SZVRM v Minister for Immigration

[2016] FCCA 639

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVRM v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 639

Catchwords:
MIGRATION – Application to review decision of the Refugee Review Tribunal – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), s.424AA

Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437; [2014] FCAFC 1

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18
Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429; [2009] HCA 39

Applicant: SZVRM

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3224 of 2014

Judgment of: Judge Barnes

Hearing date: 14 March 2016

Delivered at: Sydney

Delivered on: 14 March 2016

REPRESENTATION

The Applicant: In Person

Solicitors for the Respondents: Minster Ellison

ORDERS

1. The name of the Second Respondent be amended to read “Administrative Appeals Tribunal”.

2. The application be dismissed.

3. The Applicant pay the costs of the First Respondent fixed in the sum of $6,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3224 of 2014

SZVRM

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application for review of a decision of the Refugee Review Tribunal (now the Administrative Appeals Tribunal) dated 23 October 2014 affirming a decision of a delegate of the First Respondent not to grant the Applicant a Protection visa.

2. The Applicant, a citizen of Bangladesh, arrived in Australia in 2008 as the holder of a Student visa.  He lodged an application for a further Student visa, which was refused.  He sought review, withdrew that application in March 2013 and on 12 March 2013 applied for a Protection visa.

3. In his Protection visa application the Applicant claimed to fear harm in Bangladesh on the basis that he and his family had been threatened by an underworld group supported by the current ruling party.  He claimed to fear he would be harmed by a politically connected criminal gang which had been trying to extort money from his father and which had threatened the family since 2001.

4. The delegate refused the application on 26 September 2013.  The Applicant sought review.  He attended a Tribunal hearing.  A transcript of the Tribunal hearing of 23 October 2014 is in evidence as an annexure to an affidavit of Winnie David affirmed on 18 February 2015. 

5. In its reasons for decision, the Tribunal explained that the main issues were whether it accepted that the Applicant’s claims were true and, if so, whether it accepted that he had a well-founded fear of Convention persecution or faced a real risk of significant harm within the complementary protection criterion. 

6. The Tribunal found, having considered the written and oral evidence presented to the Department and to it, that the Applicant had not presented a credible account of his circumstances.

7. It referred to the claims the Applicant made in his protection visa application that the group had threatened his father that if he did not pay, the Applicant would be kidnapped, that the group had tried to look for him when he was in Bangladesh but that he used to hide at home.  It recorded that he had also claimed that the group was still looking for him and that the family had had to move from their longstanding residence.

8. The Tribunal recorded that in the interview with the delegate the Applicant had said the first demand was made in 2001, that his father did not pay and that the threats continued.  His father stopped work after he had a stroke in mid-2004.  In 2008 the Applicant came to Australia.  His parents then relocated to a village.  He claimed they returned to Dhaka in mid-2012 because medical facilities were better.  He also claimed that his father was threatened from time to time, but that there was no further contact after his father moved away from Dhaka in 2008 (even after he returned to Dhaka).

9. However the Tribunal recorded that at the Tribunal hearing the Applicant said that from 2003 to 2005 the gang members came to the family home two or three times and that after 2005, while they did not continue to come to the house, the phone threats increased and they started following the Applicant and sending photographs of him to his parents.  He did not see the people following him.  He only knew this was occurring because of the photographs.  He claimed that after sending him out of the country his parents returned to their village where they remained.  He claimed they visited Dhaka for medical and financial reasons and that written threats continued to be sent to the family home. 

10. The Tribunal did not accept these claims.

11. First, it found, “most significantly”, that the Applicant’s claim that his family  had been pursued by extortionists since 2001 in circumstances where his father had continued to refuse to meet their demands but no harm had ever been done to any family member, was “so implausible” that it did not accept it.  The Tribunal found the claim so lacked credibility that it not accept that threats were ever made to the family.  In the alternative, it found that even accepting that a demand for money was made in 2001, the Tribunal did not accept that there followed threats representing a serious or genuine intention to inflict harm of any kind on the Applicant or any member of his family.  The Tribunal had regard to the fact that despite the claims that the extortionists were in constant contact with the father, knew where the family lived, followed the Applicant to school and knew what he looked like, on the Applicant’s evidence no harm of any kind was ever done to him or to any member of the family.  In these circumstances and given that 13 years had passed since the original demand the Applicant claimed occurred, the Tribunal was not satisfied there was a real chance the Applicant would be harmed in any way if he returned to Bangladesh now or in the reasonably foreseeable future.

