SZUUO v Minister for Immigration

[2016] FCCA 849

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUUO v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 849

Catchwords:
MIGRATION – Review of decision by Administrative Appeals Tribunal – whether the Tribunal’s decision affected by jurisdictional error – whether the Tribunal failed to consider a separate claim for harm made by the applicant based on imputed political opinion – whether the Tribunal failed to assess the risk of harm to the applicant based on his political profile – whether the Tribunal failed to consider the escalating political violence in Bangladesh – whether the Tribunal failed to take into account relevant considerations – whether the Tribunal conducted the hearing in a manner that denied the applicant procedural fairness – whether the Tribunal’s decision is affected by bias – whether the Tribunal took into account relevant country information provided by the applicant – whether the Tribunal failed to consider the applicant’s claims under the complementary protection criterion – no jurisdictional error – application dismissed.

Legislation:
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5, 31, 36, 65, 411, 422B, 424A, 424AA, 425, 474
Migration Regulations 1994 (Cth), reg.2.01

Cases Cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
NAFF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1
Minister for Immigration and Citizenship v SZNVW (2012) 183 FCD 575
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259
Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51
SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507
Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425
NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264
Minister for Immigration and Citizenship v SZQBR (2013) 210 FCR 505
SZSHK v Minister for Immigration and Border Protection (2013) 138 ALD 26
SZUYK v Minister for Immigration and Border Protection [2016] FCA 216
Muin v Refugee Review Tribunal (2002) 76 ALJR 966

Applicant: SZUUO

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2057 of 2014

Judgment of: Judge Emmett

Hearing date: 14 April 2016

Date of Last Submission: 14 April 2016

Delivered at: Sydney

Delivered on: 14 April 2016

REPRESENTATION

The Applicant appeared in person with the assistance of a Bengali interpreter.

Solicitor for the Respondents: Mr Julian Pinder
(Minter Ellison Lawyers)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2057 of 2014

SZUUO

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal dated 25 June 2014 and handed down on 26 June 2014 (“the Tribunal”).

2. The applicant claims to be a citizen of the Bangladesh and a supporter of the Bangladesh Nationalist Party (“the BNP”), who fears harm from the Awami League and its supporters in Bangladesh.

3. Prior to considering the proceeding before this Court, these Reasons provide the relevant procedural background, a summary of the legislative framework, a summary of the applicant’s claims in support of a protection visa, a summary of the decision of a delegate of the first respondent (“the Delegate”), and a summary of the Tribunal’s review and decision.

Background

1. On 14 October 2012, the applicant arrived in Australia on a visitor visa, having departed legally from Bangladesh on a passport issued in another name.

2. On 11 January 2013, the applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”).

3. On 11 November 2013, the Delegate refused the applicant’s application for a protection visa.

4. On 27 November 2013, the applicant lodged an application for review of the Delegate’s decision by the Tribunal.

5. On 25 June 2014, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.

6. On 23 July 2014, the applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.

Legislative framework

1. Pursuant to s.65(1) of the Act, if satisfied of a number of matters, the first respondent may grant a visa. Section 31(1) of the Act provides that there are to be prescribed classes of visa. One class of visa is a Protection (Class XA) visa (reg.2.01 of the Migration Regulations 1994 (Cth) (“the Regulations”) and Schedule 1 to the Regulations).

2. Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia in respect of whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).

3. Article 1A(2) of the Convention relevantly defines a refugee as a person who:

   “owing to a 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, 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, is unable or, owing to such fear, is unwilling to return to it.”

4. Section 36(2)(aa) of the Act provides that:

   “(2)  A criterion for a protection visa is that the Applicant for the visa is:

   (aa) a non-citizen in Australia (other than a citizen mentioned in paragraph (a)) 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.”

5. Sections 36(2A) and 5 of the Act defines “significant harm.”

6. Under s.411(1)(c) of the Act, a decision to refuse to grant a protection visa is a decision which may be reviewed by the second respondent.

7. The requirements of the natural justice hearing rule are exhaustively stated in Division 4 of Part 7 of the Act (s.422B(1) of the Act). Division 4 Part 7 includes ss.424A and 425, which provide that:

   “424A  Information and invitation given in writing by Tribunal

   (1) Subject to subsections (2A) and (3), the Tribunal must:

   (a) give to the Applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review.

