows:
1. A number of conclusions were made by the member of the RRT that the applicant considers are incorrect. These conclusions are the following:
a) That the applicant was uncertain as to how many court cases he had lodged against those who are said to have seized his property in a stone quarry. That the applicant found it difficult to list the respondents to these court cases…
b) That there were inconsistencies between the details in the applicant’s protection visa application statement and the details provided to the Refugee Review Tribunal. As a result of these inconsistencies the applicant had trouble identifying the murderers of his business partner…
c) As the applicant’s name was never advanced in any way as an eye witness to the murder of his business partner, he was never questioned by police as an eye witness and he does not intend to volunteer evidence in relation to the matter; he is not seen as a danger in being a witness; and he is not being targeted for this reason…
d) Since the murder of the applicant’s business partner occurred in 2010 there are no links now in 2012 that would pose a threat to the safety of the applicant…
e) As the court cases lodged against those who are said to have seized the applicant’s property has been pursued through lawyers representing all parties for some years no respondents to these cases would take more direct action by killing the applicant…
f) That the applicant did not have a political profile in his area and that his involvement in the BNP was only of a minor nature…
g) That if the applicant’s business partner was one of the leaders of the Awami League in the area and apparently a business man of some importance the police in Sylhet would have took action to investigate his murder…
h) Regardless of whether or not criminality was involved there was no conflict that had any ‘significant political aspect’…
i) That there would have been ample opportunity for members of the Awami League to harm the applicant in the 8 months he was in Bangladesh. The mere fact that the applicant went into hiding during this period would not have prevented anyone from killing him who had the motivation to do so…
j) That because it is claimed that members of the Awami league came into the applicant’s home when he was not at home, stole his motorcycle and vandalised part of his home that they had no serious intention to kill the applicant…
k) That once he received his visa to come to Australia, there was a two month period before he actually arrived in Australia; and because of that two month period he did not have a genuine fear of death or injury…
2. The member outlines the relevant law and the evidence before the tribunal. The member then proceeds to draw the conclusions 1a) to 1k) above. It is not stated how the relevant law that is outlined in the RRT’s decision is applied. It is also not stated how certain aspects of the evidence has led to a certain conclusion. In many instances from 1a) to 1k) the applicant is left to assume and/or speculate how certain evidence had led to a particular conclusion. The member has applied the relevant law on the basis of the conclusions 1a) to 1k) above and as a result the applicant considers that the tribunal has exercised power outside its jurisdiction.
Adjournment Application
Applicant’s Submissions
At the commencement of the scheduled hearing Ms Haddad, appearing for the applicant, indicated to the Court that she was not ready to proceed and was seeking an adjournment of the hearing for approximately two weeks. Ms Haddad indicated that the applicant spoke very little English and that she needed the assistance of the applicant’s cousin to act as an interpreter. On the limited number of occasions that she was able to hold a conference with the applicant and his cousin she had been able to determine that the original application should be amended. The Amended Application in these proceedings was filed on 5 November 2012. Ms Haddad indicated that proper submissions had not been put forward on behalf of the applicant and that the applicant would be severely prejudiced if the hearing were to proceed. A further complication was that the applicant experienced some difficulties in accumulating sufficient funds to pay for the preparation of this matter and funds had only recently become available to enable the preparation to proceed.
Ms Haddad stated that, on the limited number of occasions she had met with the applicant and his cousin, she was able to ascertain the grounds for review, but was unable to identify the details of the evidence that was before the Tribunal at first instance. Ms Haddad sought a period of two weeks to put forward proper submissions referring to the decision at first instance before the Minister’s delegate and the evidence that was before the Tribunal. The Decision Record refers to the Departmental Interview and an audio recording of the hearing before the Tribunal. Ms Haddad indicated that she was yet to listen to that audio interview which contributed to the findings that were made by the Tribunal. In the Decision Record at [26] there is a reference to an interview with the Department of Immigration that provides a summary of that evidence. Ms Haddad stated that she had not yet made an application for access to the recording of the Departmental interview, but that she intended to lodge that application immediately and review the contents as soon as they became available.
Another avenue Ms Haddad wished to pursue was that a Bengali to English/English to Bengali interpreter was not available during the hearing. Ms Haddad wanted the applicant to give evidence under oath. Ms Haddad submitted that, even though the applicant was represented, he intended to give evidence at the hearing of what occurred at the Tribunal and at first instance before the delegate. The applicant filed and served a statement with the Amended Application and it is anticipated that he would give evidence in chief and would be cross-examined.
First Respondent’s Submissions
Ms Francois drew the Court’s attention to the issue that there was no affidavit filed in support of this application for an adjournment, so everything that had been said from the bar table was not able to be tested by the respondent. Ms Francois indicated that she would rely, in her opposition to the requested adjournment, on the High Court decision in Aon Risk Services Australia Ltd v Australian National University (2009) 258 ALR 14 which considered how a court is to exercise the discretion in relation to application for an adjournment, particularly on the day of the hearing. The circumstances of that case were that the Australian National University (“ANU”) was damaged in a fire and it sought to recover the costs of replacing its damaged property from various insurers. On the day of the trial the ANU settled with a number of those insurers and only was going to proceed against Aon Risk Services Australia, the respondent in those proceedings. Aon Risk Services sought an adjournment at the hearing so that it could substantially amend its pleadings. That adjournment was allowed on the basis that there had been some explanation given, which was that during the mediation certain statements had been made that gave rise to an identification of a need to plead certain items and that any prejudice to the respondents could be met by an order for costs. The proposal that costs were a sufficient remedy was rejected by the High Court with all judges agreeing that the exercise of the trial Judge’s discretion had erred.
