SZSCU v Minister for Immigration
[2019] FCCA 2542
•16 September 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZSCU v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 2542 |
| Catchwords: MIGRATION – Migration Act 1958 (Cth) – Protection visa application – application for judicial review of decision of Administrative Appeals Tribunal affirming decision of Delegate of the Minister for Immigration not to grant Protection visa to the applicant – applicant alleges Administrative Appeals Tribunal decision affected by bias and relied too heavily on the findings of the Delegate – no bias affecting Administrative Appeals Tribunal decision and hearing before Administrative Appeals Tribunal a hearing de novo and not influenced by decision of the Delegate – jurisdictional error not made out – application for judicial review dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 48A, 414, 415 Evidence Act 1995 (Cth), s.43 |
| Cases cited: AAJ17 v Minister for Immigration and Border Protection [2018] FCA 205 |
| Applicant: | SZSCU |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1995 of 2016 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 19 September 2018 |
| Delivered at: | Sydney |
| Delivered on: | 16 September 2019 |
REPRESENTATION
| The Applicant appeared in person. |
| Counsel for the First Respondent: | Mr J. McGovern |
| Solicitors for the First Respondent: | Clayton Utz |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
The Application filed in this Court on 26 July 2016 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1995 of 2016
| SZSCU |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant is a male citizen of Bangladesh aged 38 years, having been born on 2 December 1980.
By Application filed in this Court on 26 July 2016 he seeks to quash and have re‑determined the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 29 June 2016 which affirmed the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 7 November 2014 refusing to grant to him a Protection (Class XA) (Subclass 866) visa (Protection visa).
Background
The Applicant lodged an application online for a Maritime Crew (Class ZM) (Subclass 988) visa (Maritime visa) on 17 April 2008 for the purposes of entering Australia as a steward aboard the ship named MV Al Suwaikh, being a Kuwait registered livestock bulk carrier. He was granted the Maritime visa on 13 May 2008, which ceased on 14 March 2011 and during that period he entered, left and re-entered Australia on ships regularly.
The Applicant then applied for a further Maritime visa on 10 March 2011, which was granted on 14 March 2011. The Applicant subsequently re-entered Australia on 30 March 2011 in Portland, Victoria, and has not departed Australia since. The vessel the Applicant was then aboard departed Australia from Freemantle in Western Australia on 5 April 2011 without him because, as he claimed, he had deserted the ship.
The Applicant applied for a Protection visa on 12 May 2011 (first Protection visa application) which was refused by a Delegate on 9 March 2012. The complementary protection criterion under s.36(2)(aa) of the Migration Act 1958 (Cth) (the Act) was not introduced until 24 March 2012 and so the Delegate must have only considered the Applicant’s claims under the Refugees Convention criterion. The substance of his claims to protection for the first Protection visa application were:
a)that he had become an adherent of Sufism and the Sufi sect Maizbhandari;
b)that his father had kicked him out of his family home because of him taking up Sufism;
c)that he had left Bangladesh to escape persecution for his religious beliefs; and
d)that he feared that he would be discriminated against and harassed and that his life might even be at risk if he returned to Bangladesh.
The Applicant lodged an application for merits review of that decision with the Refugee Review Tribunal (RRT) on 5 April 2012, which affirmed the Delegate’s decision on 4 October 2012. The Decision Record of the RRT is not in evidence before me. The Applicant then lodged an application for judicial review of the RRT’s decision in this Court, which application was dismissed by his Honour Judge Nicholls on 23 December 2013 in a judgment bearing medium neutral citation [2013] FCCA 2261. That judgment indicates that the RRT did consider, as one would have expected, the Applicant’s claims under the newly introduced complementary protection criterion.
On 3 July 2013 the Full Court of the Federal Court of Australia in SZGIZ v Minister of Immigration and Citizenship (2013) 212 FCR 235 (SZGIZ) held that s.48A of the Act as it then stood did not prevent a person from making another Protection visa application on complementary protection grounds when the earlier application had been determined only on Refugees Convention grounds.
Then on 19 May 2014 the Applicant lodged a second application for a Protection visa (present Protection visa application) being the subject of this proceeding, through his solicitor and registered migration agent (solicitor), under the complementary protection.
By letter dated 18 June 2014 the Department of the Minister (Department) notified the Applicant that the present Protection visa application was valid and would be processed and considered against the relevant criteria.