   425  Tribunal must invite Applicant to appear

   (1) the Tribunal must invite the Applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.”

8. Section 424AA of the Act permits the Tribunal to give orally to an applicant clear particulars of any information that the Tribunal considers would be the reason or part of the reason for affirming the decision under review. The Tribunal must ensure that the applicant understands the relevance of the information and the consequences of any information being relied upon. The Tribunal must also invite the applicant to comment on or respond to the information and advise the applicant that the applicant may seek additional time to comment on or respond to the information.

9. Under s.474(2) of the Act, a decision of the second respondent is a “privative clause decision”. Under s.474(1)(a) of the Act, a privative clause decision is final and conclusive.

10. However, a purported decision of the second respondent which is affected by jurisdictional error is not a decision which is made under the Act and therefore is not a privative clause decision (see Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476).

The applicant’s application for a protection visa

1. The applicant provided a statement in support of his protection visa application in which he stated:

   a)He and his family are supporters the BNP;

   b)In 2009, he became the Sports Secretary of Jatiyatabadi Jubo Dal of Sylhet District;

   c)During elections, he offered financial and logistical support to BNP candidates;

   d)In April 2012, his leader was abducted and he participated in a demonstration against that abduction;

   e)Awami League miscreants often extorted money from him;

   f)In May 2012, his shop was looted and burnt by Awami League miscreants;

   g)After that incident, his father’s friend obtained a passport in another name for him to travel to Australia;

   h)Since the Awami League is in power, he would not be offered adequate State protection; and

   i)Even if he relocates to other parts of Bangladesh, he would be harmed due to his continuous support for the BNP.

The Delegate’s decision

1. On 30 May 2013, the applicant attended an interview with the Delegate.

2. On 11 June 2013, the applicant provided the Delegate a further detailed Statutory Declaration, addressing the issues raised by the Delegate at the interview.

3. The Delegate considered the applicant’s protection claims and found him not to be a truthful witness.

4. The Delegate found that the applicant had demonstrated a propensity to mislead Australian authorities when there was no real reason to do so.

5. Moreover, the Delegate noted that the applicant was a low level member of the BNP who, having regard to country information, was not likely to be targeted by the Awami League due to his political profile.

6. Further, the Delegate found that it would be reasonable and practicable for the applicant to relocate in Bangladesh if he was at any risk of harm in Sylhet.

7. Accordingly, on 11 November 2013, the Delegate refused the applicant’s application for a protection visa on the basis that the applicant is not a person to whom Australia has protection obligations under the Convention and does not meet the alternative complementary protection criterion.

The Tribunal’s review and decision

1. On 27 November 2013, the applicant lodged an application for review of the Delegate’s decision by the Tribunal.

2. The applicant provided no further documents in support of his review application.

3. On 5 March 2014, the Tribunal wrote to the applicant informing him that the Tribunal had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the applicant to attend a hearing on 11 April 2014 to give oral evidence and present arguments.

4. On 11 April 2014, the applicant attended the Tribunal hearing and gave evidence.

5. The Tribunal explored the applicant’s claims with him in some detail at the hearing and put to him concerns it had about his evidence, noting his responses. The Tribunal put to the applicant country information for comment. The Tribunal identified with particularity the country information to which it had regard.

6. The Tribunal accepted that independent country information supported in a general way that there was political violence and conflict between BNP and Awami League supporters in Bangladesh.

7. However, the Tribunal did not accept the applicant’s claim that he would be targeted by Awami League supporters if he returned to Bangladesh for the reasons claimed.

8. In particular, the Tribunal noted that the applicant’s evidence at the hearing as to when he obtained his fraudulent visa was inconsistent with the evidence in his protection visa application.

9. The Tribunal noted that the applicant had only applied for a protection visa when his visitor visa in a false name was about to expire. The Tribunal found this to be inconsistent with the applicant’s claim that he fled Bangladesh in fear for his life.

10. The Tribunal noted that the applicant could not give a detailed account on his political involvement with the BNP, despite claiming to be a Sports Secretary for the Sylhet District.

11. The Tribunal also noted that despite the applicant’s claim that he was hiding from Awami League supporters by living at his grandfather’s house and his aunt’s house, he could not provide the addresses of these places. Given these inconsistencies in the applicant’s evidence, the Tribunal found that the applicant was not a truthful witness and rejected all the applicant’s claims for protection.