In the reasons of French CJ in Aon v ANU (supra) at [5], his Honour states:
5. …the applications for adjournment and amendment were not to be considered solely by reference to whether any prejudice to Aon could be compensated by costs. Both the primary judge and the Court of Appeal should have taken into account that, whatever costs are ordered, there is an irreparable element of unfair prejudice in unnecessarily delaying proceedings. Moreover, the time of the court is a publicly funded resource. Inefficiencies in the use of that resource, arising from the vacation or adjournment of trials, are to be taken into account. So too is the need to maintain public confidence in the judicial system. Given its nature, the circumstances in which it was sought, and the lack of a satisfactory explanation for seeking it, the amendment to ANU's statement of claim should not have been allowed…
His Honour emphasised that prior to going into any aspect of the background facts, costs are not a sufficient remedy for any delay and that there is a substantial interest by the parties and the public in the orderly and timely resolution of controversies.
A similar expression is contained in rule 1.03 of the Federal Circuit Court Rules 2001 (Cth).
Then at [25] and [26] of Aon v ANU (supra) French CJ dealt with some of the more detailed considerations:
25. Recognition of the public interest in the administration of civil justice procedures in Australia and the United Kingdom pre-dates the Woolf Report and its attendant reforms. In Dawson v Deputy Commissioner of Taxation, King CJ acknowledged the responsibility of judges to ensure, "so far as possible and subject to overriding considerations of justice", that the limited resources which the State commits to the administration of justice are not wasted by the failure of parties to adhere to trial dates of which they have had proper notice. In a late amendment case considered by the House of Lords in 1987, there was a marked departure from the approach of Bowen LJ in Cropper v Smith. Lord Griffiths required that judges considering amendments weigh in the balance:
"the pressure on the courts caused by the great increase in litigation and the consequent necessity that, in the interests of the whole community, legal business should be conducted efficiently".
The same indulgence could not be shown towards the negligent conduct of litigation as might have been possible in a "more leisured age". That approach was followed by Sheppard J in a revenue case heard in the Federal Court. And in the New South Wales Court of Appeal in GSA Industries, Samuels JA said that:
"the emollient effect of an order for costs as a panacea may now be consigned to the Aladdin's cave which Lord Reid rejected as one of the fairy tales in which we no longer believe."
The approach reflected in these authorities was applied by a majority of the Full Court of the Federal Court in Bomanite Pty Ltd v Slatex Corp Aust Pty Ltd.
26. Sali v SPC Ltd was concerned with a refusal by the Full Court of the Supreme Court of Victoria to grant an application for an adjournment of an appeal. By majority, this Court held that in the exercise of a discretion to refuse or grant an adjournment, the judge of a busy court was entitled to consider "the effect of an adjournment on court resources and the competing claims by litigants in other cases awaiting hearing in the court as well as the interests of the parties". Brennan, Deane and McHugh JJ went on to say:
"What might be perceived as an injustice to a party when considered only in the context of an action between parties may not be so when considered in a context which includes the claims of other litigants and the public interest in achieving the most efficient use of court resources."
Toohey and Gaudron JJ dissented in the result but acknowledged by reference to GSA Industries, that:
"The contemporary approach to court administration has introduced another element into the equation or, more accurately, has put another consideration onto the scales. The view that the conduct of litigation is not merely a matter for the parties but is also one for the court and the need to avoid disruptions in the court's lists with consequent inconvenience to the court and prejudice to the interests of other litigants waiting to be heard are pressing concerns to which a court may have regard." (footnote omitted)
(footnotes omitted)
Then at [30] of Aon v ANU (supra) French CJ set out his conclusions:
30. It might be thought a truism that "case management principles" should not supplant the objective of doing justice between the parties according to law. Accepting that proposition, J L Holdings cannot be taken as authority for the view that waste of public resources and undue delay, with the concomitant strain and uncertainty imposed on litigants, should not be taken into account in the exercise of interlocutory discretions of the kind conferred by r 502. Also to be considered is the potential for loss of public confidence in the legal system which arises where a court is seen to accede to applications made without adequate explanation or justification, whether they be for adjournment, for amendments giving rise to adjournment, or for vacation of fixed trial dates resulting in the resetting of interlocutory processes.
Ms Francois submits that in the matter before this Court there is an adjournment application made on the basis that the applicant’s representative wished to do three things. She wished to have time to put on submissions that properly reference the evidence and the Tribunal’s decision. That is a matter where there is no proper explanation for the delay. The applicant, apparently, has not put Ms Haddad in funds so that she would discharge her duties and do those matters. That is a matter that is entirely the fault of the applicant. Then there are two types of evidence that the applicant wished to put forward, one of which has no apparent relevance to the application as it does not arise in any way, namely the audio recording of the interview between the applicant and an officer of the Department of Immigration. Ms Haddad has not indicated how this audio recording might be relevant or how it gives rise to some arguable ground of review. In light of the grounds of review that have been pleaded, and their apparent lack of any reference to any recognised administrative law principle, such an explanation should be given of how this audio recording might be said to give rise to some arguable ground of review.