12. Secondly, the Tribunal had regard to the fact that the Applicant had changed details of his account over time.  It referred to the fact that while in the protection visa application he had stated that the group “tried to look for him” when he was in Bangladesh, but that he used to hide at home, at the hearing he had raised new claims that the gang members had come to the family home two or three times from 2003 to 2005, that he was followed (especially during 2006 and 2007) and that the gang members took photographs of him which they sent to his parents as threats.  He also stated that numerous written threats continued to be sent to his parents’ home.  The Tribunal had regard to the fact that the Applicant did not mention the visits to the home or that he was followed and photographs sent to his parents in the interview with the delegate (as recorded in the delegate’s decision).  Moreover he had told the delegate that his father continued to receive telephone threats until his parents relocated to their village in 2008, but that there was no further contact after this event, even after his father returned to Dhaka in 2012. 

13. The Tribunal recorded that it had explained to the Applicant at the hearing that the claims that he had been followed and that photographs had been taken and sent to his parents had not been mentioned before the hearing; that this was a significant claim in terms of the degree of threatening conduct it indicated; and that the Tribunal would expect that he would have mentioned it, if he were telling the truth.

14. It addressed the Applicant’s explanation that after the interview he had sent an email to the delegate mentioning the photographs.  He provided a printout of an email and showed the Tribunal the “sent items” box of his mobile phone which the Tribunal accepted appeared to show that such a message was sent on 3 September 2013, six days after the departmental interview.

15. The Tribunal observed that the email message (a copy of which was provided to it by the Applicant) was not on the departmental file and that it had told the Applicant that it had had some doubts about whether the email had actually been sent.  However it continued:

    …but in any event, I could not understand why he had not mentioned this significant claim at the interview itself; or why it had taken him six days after the interview to remember the information and provide it to the Department.  I explained that this might make me think that he had made up the claim after the interview, having concluded that it did go very well, and in the hope that the new information might strengthen his claims.  The applicant said that perhaps he was not asked about the photographs, and said that it was not made clear to him that the interview would be his one chance to present all his claims; the delegate had given him her email address and said that he could provide any further information, and he said that he did this “straight away” after the interview.

    I have considered the comments and explanations put forward by the applicant, but he has not explained to my satisfaction why he would not have mentioned this highly significant piece of information in the general context of the presentation of his account either in writing or at the protection interview, if it were true.  Moreover, this new claim appears to contradict the claim made in the protection visa application, that the extortionists “tried” to look for the applicant, but he hid at home, as he now suggests that they knew where he was at all times; if accepted, this new evidence would also suggest that they could have harmed him at any time.

16. The third factor the Tribunal took into account in considering the credibility of the Applicant’s claims was the fact that in the departmental interview (as recorded in the delegate’s decision record) the Applicant said that his father received no further telephone threats and had no further contact with the extortionists after moving from Dhaka in 2008, whereas at the Tribunal hearing he claimed that written threats continued to be delivered to the family home in Dhaka, albeit he has claimed his parents did not live there and only returned temporarily for medical care and to attend for financial matters.  It considered the Applicant’s explanation for this apparent discrepancy in his evidence, which was that he meant that his parents returned to Dhaka on a temporary basis to attend to these matters.  The Tribunal was of the view that that was not what the Applicant had meant to convey at the departmental interview and that he had given the clear impression that his parents had returned to Dhaka permanently.  The Tribunal considered that this was a significant discrepancy which had not been explained and which reflected poorly on the Applicant’s credibility.

17. Fourthly, the Tribunal had regard to the fact that when asked at the hearing to comment on the fact that the extortionists had had ample opportunity to harm him or members of the family from 2001 on, the Applicant had indicated that he had only been able to avoid harm by staying at home.  The Tribunal pointed out that the Applicant had been able to attend and complete high school.  It also found that his evidence that he was required to remain at home in order to avoid harm was inconsistent with his evidence that the extortionists knew his home address and had been to the family home.  The Tribunal did not accept that remaining at home in circumstances where the Applicant’s home address was known to the persons threatening him would have provided protection against a genuine and serious threat of harm.