12. The Tribunal found that there was no evidence to support a finding that the applicant would suffer harm for a Convention related reason were he to return to Bangladesh, and that the applicant did not have a well-founded fear of persecution in Bangladesh.

13. The Tribunal also considered whether the applicant met the alternative criteria for complementary protection under s.36(2)(aa) of the Act and concluded that he did not. The Tribunal found that there was no credible evidence before it that anyone in Bangladesh would threaten to harm the applicant. Accordingly, the Tribunal found that there are no substantial reasons for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Bangladesh, there is a real risk that the applicants would suffer significant harm.

14. Accordingly, having determined that the applicant did not satisfy the refugee criterion in s.36(2)(a) of the Act, or the alternative criterion in s.36(2)(aa) of the Act, the Tribunal affirmed the decision under review.

The proceeding before this Court

1. The applicant was unrepresented before this Court, although had the assistance of a Bengali interpreter. 

2. On 4 November 2014, the applicant attended a directions hearing before me. I explained to the applicant that this Court has no power to interfere with the decision of the Tribunal, unless the Court is satisfied that the Tribunal’s decision is affected by a mistake going to the jurisdiction of the Tribunal. I also explained to the applicant that the grounds of the application made bare assertions that were unsupported by particulars.

3. At the directions hearing, the applicant was provided with a copy of the applicable costs schedule of the Court and I explained to the applicant the consequences that would flow to him if a costs order was made against him. Namely, that whilst any costs order remains unpaid, it becomes a debt to the Commonwealth of Australia. As such, the applicant’s ability to obtain any other type of visa or re-enter Australia may be significantly affected.

4. The applicant was also provided with the contact details of legal services providers and interpreting and translation services in documents headed in his own language.

5. The applicant confirmed that he wished to continue with the application for judicial review. The applicant was given leave to file and serve an Amended Application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, including any transcript of the Tribunal hearing by 30 December 2014, as well as submissions in support. The matter was the set down for final hearing.

6. Leave was granted to the first respondent to relist the matter for a show cause hearing on 22 September 2015.

7. On 22 September 2015, the applicant failed to appear before the Court and the show cause hearing was adjourned to 28 October 2015.

8. On 13 October 2015, the applicant filed an outline of submissions.

9. On 28 October 2015, the applicant attended the show cause hearing in person with the assistance of a Bengali interpreter. I noted that the matters raised in the applicant’s submissions filed on 13 October 2015 may demonstrate an arguable case for the relief sought. As the first respondent’s submissions did not address those issues, the matter was set down for final hearing today.

10. On 7 December 2015, the applicant filed an Amended Application.

11. At the commencement of today’s hearing, the applicant confirmed that he relied on the grounds contained in his initiating application filed on 23 July 2014 and the Amended Application filed on 7 December 2015, as follows:

    “Initiating Application

    1. The Tribunal failed to consider my claim on the basis of my political opinion against the Awami League party as an independent claim.

    2. The Tribunal failed to assess my harm on the basis of my support to the BNP.

    3. The Tribunal failed to assess the escalating political violence in Bangladesh since I left in 2012.

    Amended Application

    1. In making decision, the Administrative Appeals Tribunal acted without jurisdiction or in excess of jurisdiction when it failed to take into account relevant considerations.

    Particulars:

    AAT unreasonably raised doubt over my involvement with the BNP and my life is in danger. The Department and the Tribunal misunderstood or misconstrued the facts. Migration Advisor for the applicant's motivation to BNP politics, Applicant's activities and role in the Party. I was an active and popular activist of BNP.

    Applicant claims that there are many BNP leader, worker and also low profile activists are persecuted like me. As I stated earlier that my father business was attacked and looted in the past by the Awami league cadres.

    When Bangladesh Political situation for the Bangladesh Nationalist Party became worse, I decided to leave Bangladesh.

    I argue that the Department and the Tribunal asked many irrelevant questions to test the credibility of my evidences to support my claims.

    The Department and the Tribunal found inconsistency because the questions were asked in such a manner for which the applicant was not prepared. He was nervous and confused at the time of making Statutory Declaration and also at the time of interview with the Department and Lawyers who helped him to prepare the application.

    The Tribunal raised the question about telling these things now, and raised the question why I did not mention earlier in the Statutory Declaration with the Original Application.