The third reason for the adjournment application was that Ms Haddad informed the Court that the applicant himself wished to give evidence. Ms Francois submits that if it is the type of evidence foreshadowed in the amended application, filed on 5 November 2012, then it is apparent that such evidence is utterly irrelevant to the application as that evidence does not go to any of the types of grounds which would normally entitle an applicant to give evidence in this Court. The usual and orthodox method of judicial review is that the Court looks at what was before the Tribunal and does not allow an applicant to supplement their record by further evidence. The exception to this approach occurs in those types of cases that involve fraud on the part of a migration agent.
Consideration of Adjournment Application
The original application in this matter was filed on 27 June 2012. The matter first came before the Court on 24 July 2012 in a First Court Date directions hearing held by his Honour Smith FM. In the Court File on the Report of Listings document prepared on that day the applicant was represented by Mr D. Mihalic of counsel who advised the Court that he was appearing on behalf of Ms S. Haddad of counsel. During those directions, leave was granted to file and serve an amended application including any additional grounds of review with complete particulars of each ground on or before 7 September 2012. On 5 November 2012 an amended application was filed. The original on the Court File indicates that it was prepared by Ms Haddad who executed the document as the applicant’s lawyer and completed the lawyer’s certificate pursuant to s.486I of the Migration Act, certifying that there were reasonable grounds for believing that the Amended Application had reasonable prospects of success. On 13 November 2012, the matter was listed before me for directions to facilitate the allocation of a hearing date, which was set for 11 March 2013 at 10.15am. I record this brief procedural history to highlight the period of time in which Ms Haddad has been involved with the matter.
In oral submissions from the bar table Ms Haddad initially sought a brief adjournment of approximately two to three weeks, in order to undertake a number of steps to prepare for hearing. When I expressed my concern about this adjournment, Ms Haddad willingly conceded that the task could be undertaken in a shorter period of time. One of the tasks she indicated that she needed to undertake was to review the audio recording of the Tribunal hearing, however she confirmed that a formal request for access to a copy of that recording had not yet been made. The contention advanced by Ms Haddad was that the recordings were readily available and could be obtained without delay.
Another argument in support of the adjournment application was that communication with the applicant was difficult because of his lack of English and the reliance upon his cousin who had been engaged to provide translation. A significant factor in the delay in preparation was claimed to be due to the unavailability of the applicant’s cousin to perform this task. I am further concerned whether anything meaningful could actually be achieved by a short adjournment. On Ms Haddad’s own admission this was the first matter she had appeared in within the migration jurisdiction and there were many aspects of the provisions of the Migration Act and associated procedures with which she was not familiar. This also included an acknowledgement of her lack of experience in the Court’s role in judicial review of administrative decisions, but particularly from the Migration and Refugee Review Tribunals. With the knowledge that a final hearing of this nature had been set down for hearing, being a jurisdiction with which Ms Haddad was not familiar, some attempt should have been made to rectify this knowledge gap.
The complementary protection criteria were introduced to the Migration Act in March 2012 which is before this application was filed. The vast majority of all Tribunal decisions that have been made since the introduction of these new provisions have made reference to the operation of the complementary protection provisions subsequent to their introduction. As this is a concept that was unfamiliar to Ms Haddad it is not unreasonable to think that some effort would have been made to familiarise herself of this new criteria that now applied to most Protection visa applications. However, Ms Haddad admitted that she only became aware of these provisions shortly before the hearing.
Another argument advanced by Ms Haddad was that she was undertaking this matter on a direct access basis and was therefore without the assistance of an instructing solicitor. In my preparation for the hearing this matter I have read the Amended Application, the contents of the Court Book, specifically, the Decision Record and the written submissions filed by the Minister. After hearing Ms Haddad’s oral submissions in support of a brief adjournment of approximately two or three weeks, it is not apparent what was hoped to be achieved in the preparation of her client’s case by listening to the audio tape of the Tribunal hearing. The other argument being advanced is that Ms Haddad intends to undertake an intensive familiarisation process with the provisions and operations of the Migration Act. I believe that this is unlikely to be achieved in a short period and is properly something that should be addressed from the time of accepting the brief in this matter. I acknowledge and accept the submissions made by Ms Francois and have formed the view that the application for a brief adjournment should be dismissed and the hearing of the substantive application should proceed as anticipated.
Hearing of the application
After advising the parties that I did not intend to grant an adjournment I informed the parties that I intended to proceed to hear the Amended Application filed on 5 November 2012. Ms Haddad informed the Court that on the basis that she had sought an adjournment, she had not prepared written submissions or read the written submissions prepared on behalf of the Minister. I granted a brief adjournment to enable Ms Haddad to read those submissions and make any oral submissions in support of the Amended Application.
Applicant’s Submissions
At the First Court Date directions hearing before his Honour Smith FM on 24 July 2012, orders were made that the applicant must file and serve a short written outline of submissions and list of authorities seven working days before the hearing. As at the date of the hearing no submissions had been filed, which was confirmed by Ms Haddad.
Ms Haddad indicated that the first issue she wished to address was in respect of complementary protection which the Tribunal Member outlined in [19]-[21] of the Decision Record. The Tribunal wrote to the applicant on 28 March 2012 (CB 132-133) outlining the criteria of the complementary protection provisions and inviting the applicant to a second hearing on 17 April 2012 to address those criteria. The applicant attended and provided further evidence but advised Ms Haddad that the applicant did not understand grounds that were outlined in the letter and it was not explained to him during the Tribunal hearing that the evidence that he was to submit specifically needed to address the criteria or what that criteria was.