18. The Tribunal concluded that, given the numerous outlined deficiencies in the Applicant’s account, including the omission of key claims until the Tribunal hearing and the introduction of new evidence at that late stage, internal contradictions, inconsistencies and discrepancies and overall, “a highly implausible account of events”, it did not accept that the Applicant had told the truth about the reasons for his departure from Bangladesh and his reluctance to return.

19. The Tribunal acknowledged that there was independent information indicating that extortion and kidnappings occurred frequently in Bangladesh, but found that the Applicant had not provided a credible or plausible account on which the Tribunal could be satisfied that he had in the past been subjected to genuine and serious threats of such harm. 

20. At most, the Tribunal was prepared to accept that a demand for money may have been made of the Applicant’s father in 2001, but it did not accept that the Applicant or other members of his family were thereafter subjected to ongoing threats over a period of seven years until the Applicant’s departure from Bangladesh or that threats had continued over the six years of his subsequent absence.  It did not accept there was a real risk or real chance that the Applicant would be subjected to harm of any kind arising from the circumstances claimed if he returned to Bangladesh and found that he did not meet the Refugees Convention criterion.

21. For the same reasons and in the absence of any additional basis for claiming complementary protection, because the Tribunal did not accept the Applicant’s account of the circumstances which he claimed led to his need for protection, it did not accept there was a real chance or real risk he faced harm of any kind on return to Bangladesh and was not satisfied he met the complementary protection criterion.  The Tribunal affirmed the delegate’s decision.

22. The Applicant sought review by application filed in this court on 20 November 2014.  At that time he was legally represented.  There is one ground in the application;  it is that the Tribunal denied the Applicant procedural fairness.  The particulars are that the Tribunal “failed to make an obvious enquiry as requested by the applicant in relation to the photographs the applicant emailed to the DIBP case officer after his Departmental interview, which the Member conceded was a “highly significant piece of information” (para 14 of the statement of reasons).

23. The Applicant is now unrepresented.  He did not file written submissions. 

24. When the matter first came before the court for hearing the Applicant claimed that he wished to rely on a previously unfiled affidavit of Winnie David annexing a transcript of the Tribunal hearing in support of the ground in the application.  He was given leave to file and rely on this evidence and the First Respondent was given time to consider it. This evidence is discussed further below.

25. In submissions the Applicant contended first that he had not been able to understand the tape of the departmental interview and that this was, in some way, indicative of jurisdictional error on the part of the Tribunal.  Presumably this was intended to be an assertion of a denial of procedural fairness by the Tribunal.

26. Insofar as the Applicant intended to indicate that he had asked the Tribunal at the hearing to provide him with a fresh copy of the tape of the departmental interview, there is nothing pointed to or apparent in the transcript of the hearing to that effect. 

27. He claimed that he told the Tribunal that he did not understand the disc and appeared to submit that this, in some way, provided an acceptable explanation for inadequacies or inconsistencies in his evidence. 

28. It is the case that when the Tribunal questioned the Applicant about the movements of his parents (in particular whether they moved away from Dhaka permanently or whether they moved back to Dhaka in 2012 and whether they had received any threats of any kind after 2008 or 2009), the Tribunal put to the Applicant that it seemed he was changing his claims from what he had said at the departmental interview as recorded in her decision and that this might make the Tribunal think that he was not being truthful.  It explained at page 18, lines 15 to 18 of the transcript of the Tribunal hearing:

    The clear indication was that your parents had returned permanently to Dhaka.  Moreover, you stated that your father had not received telephone threats after 2009.  If you were going to say that he had not received telephone threats, why not make it clear that he was receiving written threats instead?

29. The Applicant responded:

    I can’t.  I really can’t remember.  But because they, they are not living in Dhaka permanently.  I don’t know why.  I don’t if – because I – I couldn’t hear my audio disc.  I don’t know, but I – because they are not living in Dhaka any more and the, the telephone threats, that’s what I told you, like when they moved out they’re not – took the landline number with them, you can’t do it, so they haven’t got the telephone threats from that, but my – because you’re coming and looking for my father - and for me and ask about my older sisters.