    For the protection of my life I leave Bangladesh to Australia with other person name and passport. The tribunal member did not believe that and AAT raise question of credibility.

    The Department has accepted that I was very confused. I, myself was not understanding what answer I was giving for what question. The Department told the applicant first understand then give answer. The applicant was totally nervous.

    ‘I am inclined to believe that the applicant is Mohammed Redowan Ahmed, not Md Mamunur Rashed as claimed’ (Court Book Page 121). My protection visa application is effected by the opinion.

    I believe I was denied procedural fairness when the hearing was conducted not freely and fairly.

    2.  I claim that the AAT made a jurisdictional error when it made decision in which the finding of reasons are confused. I argue that the Tribunal did not apply Real Risk Chance Test used in the Refugee Convention under Australian Law.

    Particulars:

    I claim that the Tribunal and the Department formed the opinion based on the limited information about the possible harm to me. The Tribunal ignored all other independent information about the attacks on me and the BNP activists. AAT made unreasonable doubt about my documents related with his claims.

    The Department and the Tribunal made opinion with the closed mind. I claim that I left Bangladesh because of attack and torture by the supporters of Awami League supporter. I have no protection from the local authorities because my attempts to get help failed and also the monopoly of Awami League cadre and administrative authorities in Bangladesh.

    The AAT did not account any evidence of real chance of risk despite the facts of my situation in Bangladesh.

    3. The Tribunal made a jurisdiction error when it did not consider my claims under the Complementary protection Clauses.

    Particulars:

    I claim I would satisfy the criterion for protection under the Complementary protection arrangements as there are substantial grounds to believe there is a real risk that would suffer significant harm on return to Bangladesh. I claim that the Tribunal blindly follow the decision of the Delegate.

    The Tribunal did not consider that how I came to Australia by another passport taking high risk of life. The AAT ignored intentionally the relevant consideration related with complementary protection set out in s 36(2) (a). I am subjected to a significant harm as consequences of being tried for kill with possibility that sever sentence would be carried out on me.

    The AAT ignored real test of persecution and made decision with closed mind.”

    (Errors in the original.)

1. Each of the grounds was interpreted for the assistance of the applicant and the applicant was invited to say whatever he wished in support of each of the grounds and in support of the application generally.

2. In respect of each ground, the applicant said no more than that he had spoken the truth, said what he believed, and that all he had done in this matter was true and correct. He said that he had given all documents and remained actively involved. I took that as meaning that the applicant was actively involved in the BNP.

Initiating Application

Ground 1

1. In Ground 1 of the applicant’s initiating application, the applicant asserts that the Tribunal failed to consider his claim of political opinion against the Awami League as an independent claim.

2. In his application for a protection visa, the applicant asserted that due to his continuous support for the BNP, he would be considered to be “anti-government”. He also asserted that, as his family operated their own business, members and supporters of the Awami League would try to extort money from him, and that if he did not pay them, he would be harmed. Read fairly, the applicant’s claims go to being targeted by members and supporters of the Awami League for his support of the BNP.

3. At the hearing before the Tribunal, the applicant expanded on his claims in some detail. The applicant’s claims were based on his political membership of, and affiliation with, the BNP; his past activities with the BNP; and, alleged repercussions for his family business. 

4. Ultimately, the Tribunal comprehensively rejected the applicant’s claims ever to have been a genuine BNP supporter or a member or office holder with any BNP organisation. The Tribunal also found that the applicant would not be targeted for harm by Awami League supporters, members, activists and/or authorities in Bangladesh because of his alleged BNP position or activities.

5. The Tribunal’s decision record does not disclose a specific claim made by the applicant based on his political opinion against the Awami League. To the extent that any claim by the applicant could be seen as a separate claim based on his imputed political opinion against the Awami League, in my view, whilst the Tribunal does not make any express finding in those terms, any such finding to that effect is subsumed in the Tribunal’s findings to which I have referred above.

6. In Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, McHugh, Gummow and Hayne JJ stated at [91]:

   “[91] Further, in rejecting the argument that the two attacks it accepted had occurred could give rise to a well-founded fear of persecution, the Tribunal made a finding that the Hawiye clan was not targeting the Abaskul clan. This finding, being a finding at a higher level of generality than the question of specific incidents, may well explain why the Tribunal made no detailed finding about the house invasion. That being so, it is not demonstrated that the Tribunal made some error of law. It is not shown that it failed to take account of a relevant matter or that it asked itself the wrong question.”