Ms Haddad informed the Court that the applicant was intending to give evidence to this Court to corroborate those statements. Ms Haddad submitted that the Tribunal failed to set out the criteria in relation to the evidence that was before it during that hearing. Although the Tribunal sets out the criteria in the Decision Record it then proceeded to consider the evidence before it with no further reference to the complementary protection provisions. The only mention is in the summary at the completion of the Decision Record in that the reasons for which the Tribunal refused a Protection visa under the refugee protection criteria were also applied in respect of the complementary protection criteria.
Ms Haddad contends that the approach of the Tribunal was insufficient as the complementary protection criteria are clearly distinct from the relevant law outlined of the beginning of the judgment. There is little utility in calling them alternative criteria if they are the same as the relevant law outlined in [19]-[21] of the Decision Record. The fact that the evidence was not applied to those criteria by the Tribunal is a significant jurisdictional error. Ms Haddad contends that the applicant was not provided with sufficient explanation as to what the criteria were and, consequently, the applicant did not get the opportunity to put evidence forward on this issue. It was insufficient just to outline these alternative criteria as a part of the law that was before the Tribunal and not actually apply them to the evidence that was before it.
The next issue raised by Ms Haddad related to evidence that was not taken into account by the Tribunal in reaching its findings. Ms Haddad indicated that she wished to take the Court to the evidence that the applicant submits was not taken into account, and then address the findings and the grounds for the application that should have related to that evidence. The Tribunal made a number of credibility findings of which Ground 1(a) is one where the applicant ran a stone quarry while he was living in Bangladesh. He was asked how many cases he personally lodged in respect of the stone quarry. The applicant submits that he misunderstood the question through the interpreter. It was the applicant’s understanding that he was being asked how many cases were lodged altogether, as opposed to those lodged specifically relating to him, as there were numerous people that lodged applications with respect of the stone quarry that he was running as part of his business. His answer, which was inconsistent with the facts before the Tribunal indicated how many cases he personally lodged. This resulted in an adverse credibility finding because the numbers given at the hearing conflicted. On this issue the applicant intended to give evidence in respect of these numbers, but claimed that he was unable to do so because of the lack of an interpreter present at Court.
In respect of Ground 1(b) there is another finding where it states that there are inconsistencies between the applicant’s Protection visa application statement and the details provided at the Tribunal hearing. That conclusion is in the judgment, but nowhere does it actually say what those inconsistencies are. It just simply refers to the statement and says that it is inconsistent. The applicant submits that it was his understanding that the application to the Department was simply to be a brief outline. It was not elaborated upon to the same extent that his application for review to the Tribunal was. This contributed to the Tribunal’s credibility assessment of the applicant overall which was fundamental to his review application. In the Decision Record at [63] (starting at the third last sentence), it states:
…his account at the hearing of the murder of his business partner Jain Uddin was also generally vague and in conflict with some of the details set out in his Protection visa application statement.
(CB 163)
Ms Haddad submits that the details are not mentioned and it is not immediately apparent how they are inconsistent with the details in the visa application. However, this did contribute to the credibility finding at the commencement of the paragraph at [63] where it states:
63. In the present case the Applicant’s account of having suffered harm in Bangladesh is marked by a degree of vagueness and confusion which inevitably casts some doubt over its credibility…
(CB 163)
Ground 1(c) appears in [66] of the Decision Record where it states:
64. The Applicant claims that the fact of his having been an eye- witness to this murder makes him a target for the perpetrators. I note, however, that his name has never been advanced in any way as an eye-witness, that he has never been questioned by the police in this regard and that he quiet clearly does not intend to volunteer evidence in any trial against Jain Uddin’s killers.
(CB 164)
Ms Haddad submits that that finding was incorrect, because it was made without taking the background information of the applicant’s political situation into account. The applicant was claiming that the murderers of his business partner were leaders of an opposition political party to the party which he was a member of. This was deposed to in his statement that was before the Tribunal and those facts were not taken into account from his statement because previous credibility findings were made.
Ms Haddad stated that she wished to draw to the Court’s attention the statement that was put before the Tribunal. There are aspects of that statement that were not taken into account that relate to the Tribunal’s findings. The background information regarding Bangladesh, found at CB 67 contained information that was not taken into account when the findings were made. There were documents showing that reports were made regarding the stone quarry at CB 143-148, as well as reports to police that were not given sufficient weight by the Tribunal when it was making its findings.
Respondent’s Written Submissions
1 (a) Inability to recall details of his court cases
The Minister submits that the applicant claimed that there was some misunderstanding with the interpreter as to the nature of the question he was being asked by the Tribunal. First, there is no evidence to support such an allegation. Secondly, the applicant’s inability to recall such details was clearly relevant to his credit and the Tribunal’s adverse conclusion was open on the evidence. Credibility findings are a matter par excellence for the Tribunal; Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J.
1 (b) Inconsistencies in the accounts of the murder of Mr Uddin
The Minister argues that the applicant alleges that it was procedurally unfair for the Tribunal to compare his written statement that accompanied his application for a Protection visa with the evidence he gave at the Tribunal. The Minister contends that such a submission is plainly misconceived. The use of prior inconsistent statements in assessing credit is entirely orthodox and finds statutory recognition in ss.104(3)(c) and 106(2)(c) of the Evidence Act 1995 (Cth). In addition, it is argued that the Tribunal’s reasons record that the Tribunal put to the applicant the obvious inconsistencies between his statement and his oral evidence (CB 160 at [46]). Accordingly, the suggestion that the Tribunal’s decision does not disclose the inconsistencies is also plainly incorrect.