Claims for Protection
The Applicant’s claims for protection in relation to the present Protection visa application were set out in his statutory declaration dated 23 July 2012 (Statutory Declaration), which at [1] admitted that he had “made a non-genuine claim” in his first Protection visa application (see [5(a) – (d)] above) due to the insistence of his previous migration agent. This Statutory Declaration had been sworn after the Delegate had refused the first Protection visa application and two days before the RRT held its hearing on 25 July 2012. The Statutory Declaration went on to claim in substance as follows:
a)the Applicant was married in 2008, has a daughter and practises Sunni Islam;
b)his father is a supporter of the Jamaat-e-Islami (JI) and in 1994 the Applicant as a student joined its student wing, Islami Chhatra Shibir (ICS), and then the JI itself when he graduated with a Bachelor of Science degree in 2000;
c)the ICS became a banned organisation, but he continued to work for the ICS in his village of Noakhali, for which work he was targeted by Awami League (AL) supporters;
d)in 2000 he participated in a procession protesting the killing of a political colleague, for which participation he was threatened by AL members;
e)in the February 2002 election he was the Centre Secretary of the Election Committee of the JI and was involved in election campaigning to promote JI political views;
f)following that election, he was targeted by an AL member;
g)in 2004 he was employed by a pharmaceutical company formed by the JI, and worked there until January 2007;
h)in May 2008, he joined the Livestock Transport and Trading Company, Kuwait, the operators of the livestock carrier MV Al Shuwaikh;
i)he had shore leave in Bangladesh from February 2009 to July 2009;
j)he had shore leave in Bangladesh from June 2010 to October 2010; and
k)he fears returning to Bangladesh.
For completeness I note that in the summary of the Applicant’s claims appearing in the Decision Record of the Delegate in the present Protection visa application it is recorded that the Applicant’s claims also included:
a)the AL threatened, harassed and physically tortured him and his family;
b)if he returns to Bangladesh, the AL or government authorities such as the Rapid Action Battalion and police will arrest and/or kill him because he was involved in Bangladesh Nationalist Party politics; and
c)the police and government authorities cannot protect him because they will listen to the AL.
Relevant Criteria and Law Applicable to Protection Visa Applications
A convenient summary of the relevant grounds and criteria for the grant of the Protection visa in this proceeding can be found in the judgment of Charlesworth J in AWA15 v Minister for Immigration [2018] FCA 604 at [5] – [7] as follows:
[5] The Minister is to grant a visa if satisfied that the visa applicant satisfies the relevant criteria. If the Minister is not so satisfied, he must refuse to grant the visa: s 65(1) of the Act. For the appellant to qualify for the grant of a protection visa it was necessary for the Minister to be satisfied that (among other things) the appellant fulfilled either the criterion in s 36(2)(a) of the Act (Refugee Criterion) or the criterion in s 36(2)(aa) of the Act (Complementary Protection Criterion).
[6]The Refugee Criterion requires that the Minister be satisfied that the visa applicant is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention, as amended by the Refugees Protocol, namely a person who:
... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.
[7]Relevantly, the Complementary Protection Criterion requires that the visa applicant be a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because:
... the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; ....
Decision of Delegate
I note that the Delegate only had jurisdiction to consider the Protection visa application under the complementary protection criterion: Minister for Immigration and Border Protection v SZVCH (2016) 244 FCR 366. However, in the result the Delegate considered the Applicant’s present Protection visa application under both the Refugees Convention criterion and the complementary protection criterion.
The Applicant attended an interview with the Delegate on 5 November 2014. In the result the Delegate did not accept that the Applicant had a history as a JI activist in Bangladesh as he had claimed, substantially on the basis of his admitted false claims in relation to Sufism and his limited knowledge about the charter of the JI, and was not satisfied that the Applicant was a refugee or that, on the basis of independent country information, there was a real risk that he would be subject to significant harm in Bangladesh.
Accordingly, the Delegate was not satisfied that the Applicant was a person to whom Australia had protection obligations under the Refugees Convention criterion or the complementary protection criterion pursuant to s.36 of the Act and cl.866.221 of Sch.2 to the Migration Regulations 1994 (Cth) (Regulations) and refused to grant the Protection visa to the Applicant.
Decision of Tribunal
The Applicant lodged an application for merits review of the Delegate’s decision with the Tribunal on 4 December 2014 and gave a copy of the Decision Record of the Delegate to the Tribunal at that time.