7. In Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at 641 the Full Court of the Federal Court (French, Sackville and Hely JJ) stated as follows:

   “[46] It is plainly not necessary for the Tribunal refer to every piece of evidence and every contention made by an applicant in its written reasons. …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 MIMIA v Yusef (2001) 206 CLR 323; 62 ALD 225; 180 ALR at [87] to [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. …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.”

   (Emphasis added).

8. The Tribunal’s findings were open to it on the evidence and material before it, and for the reasons it gave, including its adverse credibility findings. Credibility findings are a matter par excellence for the Tribunal (see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J). A credit finding is sound if it was “open to [the Tribunal] on the material, was based on rational grounds and was arrived at on consideration of matters that were logically probative of the issue of credibility” (see Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547).

9. Accordingly, Ground 1 of the applicant’s initiating application is not made out.

Ground 2

1. In Ground 2, the applicant asserts that the Tribunal failed to assess his risk of harm on the basis of his support for the BNP.

2. The Tribunal’s decision record makes clear that it explored the applicant’s claims to fear harm because of his support for the BNP with the applicant in significant detail at the hearing.  The Tribunal put to the applicant concerns it had about his claims and noted his responses.  The Tribunal referred to various inconsistencies that it found in the applicant’s evidence. Ultimately, the Tribunal found that the applicant’s evidence in relation to past harm, including harassment, threats, and extortion, by those claimed including the authorities, the police and Awami League members, supporters and/or miscreants, were not credible. The Tribunal did not accept that the applicant gave truthful evidence about his political profile and the political profile of his father and other family members. The Tribunal did not accept that the applicant ever held the position of Sports Secretary, or any other position, within the BNP. The Tribunal found that the applicant did not give a meaningful account of what he did to support the BNP in Bangladesh.

3. The Tribunal also noted the applicant’s evidence at the hearing that he had not attended any BNP meetings or activities in Australia. The Tribunal did not accept the applicant’s explanation as to why he had not attended any such activities in Australia. The Tribunal found that the applicant’s conduct was not consistent with his claim to have a profile with the BNP.

4. Ultimately, as stated above, the Tribunal rejected the applicant’s claim to be of any adverse interest to authorities or members or supporters of the Awami League in Bangladesh for the reasons claimed. 

5. As stated above, the Tribunal’s findings were open to it on the evidence and material before it, and for the reasons it gave, including its adverse credibility findings.

6. Accordingly, Ground 2 of the applicant’s initiating application is not made out. 

Ground 3

1. In Ground 3 of the initiating application, the applicant asserts that the Tribunal failed to assess the escalating political violence in Bangladesh after he left in 2012.

2. The Tribunal referred to a submission dated 27 May 2013 prepared by the applicant’s migration agent and noted that it included many references to up-to-date and relevant independent country information.  The Tribunal accepted that independent country information, including the information provided by the applicant’s migration agent, supported in a general way the applicant’s claim that there is violence between opposing political parties in Bangladesh. The Tribunal accepted that sometimes persons with a political profile, including a local political profile, are targeted for harm by members of opposing political factions. The Tribunal also accepted that in the recent past, political violence has worsened in Bangladesh and that the security situation has further deteriorated.

3. However, in considering the risk to the applicant in the context of the Tribunal’s findings that the applicant had no political profile in Bangladesh and had never suffered harm for that reason, the Tribunal did not accept that things would be worse for the applicant in Bangladesh than when he left in 2012 by reason of political violence. Instead, the Tribunal found that things would be no different for the applicant if he was to return to Bangladesh. Those findings were open to the Tribunal on the evidence and material before it, and for the reasons it gave.

4. In the circumstances, the applicant’s complaint in Ground 3 that the Tribunal failed to assess the escalating political violence in Bangladesh since he left in 2012 is not made out.

Amended Application

Ground 1

1. Ground 1 of the applicant’s Amended Application asserts that the Tribunal failed to take into account relevant considerations. The particulars in support of Ground 1 appear to assert that the Tribunal unreasonably doubted the applicant’s involvement with the BNP and that his life was in danger; asked him many irrelevant questions for which he was not prepared; he became nervous and confused as a result and gave evidence that was found by the Tribunal to be inconsistent with his earlier evidence; the applicant did not understand what answers he was giving to what questions; and that, as a result of these matters, he was denied procedural fairness because the hearing was not conducted freely or fairly.