1 (c) The applicant was not named as an eye witness and so was not targeted for this reason
The Minister submits that the Tribunal’s conclusion that the applicant was not of interest to any group because he had witnessed the murder of Mr Uddin was clearly open on the evidence. The details given in relation to this ground merely attempt to give more evidence.
1 (d) No interest since the murder of Mr Uddin occurred in 2010
The Minister contends that this ground misconceives the Tribunal’s reasons and the details again are an attempt to give further evidence. In addition in the applicant’s written statement he contended the motive was the opposition group’s lack of success in the business association elections (CB 41.2), yet in the Tribunal he could not even recall the respondents to his civil claim in relation to the land (CB 162 at [56] and [57]). The Tribunal’s finding was also clearly open, given the ability of the group to have similarly murdered the applicant if they had wished to do so and the fact they had not done so, despite such a long period of opportunity.
1(e) Lack of any harm in relation to court cases
The Minister submits that this ground of review repeats the allegation that Mr Uddin’s murder was directly linked to the court cases. Accordingly, it suffers from the same factual difficulties identified above in relation to 1(d) as well as attempting to give further evidence.
1(f) No political profile
The Minister submits that this ground of review is odd. It appears to treat the Tribunal’s decision as some sort of pleading whereby the applicant may simply “deny” aspects of the Tribunal’s findings then reasserts his claims. In addition, contrary to the allegations in the details of this ground, the Tribunal’s reasons disclose that the basis of the relevant finding was put to the applicant, being the contents of the letter written by the youth wing of the BNP (CB 162 at [53]) and repeated in the Tribunal’s findings (CB 163 at [64]).
1(g) The investigation of Mr Uddin’s murder
The Minister argues that this ground of review is also factually misconceived (as well as another attempt to give further evidence). The applicant conceded (contrary to his earlier claims) during the Tribunal hearing that the police did take some action in relation to Mr Uddin’s murder (CB 159 at [37]). In any event, the Tribunal’s finding was clearly open to it on the evidence.
1(i) Ample opportunity to harm the applicant
The Minister contends that this ground of review misconstrues the Tribunal’s decision. The Tribunal took into account the manner in which the applicant claimed to have hidden (being staying indoors at home and avoiding meeting his antagonists “face to face”). It was clearly open for the Tribunal to consider that such flimsy attempts at concealment would not have been sufficient to prevent any person who seriously wished harm the applicant from doing so (CB 165 at [71]).
1(j) Vandalism and stealing
The Minister argues that this ground of review is also fundamentally misconceived. The applicant’s home was not “abandoned”, thus leaving it to be vandalised. Rather, the applicant claimed he was hiding inside his home when the murderers arrived and that they were simply put off by his neighbours’ lies about his whereabouts. They did not even attempt to break into him home and just vandalised the exterior and stole his bike (CB 41.5).
1 (k) Delay in coming to Australia
The Minister submits that the applicant’s delay in coming to Australia after he obtained his visa was put to him for comment by the Tribunal during the hearing (CB 161 at [50]) and arose from the photocopied material he had provided to the Department of Immigration (CB 35 and cf s.424A(3)(ba) of the Migration Act). Accordingly, no possible error arises in relation to the Tribunal’s use of this material. Any alleged failure to explore the details of his delay is due to the applicant’s own failure to provide such further information in response to the Tribunal’s questioning.
2. Failure to explain reasons and law.
The Minster argues that the Tribunal’s obligation to give the reasons for its decision is set out in s.430 of the Migration Act. A failure to comply with s.430 is not itself a jurisdictional error: Minister for Immigration and Multicultural Affairs v SBAA [2002] FCAFC 195. Nonetheless, in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, Gleeson CJ cautioned that a failure by the Tribunal to comply with s.430 may have other consequences and stated as [5]:
The Tribunal is required, in setting out its reasons for decision, to set out “the findings on any material questions of fact”. If it does not set out a finding on some question of fact, that will indicate that it made no finding on that matter; and that, in turn, may indicate that the Tribunal did not consider the matter to be material.
The Minister argues that no such consequential error is alleged or apparent in this case.
Consideration
The applicant in these proceedings is represented by Ms Haddad of counsel on a direct access basis. During the initial oral submissions seeking an adjournment of this matter, Ms Haddad informed the Court that this was the first matter that she had appeared in concerning proceedings under the Migration Act. Ms Haddad acknowledged that there were a number of gaps in her knowledge concerning the nature and operation of procedures in this jurisdiction. There was no denial by Ms Haddad that she was not adequately prepared for this hearing, although she had had carriage of the matter for some time prior to the First Court Date directions hearing before Smith FM on 24 July 2012. On that occasion a Mr Mihalic of counsel appeared on behalf of Ms Haddad. His Honour granted leave to file and serve an amended application, including any additional grounds of review with complete particulars of each ground on or before 7 September 2012. An order was also made that the matter be listed for call-over on 13 November 2012 for the purposes of fixing a hearing date before me. This order was made in anticipation of his Honour Smith FM’s planned retirement and the matters in his docket were being progressively transferred to be heard by me.
When the matter came before me on 13 November 2012, Ms Haddad appeared for the applicant and the matter was set down for final hearing on 11 March 2013. An order was sought and consequently made that a further amended application was to be filed by the applicant on or before 14 December 2012. The Court File contains an amended application which was filed on 5 November 2012, which has a Registry notation that its filing occurred out of time. However, at the time of the hearing a further amended application had not been filed or served. Smith FM also made orders that the applicant must file and serve a short written outline of submissions and list of authorities seven days before the hearing. This order was not complied with.