The Applicant appeared before the Tribunal on 26 May 2016 to give evidence and present arguments, together with his registered migration agent from the office of his solicitor. Two witnesses also gave evidence at the Tribunal hearing on his behalf. The Tribunal gave leave to the Applicant at the hearing to provide a further response in connection with why he had provided misleading information in support of the first Protection visa application, and this he did by sending to the Tribunal a statutory declaration declared on 6 June 2016 dealing with that issue.
At [2] of its Decision Record the Tribunal stated that because of the state of the authorities as at the date of its decision, it would “out of an excess of caution” consider the present Protection visa application on the basis of both the Refugees Convention criterion and the complementary protection criterion, and it proceeded to do so.
In the result the Tribunal affirmed the decision of the Delegate to refuse to grant the Protection visa to the Applicant. As the Grounds of the Applicant in asserting jurisdictional error are confined to a charge of actual bias or apprehension of bias against the Tribunal member, it suffices for present purposes to note that the Tribunal:
a)did not accept that the Applicant had been involved in the JI in Bangladesh or that he ever had any problems as a result of his political opinion in Bangladesh and there was no evidence to suggest that the authorities in Bangladesh had any interest in him at all;
b)found that the Applicant does not in fact fear the authorities in Bangladesh;
c)found that the Applicant would not suffer harm because he deserted his ship in Australia if he were to return to Bangladesh and that independent country information suggested that any penalties in Bangladesh for desertion from a ship have never been enforced;
d)found that the Applicant would not suffer harm as a failed asylum seeker if he were to return to Bangladesh; and
e)found that no problems the Applicant may have because of his claimed mental health issues amounted to “persecution” for the purposes of the Refugees Convention criterion.
Accordingly, the Tribunal found that Australia did not have protection obligations to the Applicant under either the Refugees Convention criterion or the complementary protection criterion.
Grounds of Attack on Tribunal Decision in this Court
The Grounds relied upon by the Applicant are verbatim as follows:
1. I submit that the Second Respondent’s decision is effected by apprehended bias because the member at the AAT has given more weight on the Department of Immigrations findings of the matter and the formulations of the DIBP case.
2. I submit that there is a real possibility of prejudgment in this case for a number of reasons:
a) the member at the AAT obtained and relied on the information from the DIBP’s findings as to my claim rather than an independent research, does demonstrate relevant prejudgment;
b) the fact the member has expressed prior opinion based on the findings from the DIBP demonstrates relevant prejudgment in the matter.
At the hearing in this Court the Applicant made no submissions in support of these Grounds complaining of bias. Rather, he complained of the Tribunal’s rejection of his claim that he would suffer harm in Bangladesh because he had deserted his ship. However, the Tribunal had recognised this claim and comprehensively dealt with and rejected it at [19], [25], [26], [32], [34], [35], [37] – [38], [60] – [62], [67], [77] – [83] and [86] – [88] of its Decision Record and no jurisdictional error is established in connection with the Tribunal’s findings or reasoning in this regard.
Consideration
Grounds 1 and 2
I take these Grounds as alleging breach of procedural fairness in that the decision of the Tribunal is affected by different forms of bias.
The first problem for the Applicant is that he did not tender a transcript of the Tribunal hearing of 26 May 2016, despite having consented at the first return date of his Application in this Court on 16 September 2016 to an order which placed the onus upon him of obtaining such a transcript. On that occasion I advised the Applicant in the following terms:
HIS HONOUR: … Can you interpret this, Ms Maharaj, to the Applicant. In his grounds, he seems to allege bias and it may be that if he wants to pursue that and try to establish that, that he needs to get a copy of the transcript of the tribunal hearing and these orders that he has agreed to provide him with that opportunity and the onus is on him to do so if he wants the transcript. You’ve translated that for him, Ms Maharaj?
Further, the evidence before me establishes that on 26 May 2016, the day of the Tribunal hearing, the Tribunal sent an audio CD recording of the hearing to the solicitor for the Applicant.
Actual or apprehended bias are matters that go to procedural fairness and the denial of procedural fairness on the part of an administrative decision maker such as the Tribunal may result in jurisdictional error justifying an order that a decision be set aside: Re Refugee Review Tribunal & Anor; Ex parte Aala (2000) 204 CLR 82 at 91 [17] per Gaudron and Gummow JJ; Minister for Immigration and Citizenship v Li & Anor (2013) 249 CLR 332 at 357 [48] per Hayne, Kiefel and Bell JJ.
Actual bias was described by Gleeson CJ and Gummow J in Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 532 [72] as follows:
[72]… The state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented.