2. A fair reading of the Tribunal’s decision record does not support the applicant’s assertion that the Tribunal conducted the hearing in a manner that was neither free nor fair, or denied the applicant procedural fairness. 

3. The applicant has been given several opportunities to file any evidence, including any transcript of the Tribunal hearing.  The applicant has not done so. Nor has the applicant sought to rely on any tape recording of the Tribunal hearing.  In the circumstances, the Court accepts as accurate the Tribunal’s summary of the oral evidence given by the applicant and exchanges it had with the applicant at the Tribunal hearing. The Court is entitled to accept the Tribunal’s decision record as accurately reflecting the matters to which it refers as taking place at the hearing in the absence of any evidence to the contrary (see NAFF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1).

4. There is no evidence before this Court to suggest that the Tribunal asked irrelevant questions or asked questions in a manner for which the applicant was not prepared.

5. In relation to the applicant’s assertion that he did not understand what answers he was giving to questions, the Tribunal’s decision record provides in detail the various exchanges that it had with the applicant.  Those exchanges do not suggest that the applicant’s answers were unresponsive in any fashion. Further, the Tribunal’s decision record does not disclose that the applicant, at any time, complained that he did not understand the questions that were being asked.

6. The Tribunal did find that the applicant gave confused evidence in relation to his passport and visa to come to Australia.  However, the substantial discussion as disclosed by the Tribunal’s decision record does not suggest that the Tribunal’s finding that the applicant gave confused evidence related to the any lack of understanding on the applicant’s part of the questions that he was being asked.

7. There is otherwise no evidence before this Court to suggest that the applicant was unfit for the hearing or unable to represent himself before the Tribunal.  Jurisdictional error does not arise simply because an applicant failed to present his or her case in the best possible light (see Minister for Immigration and Citizenship v SZNVW (2012) 183 FCD 575).

8. The first respondent tendered a bundle of documents identified as the ‘Court Book’ and marked Exhibit 1R.  Exhibit 1R makes clear that, upon the applicant lodging his application for review of the delegate’s decision, the applicant was invited to attend a hearing before the Tribunal to give evidence and present arguments.  That invitation was given to the applicant in accordance with the legislative scheme.  Exhibit 1R and the Tribunal’s decision record makes clear that the applicant attended that hearing on 11 April 2014; that the Tribunal explored the applicant’s claims with him in some detail at the hearing; and, that the Tribunal considered post-hearing submissions from the applicant’s migration agent.  

9. In the circumstances, I am satisfied that the Tribunal conducted its review and made its decision in accordance with the relevant statutory scheme.  There is no evidence before this Court to suggest that there was any denial of procedural fairness.  None is particularised and none was referred to by the applicant in any oral submission to the Court this morning. 

10. Accordingly, Ground 1 of the applicant’s Amended Application is not made out.

Ground 2

1. Ground 2 of the applicant’s Amended Application asserts that the findings and reasons of the Tribunal are confused and that the Tribunal did not apply the “real risk chance test”. The particulars in support allege that the Tribunal ignored all other independent information about attacks on the applicant and BNP activists and that the Tribunal was biased.

2. In relation to the assertion that the Tribunal ignored “all other independent information”, the Tribunal specifically referred to the independent country information provided by the applicant’s migration agent and noted that, in a general way, it supported the applicant’s claims of political violence and conflicts between opposing parties in Bangladesh.

3. However, the Tribunal noted that the matters and harm referred to in that independent country information were relevant to persons with a political profile, including a local political profile. The Tribunal rejected the applicant’s claim to have such a profile. There is otherwise no evidence or information before the Court identifying what independent information the Tribunal is alleged to have ignored.

4. In any event, it is well settled that the country information to which the Tribunal has regard and the weight it gives that information is a matter for the Tribunal (see NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10; VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29).

5. To the extent that Ground 2 may be asserting that the Tribunal ignored the documents from Bangladesh provided by the applicant in support of his claims, the Tribunal’s decision record makes clear that the Tribunal considered those documents. However, having regard to the prevalence of document fraud in Bangladesh and the concerns the Tribunal had about the applicant’s credibility, being matters that were put to the applicant, the Tribunal did not accept those documents as reliable evidence of the facts asserted in them.