At the directions hearing before me on 13 November 2012, I made an order that any party may request that the proceedings be listed for further directions or for the hearing of an interlocutory application on a date allowing five clear days’ notice to the other party and that a suitable hearing date could be obtained from my associate. A listing of this nature was not requested. The first indication that an adjournment was being sought was when Ms Haddad raised the issue at the commencement of the hearing and this was unsupported by any formal application in a case or supporting affidavit. The Court was informed that Ms Haddad had approached the respondent’s solicitors on the Friday afternoon immediately preceding the scheduled hearing seeking an agreement for an adjournment, but this request was refused.
When I informed the Court that I did not intend to grant an adjournment, Ms Haddad told the Court that she was unprepared for the hearing and, although she had received the written submissions prepared by Ms Francois, she had not yet read that material. I informed the parties that I would briefly adjourn the matter to enable Ms Haddad to read those submissions and present any oral submissions to support the applicant’s application or in response to the respondent’s written submissions.
As indicated above, I was not satisfied in the circumstances of this matter that an adjournment was warranted as the applicant was represented and had been so since shortly after the initial filing of the application commencing these proceedings. The applicant was represented at both of the directions hearings which set down a timetable and the requirements for the conduct of the hearing. Ms Haddad had accepted the responsibility for the carriage of this matter and had held that responsibility for a period of seven months. With the knowledge that this was her first appearance in this jurisdiction, very little appears to have been done in preparation, other than the preparation and filing of the Amended Application. Two explanations have been provided for this inadequate preparation, namely the unavailability of the applicant’s cousin who was providing interpretation together with the applicant’s inability to marshal sufficient resources to fund the preparation. Funds did become available at some time prior to the hearing but the details in respect of the timing of that were not explained to the Court.
After the brief adjournment Ms Haddad made oral submissions, first, in respect of the complementary protection criteria which are not referred to in the pleadings and I will address them in due course. Ms Haddad then proceeded to make oral submissions based on the issues raised in Sub-Grounds 1(a)-(k). A summary of these oral submissions in respect of Sub-Grounds 1(a)-(c) are set out above. After addressing the first three Sub-Grounds the course being taken by Ms Haddad was objected to by Ms Francois on the basis that there was nothing that was being raised by Ms Haddad that could give rise to a ground of review. I agree with that objection as the Tribunal is not required to set out and deal with every aspect of the evidence. For Ms Haddad to succeed she would have to establish the Tribunal’s findings where not open on to it the evidence, that there was insufficient weight given to the evidence, or that there was significant evidence ignored.
Authority for this proposition is found in Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396. In Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 per their Honours French (as he then was), Sackville and Hely JJ, it was held per curiam at [46]-[47]:
46. It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [87]-[97]) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The Tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised `with an eye keenly attuned to error'. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.
47. The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.
The overall thrust of Ms Haddad’s argument is that the applicant considers that evidence that was put by him before the Tribunal was given insufficient weight or ignored, and that constitutes a breach of natural justice. In dealing with these submissions, it is important to note the operation of s.422B of the Migration Act which is an exhaustive statement of the natural justice hearing rule:
Exhaustive statement of natural justice hearing rule
(1) This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.
(2) Sections 416, 437 and 438 and Division 7A, in so far as they relate to this Division, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with.
(3) In applying this Division, the Tribunal must act in a way that is fair and just.
Parliament can exclude common law requirements of procedural fairness in administrative decision making if it makes its intention to do so sufficiently clear. Where a statute expressly states that one or more of the rules of procedural fairness do not apply that is, generally, the end of the matter. In the case of the Migration Act, legislation was passed in 2002 amending Part 7, Division 4 of the Migration Act in relation to the conduct of review proceedings before the Refugee Review Tribunal with the introduction of s.422B(1) and (2). This section was further modified by the introduction of s.422B(3) in 2007 which is concerned with ensuring that the procedural requirements of that Division are applied fairly and justly.
The operation of this provision is explained in Minister for Immigration and Citizenship v SZMOK & Ors (2009) 257 ALR 427 per Emmett, Kenny and Jacobson JJ at [8]-[13] where their Honours held:
Against that background, Division 4 of Part 7 deals with the conduct of a review of an RRT-Reviewable Decision by the Tribunal. Division 4 consists of ss 422B to 429A. Section 422B is of particular significance in the appeal. Under s 422B(1), Division 4 is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with. Under s 422B(3), the Tribunal must act in a way that is fair and just in applying Division 4.
9 The natural justice hearing rule referred to in s 422B(1) reflects those aspects of the requirements of procedural fairness that relate to the presentation of an applicant’s claims to the Tribunal. The statement that Division 4 is to be taken to be exhaustive of those aspects of the requirements of procedural fairness in relation to the matters it deals with imports a somewhat more specific limitation upon the scope of procedural fairness than might have been the case by a global reference to the conduct of reviews by the Tribunal. Thus, the matters that Division 4 deals with are to be identified by reference to its particular provisions and not by reference to its general subject matter (see WAJR v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 106; (2004) 204 ALR 624 at [57]).
10 Section 422B was intended to overcome the effect of the decision of the High Court in Re Minister for Immigration & Multicultural Affairs; Ex parte Miah [2001] HCA 22; (2001) 206 CLR 57. That is to say, Division 4 was intended to provide comprehensive procedural codes that contain detailed provisions for procedural fairness. However, these codes exclude the common law natural justice hearing rule in relation to the matters dealt with in Division 4. On the other hand, those aspects of the common law of natural justice that are not dealt with by Division 4, such as the bias rule, are not excluded (see Minister for Immigration & Multicultural & Indigenous Affairs v Lat (2006) 151 FCR 214 at [64]-[67]).