A finding of actual bias is a grave matter: Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 at 127 per Burchett J. As the New South Wales Court of Appeal said in South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16 at [97]:
[97]The appellant alleges that the Arbitrator displayed actual, not apprehended, bias. A party asserting actual bias on the part of a decision maker carries a heavy onus. The allegation must be “distinctly made and clearly proved.” Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 at [69] per Gleeson CJ and Gummow J and [127] per Kirby J; SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 at [36] per von Doussa J. A finding of actual bias should not be made lightly; cogent evidence is needed: Sun Zhan Qui v Minister for Immigration and Ethnic Affairs [1977] FCA 1488; (1997) 81 FCR 71 at 123 per Wilcox J; a finding of bias is a grave matter: ibid (at 127) per Burchett J.
The test of actual bias in the form of prejudgement requires an assessment of the state of mind of the judge or decision-maker in question: Michael Wilson & Partners Ltd v Nicholls & Ors (2011) 244 CLR 427 (Michael Wilson & Partners) at 437 – 438 [33].
On the other hand, the test for apprehension of bias is whether a fair-minded lay observer might reasonably apprehend that the decision-maker might not bring an impartial mind to the decision making process: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 344 – 345. It is an objective test not requiring an assessment of the state of mind of the judge or decision-maker, as is necessary in an enquiry about actual bias: Michael Wilson & Partners at 437 [32].
In my opinion there is no basis for any claim by the Applicant that he has suffered from actual bias or that there could be any reasonable apprehension of bias in connection with the decision of the Tribunal.
The Tribunal’s Decision Record on its written face does not indicate or demonstrate any prejudgement, actual bias or give rise to any reasonable apprehension of bias on the part of the Tribunal member: SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38]. It appears to me rather to be a reasoned, detailed, comprehensive and meaningful consideration of the claims of the Applicant.
Further, there is no evidence to suggest that the Tribunal member was unduly or improperly influenced or affected by the Delegate’s decision of 7 November 2014 which he was reviewing, or indeed by any earlier findings made during the processing of the first Protection visa application. The hearing before the Tribunal was a hearing de novo: see SAAZ v Minister for Immigration [2002] FCA 791 (SAAZ). The “review” spoken of in s.414(1) of the Act and the powers of the Tribunal granted by s.415 to exercise all the powers and discretions conferred on the primary decision-maker indicate that the review which the Tribunal is directed to undertake is one involving its standing in the shoes of the Delegate in considering afresh the application for a Protection visa: SAAZ [19] – [20] per Mansfield J.
In my opinion it was entirely conventional and legally reasonable for the Tribunal, in considering the present Protection visa application, to have regard to the nature of the claims made and the evidence given by the Applicant in support of his first Protection visa application because it is common for the purposes of criminal and civil litigation for there to be a consideration and comparison of any prior inconsistent statements or evidence of a party (or witness) in the course of the assessment of the trustworthiness and veracity of that party (e.g. see s.43 of the Evidence Act 1995 (Cth)). If that party has earlier said one thing and then subsequently says another thing about the same subject matter, this may, if not minor or trivial, throw suspicion on the accuracy or credibility of that party’s evidence. Likewise, if that party makes a claim later which he or she had not made earlier but which might have been expected to have been made at that earlier point of time.
In this connection in AAJ17 v Minister for Immigration and Border Protection [2018] FCA 205 the Tribunal in its decision had pointed to a number of inconsistencies in important aspects of the applicant’s claims as made at various times and between her accounts and those given by her husband at an earlier Tribunal hearing. The Tribunal also considered that the applicant’s answers were evasive and vague when those inconsistencies were put to her. In that context, Perry J said at [24]:
[24]The existence of such inconsistencies in important aspects of the appellant’s claims, and the failure to explain those inconsistencies in a way that the Tribunal considered was satisfactory, provide a logical and rational basis for the Tribunal’s adverse credibility findings. In this regard, it is well established that the Tribunal is not required to accept, uncritically, any and all claims made by an applicant: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451–452 (Beaumont J); Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 at 596 (Kirby J). Nor does the Tribunal have to possess rebutting evidence before holding that a particular assertion is not established: see eg Selvadurai v Minister for Immigration & Ethnic Affairs (1994) 34 ALD 347 at [7] (Heerey J).
It follows that the claim of bias asserted by the Applicant in his Grounds is not made out.
Conclusion
In my view the Applicant has failed to establish that the decision of the Tribunal was affected by any form of bias and the Application filed in this Court is to be dismissed.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Associate:
Date: 16 September 2019
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