30. I note that despite a certain degree of incoherence in this response, the Applicant chose to participate in the Tribunal hearing without an interpreter.  The Tribunal member checked with him at the start of the hearing that this was so and indicated that if he had any difficulty understanding that he should indicate immediately as it was important that there be no communication issues.  Similarly, in proceedings in this court, the Applicant has chosen to participate without needing the assistance of an interpreter, although an interpreter is present. He showed a very good standard of English, consistent with the rest of the transcript of the Tribunal hearing.  While seen in isolation this particular extract from the Tribunal decision is somewhat incoherent, that is to be seen in the context of the Applicant being asked to provide an explanation for clear inconsistencies in his evidence.

31. In any event, while the Applicant did refer to not being able to “hear” his audio disc, there is no indication that he was asking generally for a fresh copy of the disc or saying generally that there was a significant problem with the disc as a whole, rather than responding to the particular aspect of what the delegate recorded he had said at the departmental interview.

32. Moreover, as the Tribunal explained to the Applicant, it was referring to what the delegate had recorded in the delegate’s reasons, a copy of which was provided to the Applicant.  Hence, even if the Applicant was claiming he could not understand the recording of the interview, he was on notice of what the delegate recorded that he said in the departmental interview.

33. Importantly there has been no suggestion, either to the Tribunal or in these proceedings, that the Tribunal (or the delegate) inaccurately recorded what the Applicant said in the departmental interview.  Rather, the Applicant appeared to be suggesting that his evidence may have been inconsistent partly because he had not been able to verify what he had said to the Department and thus provide consistent information.  In such circumstances it was open to the Tribunal to find that the Applicant had not given a satisfactory explanation for the inconsistency between what the delegate recorded he had said in the interview and what he said to the Tribunal.  In particular it was open to the Tribunal to find that there was a significant discrepancy between the recorded evidence to the Department and the evidence to the Tribunal which had not been explained and which reflected poorly on the Applicant’s overall credibility.

34. More generally, the concerns that the Applicant now raises about alleged deficiencies in the tape of the departmental interview are not such as to establish any lack of procedural fairness or jurisdictional error on the part of the Tribunal.  I note that it is apparent from the transcript of the Tribunal hearing that at the hearing it raised with the Applicant dispositive issues and gave the Applicant the opportunity to comment or respond.

35. The other issue raised by the Applicant and the basis for the ground in the application for review is the concern that the Tribunal failed to make an obvious inquiry as requested by the Applicant.  In the application, it is said that the Applicant asked the Tribunal to inquire “in relation to the photographs the applicant emailed to the [departmental] case officer after his interview”.

1. First insofar as there is any suggestion in this ground that the Applicant emailed photographs to the delegate (as distinct from sending an email claiming that photographs had been taken of him by the gang in Bangladesh), it is apparent from the transcript of the Tribunal hearing that he did not do so.  He did not claim to have done so in these proceedings. 

2. The discussion of the mail to the delegate commences at page 7 of the transcript of the Tribunal hearing.  The Applicant claimed he sent an email to the delegate, a copy of which he provided to the Tribunal. This is a reference to an email bearing the date 3 September 2013 (a copy of which appears in the Courtbook.  The Applicant claimed in the Tribunal hearing that he forgot to tell the delegate in the interview:

   …they used to follow us and sent two photos of us and send it to my parents and said to that “We know where you are and we can do whatever we want to do if you don’t listen to us.”

3. The Applicant told the Tribunal that the photos were sent to the family in 2006 to 2007 and that his parents decided that they did not want to keep him in the country (at transcript p.8).  He elaborated on this, but importantly (at p.9), he explained that they did not save the photographs.  When the Tribunal raised with him that he had not mentioned the photographs previously and that he did not mention them in his protection visa application or at the interview with the Department of Immigration, he replied (transcript, p.9 lines 8-15):

   I can’t – I can’ t remember the -about my application, but when, when she ask me about it, I, I – like I don’t know if we spoke about it or not, but when I came she gave me our email address, and I, I, I straightaway email her, and the thing is if you talk about evidence like, we never like - we didn’t keep those photos and the letters and everything, because we didn’t have a plan, like it’s gonna go like this, and - I didn’t know like I’m gonna apply for this and it’s gonna become a big problem, and all this thing, so we never had those photos saved (emphasis added).