11 It is necessary, therefore, to identify the matters with which Division 4 deals. Those matters may be summarised, relevantly, as follows:
• An applicant for review may provide a statutory declaration and written arguments – s 423.
• In conducting the review, the Tribunal may get any information that it considers relevant and may invite a person to give additional information – s 424.
• The Tribunal must give to the applicant for review, by a method specified in the Act, clear particulars of certain information that the Tribunal considers would be the reason for affirming the decision under review – s 424A.
• If a person is invited under s 424 to give additional information or invited under s 424A to comment on, or respond to, information, the invitation must specify the way in which the information, comments or response are to be given – s 424B.
• Unless the Tribunal considers that it should decide the review in the applicant’s favour, or the applicant consents to the Tribunal deciding the review without the applicant appearing before it, the Tribunal must invite the applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review – s 425.
• If the applicant is to be invited to appear before the Tribunal, the Tribunal must give the applicant, by one of the methods specified in the Act, notice of the time and place for the hearing and the notice must inform the applicant that he or she is invited to appear to give evidence and may request the Tribunal to obtain oral evidence from another person - ss 425A and 426.
• For the purposes of a review, the Tribunal may take evidence on oath or affirmation, adjourn the review from time to time, give information to the applicant and require the Secretary of the Tribunal to arrange for the conducting of investigations and medical examinations – s 427.
• The hearing of an application for review must be in private – s 429.
• The Tribunal may allow the appearance by the applicant, or the giving of evidence by the applicant, or any other person, by telephone, closed circuit television or any other means of communication – s 429A.
12 The effect of s 422B is that, in relation to the matters thus summarised, Division 4 is an exhaustive statement of the requirements of procedural fairness. Further, in exercising the powers and performing the duties described in Division 4, the Tribunal must act in a way that is fair and just.
13 The extent, if any, to which the introduction by s 422B(3) of an obligation for the Tribunal to act in a way that is fair and just impinges on the operation of s 422B(1) is not entirely clear. Section 422B(3) was introduced by the Migration Amendment (Review Provisions) Act 2007 (Cth) (the Amending Act). The Explanatory Memorandum published in connection with the Bill for the Amending Act stated that the proposed s 422B(3) would ensure that, in carrying out the procedures and requirements set out in Division 4, which would continue to be an exhaustive statement of the natural justice hearing rule, the Tribunal must do so in a way that is fair and just. The Explanatory Memorandum said that that would complement s 420(1) of the Act.
However, it should be noted that s.422B(3) does not exist in a vacuum and can operate only by reference to one or other of the provisions of Division 4 of Part 7. Section 422B(3) may affect, in a procedural sense, how another provision of Division 4 of Part 7 of the Act may or ought to be applied in a given situation and how such procedural fairness obligations are discharged, but it cannot affect the Tribunal’s principal obligation under such a provision or a proper construction or operation of such a provision. Section 422B(3) only operates in connection with existing procedural fairness obligations and does not expand a tribunal’s duties or create new ones under the provisions of Division 4, Part 7 of the Migration Act.
In the Amended Application within Ground 1, eleven examples have been pleaded which claim that procedural fairness has not been applied, given insufficient weight or particular pieces of evidence ignored. Ms Francois, in her written submissions which are reproduced above at [40]-[49], has accurately and correctly addressed each of these issues in respect of this claim. Ms Francois’ submissions also refer to the attempt by Ms Haddad to introduce new evidence that was not put before the Tribunal. The attempt to introduce new evidence is asking this Court to conduct a merits review.
A merits review is an assessment of the appropriateness of a decision, as distinct from a judicial review which focuses on the lawfulness of the earlier decision. A judicial review asks whether the decision-maker was authorised to do what he did under the prevailing law or whether the actual decision was the best decision which could have been made in the circumstances. A merits review provides a complete rehearsal of all of the issues relevant to the application. The reviewing body considers the relevant material as well as any new evidence and then makes its decision about the merits of the application unfettered by the earlier decision or the reasons of the decision-maker of the earlier decision. A merits review determines a correct preferable decision in all circumstances. As it has been explained in numerous occasions and particularly by his Honour Allsop J (as he then was) in SZDFO v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1192 and NARE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 554 and also by the Full Court in NAAH v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 354 the Court cannot engage in merits review and is not part of its tasks to do so.
The other main issue raised by Ms Haddad in her oral submissions relates to s.36(2)(aa) and refers to the complementary protection criteria provisions in the Migration Act. Significantly, this ground was not raised in the Amended Application. However, as I have indicated earlier in this decision although the applicant is represented by Counsel, there have been serious deficiencies in the preparation of this matter for hearing and it is the applicant who has been seriously disadvantaged by these circumstances. Consequently, it is my intention to consider issues raised orally, but not pleaded by Ms Haddad in relation to the operation and application of this provision of the Migration Act.
The thrust of Ms Haddad’s argument is that the applicant was not provided with sufficient explanation as to what the relevant criteria were and, consequently, the applicant did not get the opportunity to put evidence before the Tribunal on this issue. As indicated elsewhere in this decision, the Tribunal wrote to the applicant on 28 March 2012 (CB 132-133), inviting him to appear before the Tribunal and allowing the applicant to provide any additional evidence and submissions in relation to the new alternative criteria for the grant of a Protection visa, subject to the new provisions implemented by the Migration Amendment (Complementary Protection) Act 2011 (Cth). That letter clearly states that this new legislation provides that an applicant seeking a Protection visa who has been found not to be a refugee may, nevertheless, be a person to whom Australia has protection obligations on the complementary protection grounds. This invitation was issued after the initial Tribunal hearing that was held on 24 January 2012.