6. Simply because the Tribunal did not make findings with which the applicant agreed does not mean that the Tribunal ignored information. 

7. In the circumstances, the applicant’s complaints are more in the nature of a disagreement with the findings and conclusions of the Tribunal. The applicant’s complaints, such as they are, invite merits review which this Court cannot undertake (see Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [53] – [54] per Gleeson CJ and McHugh J; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ). The following was stated in Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 at [20] by North, Lander and Katzmann JJ:

   “It was not for the Federal Magistrate’s Court, nor for this Court, to review the merits of the Tribunal’s decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611. A wrong finding of fact is not an error of law: Waterford v The Commonwealth (1987) 163 CLR 54 at 77. Unsound reasoning is not an error of law: Reg v The District Court; Ex parte White (1966) 116 CLR 644 at 654; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356.”

8. To the extent that the applicant’s complaint in Ground 2 alleges bias on the part of the Tribunal, such an assertion is serious and requires evidence, such as a transcript of the Tribunal hearing. It is a rare and exceptional case where bias can be demonstrated solely from the published reasons of a decision. Similarly, the mere fact that the Tribunal makes adverse findings in respect of the applicant does not give rise to an inference of bias or, by itself, suggest that the decision-maker approached its task other than with a mind open to persuasion (see SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38] per Von Doussa J).There was no evidence before the Court to suggest that the Tribunal was biased and there is nothing in the Tribunal’s decision record or in the conduct of its review to support such allegation.

9. Further, there is no evidence upon which a fair minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the Tribunal, might reasonably apprehend that the Tribunal may not have brought an impartial mind in determining the application for review (see Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at [27]-[32] per Gleeson CJ, Gaudron and Gummow JJ; and NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 at [115] per Allsop J, with whom Moore and Tamberlin JJ agreed).

10. Accordingly, Ground 2 of the applicant’s Amended Application is not made out.

Ground 3

1. Ground 3 of the applicant’s Amended Application asserts that the Tribunal did not consider the applicant’s claims under the complementary protection criterion.

2. The particulars in support of Ground 3 assert that the Tribunal did not consider how the applicant came to Australia by another passport and the risk he took in doing so. The particulars further assert that the Tribunal intentionally ignored relevant considerations relating to complementary protection. The particulars otherwise repeat the allegation of bias, which has been dealt with above, and make the bare assertion that the Tribunal ignored the “real test of persecution”. 

3. The Tribunal’s decision record does not support the applicant’s complaint in Ground 3.  At the start of its decision record, the Tribunal referred to the relevant law and the considerations that it must take into account.

4. In relation to the applicant’s allegation that the Tribunal did not consider how the applicant came to Australia by another passport, the Tribunal noted in some detail the concerns and difficulties that it had about the applicant’s identity. It gave that information to the applicant at the hearing in accordance with s.424AA of the Act. The Tribunal then allowed the applicant time after the hearing to send further material in response to the Tribunal’s concerns about the applicant’s passport and his entry into Australia.

1. Ultimately, the Tribunal accepted that the applicant obtained a passport by fraudulent means in another person’s name. However, it did not accept that the applicant did so for the reasons he claimed. The Tribunal’s decision record discloses substantial detail about the exchanges that the Tribunal had with the applicant about these issues and which led to its ultimate findings.

2. As stated above, the Tribunal’s findings were open to it on the evidence and material before it, and for the reasons it gave. 

3. In relation to the Tribunal’s consideration of the complementary protection criterion in s.36(2)(aa) of the Act, the Tribunal referred to its earlier findings in respect of the applicant’s claims and its comprehensive rejection of the applicant’s fundamental claim to fear harm in Bangladesh because of his affiliation with the BNP.

4. It is well established that it is acceptable for a Tribunal to have regard to its prior findings in considering whether an applicant meets the complementary protection criterion (see Minister for Immigration and Citizenship v SZQBR (2013) 210 FCR 505 at [245] – [246] per Lander and Gordon JJ; SZSHK v Minister for Immigration and Border Protection (2013) 138 ALD 26 at [32] per Robertson, Griffiths and Perry JJ; and SZUYK v Minister for Immigration and Border Protection [2016] FCA 216 at [36] per Farrell J).