The contents of that letter clearly state the purpose of this second hearing was to address the following issue:
Under the new legislation a person may qualify for a Protection visa where there are substantial grounds for believing that, as a necessary and foreseeable consequence of his or her removal from Australia to a receiving country, there is a real risk he or she will suffer significant harm.
The legislation provides that a person would suffer ‘significant harm’ if:
a) He or she will be arbitrarily derived of their life; or
b) The death penalty will be carried; or
c) He or she will be subject to torture; or
d) He or she will be subject to cruel of inhumane treatment or punishment; or
e) He or she will be subjected to degrading treatment or punishment.
As the Tribunal has not made a decision about your claims for protection you are invited to provide information, in addition to new information you have already provided, as to whether you meet the alternative complementary protection criteria.
You are invited to provide this information, and present arguments, at resumed hearing. Alternatively, if you do not wish to attend the hearing, you may provide this additional information, in writing, to the Tribunal by 17 April 2012.
The Decision Record at [55]-[59] records the details of the hearing held on 17 April 2012. The Tribunal Member refers to a photocopy of a newspaper article submitted by the applicant which dealt with corruption, extortion and violence in a quarry in Sylhet and included the identities of two individuals who the applicant claimed were involved in these activities. It was claimed that these two individuals were motivated to seize properties illegally and by force in circumstances similar to what had occurred in the case of the applicant.
The major elements of the applicant’s claims for protection are summarised in the “Findings and Reasons” at [70]-[71] where the Tribunal states:
In summary, I accept that the Applicant may have faced opposition from the group within the quarrying industry in Sylhet and, as noted, that this may have extended to the illegal seizure of some of his land. I accept that he and others may have been involved in brawling on one occasion in the context of differences within the trade association. I accept that his partner Jain Uddin was murdered, and that his murderers may have included members of the opposing group. I conclude that this conflict was based on simple commercial rivalry. Whether or not criminality was also involved, I am not satisfied that the conflict had any significant political aspect, or that the harm which the Applicant claims to have feared from the opposing group can be said to have been motivated in a Convention ground of particular opinion…
71. I have considered, but do not accept, the Applicant’s claim that the group which opposes him tends to cause him serious harm. As I noted, I do not accept that this group fear him as a witness against him or that they are sufficiently angered to harm him because of the civil litigation he has taken against him or his links to Jain Uddin. I consider that if they had, in fact, intended to do him any harm they would have had ample opportunity to do so during the eight months between the killing of Jain Uddin, in July 2010 and his departure from Bangladesh in March 2011. During the whole of this period he was, by his account, living with his family in his own home in Sylhet…
(CB 164-165)
The findings of the Tribunal in respect of all of the material presented by the applicant and summarised above do not fall within the categories identified in the complementary protection criteria. The argument advanced on behalf of the applicant was that the applicant was not provided with sufficient explanation as to what the criteria were and, consequently, the applicant was not given the opportunity to put evidence before the Tribunal on the aspects raised by the complementary protection criteria.
There have been a number of decisions of this Court to the effect that consideration of the complementary protection provisions is a mandatory matter and that a failure to do so would constitute jurisdictional error on the part of the Tribunal. In this matter I am of the view that the provisions were considered as there is specific reference to the criteria at [19]-[21]. Although that reference is short, that does not in itself indicate that the matter was ignored. Significantly, the initial hearing held on 24 January 2012 occurred before the introduction of these provisions, however, the Tribunal invited the applicant to a second hearing convened specifically to address any issues raised by these provisions, with the provisions being set out in that correspondence.
When considering a protection claim made by an applicant it is possible for the Tribunal to come to a conclusion that while the persecution an applicant fears is not Convention related, it is persecution that, nonetheless, will continue should they be returned to their country of citizenship. It is that type of persecution that s.36(2)(aa) and the other sections relating to complementary protection seek to prevent. The protection claims made by the applicant were found by the Tribunal to be claims which arose under the Refugees Convention, but no other claim was made. The Tribunal found that the applicant did not have a well-founded fear of persecution should he be returned to Bangladesh in the reasonably foreseeable future. Having come to that conclusion there was nothing that the Tribunal had to consider in relation to complementary protection. This is clearly stated at [75] of the Decision Record.
In this matter the applicant made a series of claims which were Convention related and the Tribunal, as it was entitled to, came to a conclusion that if it did not accept any of these as it simply did not believe the applicant. The Tribunal concluded that any opposition faced by the applicant from commercial rivals in his quarrying business did not have a basis in political opinion or in any other Convention ground. Further, the Tribunal was not satisfied the applicant faced serious harm from these sources for any reason. In circumstances where the Tribunal had formed the view that the applicant was not in any danger should he return, he would not be a person to whom Australia owed protection obligations under the complementary protection provisions because it could not be said that there was a real risk that he would suffer significant harm as a result of being removed from Australia.
I am satisfied that the grounds of review contained in the Amended Application cannot be sustained and the provisions of the complementary protection criteria do not provide the applicant with an avenue for protection. Consequently, the Amended Application should be dismissed with costs awarded to the Minister.
I certify that the preceding seventy-four (74) paragraphs are a true copy of the reasons for judgment of Judge Lloyd-Jones
Date: 31 May 2013
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