5. Accordingly, Ground 3 of the applicant’s Amended Application is not made out.

Additional Issues 

1. In submissions filed by the applicant on 30 March 2016, in addition to making similar complaints to those made in his various grounds above, the applicant asserts an error of the kind referred to in Muin v Refugee Review Tribunal (2002) 76 ALJR 966 (“Muin”). 

2. I accept the submissions of the solicitor for the first respondent in relation to the distinction between Muin and the case presently before this Court in their entirety, and I refer to those submissions as follows:

   “41. To the extent that the applicant may press the 'grounds' out in paragraph [2] of his outline of submissions dated 30 March 2016 as separate grounds of review, the first respondent submits that:

   (a) the first 'ground' alleges that the Tribunal made an error of the kind found in Muin v Refugee Review Tribunal (2002) 76 ALJR 966 (Muin).  Muin was a case in which conduct on the part of the Tribunal in the course of the review misled the plaintiff into refraining from taking up an opportunity to be heard that was available to him. In Muin, there were agreed facts to the effect that the plaintiff had been misled into believing that the Department's “Part B” documents (which included information favourable to the plaintiff) would be sent to and considered by the Tribunal. The Tribunal also wrote to the plaintiff to state that it had looked at all the material relating to the application. It was agreed that the plaintiff was misled into thinking that it was unnecessary for him to draw the information in the Part B documents that favoured his application to the attention of the Tribunal and that, had he not been misled in that regard, he would have taken steps to correct that situation. There are no similar facts (agreed or otherwise) in this case. In any event, it is unclear what material the applicant wishes to assert was not before the Tribunal and how, in the circumstances of this case, this gave rise to a denial of procedural fairness. Contrary to paragraph [4] of the applicant's submissions, the Tribunal clearly indicates at paragraph [27] of its decision record (CB177) that it had regard to the country information referred to by the delegate.

   (b) The second 'ground' is a bare assertion of jurisdictional error and error of law. The first respondent submits that no such errors are demonstrated for the reasons set out in these submissions.

   (c) The third 'ground' asserts that there was no evidence or other material to justify the making of the decision. The first respondent submits that it was reasonably open to the Tribunal to reach the findings that it did on the evidence that was before it and for the reasons that it gave.

   42. As to the annexures to those submissions, the first respondent submits that these documents go only to the merits of the applicant's protection visa application. To the extent that the applicant may seek leave to tender these documents as evidence, the first respondent would object on the basis of relevance.”

3. Further, the applicant filed a separate document titled ‘Applicant’s Written Arguments’ on 13 April 2016 where he again made similar complaints to those in the grounds of his initiating and Amended Application. However, in that document, the applicant also stated that he was sick at the Tribunal hearing and could not recall all events or provide accurate explanations. I am prepared to accept that the scope of that allegation is beyond the applicant’s earlier complaint that he was nervous and confused.

4. However, again there is no evidence before this Court to suggest that the applicant was sick at the time of the Tribunal hearing or, if he was, that he brought that illness to the attention of the Tribunal.  Moreover, I note that at all times throughout the Tribunal’s review, the applicant was represented by his migration agent. 

5. The document also makes a further unparticularised assertion that the Tribunal did not act in good faith. That complaint is not supported by any particulars, evidence or submissions. Further, there is nothing in the Tribunal’s decision record or in the manner in which the Tribunal conducted its review to suggest that that it did not act in good faith.

6. Accordingly, to the extent that the applicant was intending to make additional complaints in either of his written submissions to the Court, none are made out. 

Conclusion

1. A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims being made by the applicant, explored those claims with the applicant at a hearing and had regard to all material provided in support.

2. The Tribunal put to the applicant matters of concern it had about his evidence, and noted his responses. The Tribunal gave the applicant information which may be the reason or part of the reason for it affirming the decision under review in accordance with s.424AA of the Act and it gave the applicant further time after the Tribunal hearing to comment on that information. The Tribunal considered post-hearing submissions provided by the applicant’s migration agent. The Tribunal discussed independent country information before it, particularly relating to document fraud in Bangladesh, and gave specific consideration to country information provided by the applicant.

3. The Tribunal then made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for the reasons it gave. A fair reading of the Tribunal’s decision record makes clear that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law.

4. In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.

5. The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.

6. The proceeding before this Court should be dismissed with costs.

I certify that the preceding one hundred and fourteen (114) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate: 

Date:  29 April 2016