4. The Tribunal confirmed its understanding that the photographs were not provided to the delegate in stating “I’m not indicating or suggesting that you have necessarily provided the photographs”.  It explained that it was puzzled as to why he would not have specifically mentioned the claims that they followed him and photographs were taken of him previously.

5. I am satisfied that contrary to the assertion in the ground in the Application, photographs were not emailed to the delegate by the Applicant.  Consistent with this, the copy of the email which appears on page 98 of the Courtbook, does not refer to any attachment.  Rather it claims that photographs were taken and sent to the Applicant’s father as pleaded.  The ground is not made out.

6. That leaves however the Applicant’s oral claim that the Tribunal should have checked with the Department that he did in fact send it the email of 3 September 2013.  This concern appears to have arisen because in the hearing the Tribunal, after expressing concern about the late claim, explained to the Applicant (and recorded in its reasons for decision), that there was no such email on the departmental file.  At the hearing it suggested that it looked as though the email was not actually sent. 

7. It is apparent that the Tribunal had before it the departmental file and had considered the file.  However at the hearing the Applicant then showed the Tribunal what was described as the “sent” box on his mobile phone.  The Tribunal, after expressing surprise that this claim was not mentioned at the departmental interview, accepted that there appeared to be an email which did appear to have been sent.  It explained to the Applicant that its concern was that this claim was not mentioned in the protection visa application or at the interview and the fact that there was a delay of some six days after the interview before the Applicant sent the email to the Department.

8. As set out above, in its reasons for decision the Tribunal outlined its concerns in this respect.  It referred to the fact that it had expressed doubt at the hearing about whether the email had been actually sent.  However its findings, relevantly, were that it did not understand why this claim about being photographed was not mentioned at the interview itself or why it took six days after the interview for the Applicant to remember the information and provide it to the Department.  In particular it found that there was no satisfactory explanation as to why this highly significant piece of information would not have been mentioned either in writing in the protection visa application or at the departmental interview.  In addition, the Tribunal found that this claim also contradicted the claim in the protection visa application that the extortionists had tried to look for the Applicant, but that he hid at home. 

9. The Applicant’s concerns raise a contention that there was a failure by the  Tribunal to make an obvious inquiry about a critical fact the existence of which was easily ascertained in the sense considered in Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429; [2009] HCA 39. However I am not satisfied that such a claim is made out in circumstances where whether or not the email was in fact sent was not a critical fact in terms of the disposition of the review.

10. As indicated, while the Tribunal explained that it had some doubts about this that it had expressed to the Applicant, its findings proceeded on the basis that the email was sent. Hence, as submitted for the First Respondent, this is not a case in which the Tribunal was under a duty to inquire, having regard to the nature of the information.

11. That is so, even if the Applicant can be seen as having asked the Tribunal in the hearing to make an inquiry as to whether the email was received by the Department.  He did suggest to the Tribunal (at page 15 of the transcript) in the context of discussion of the “sent” box on his iPhone and whether the email was actually sent:

    I don’t know.  Like, if you want to have a go or check again before you make a decision – I don’t know, like, in case –

12. However as the Tribunal explained, whether or not the email was actually sent was not the main issue (which was the fact that he did not mention this claim at the interview).  

13. At the end of the hearing, after the Applicant had talked about the email address having been given to him and claimed that he sent the email and that everything he said was true he stated:

    So I’ll just ask, request you before you make any decision, just if you want to change (sic) the email or whatever you feel better - you know better that.

14. Insofar as either or both of those remarks are to be taken as the Applicant raising with the Tribunal a request that it inquire as to whether the email was actually received by the Department, it was open to the Tribunal to choose whether or not to make such an inquiry.  There is no general duty to make inquiries.  Had such an inquiry been made, at its highest the result could have been no more than information that the email had been received by the Department.  However, as the Tribunal pointed out, the critical issue was not whether the email was sent or received but rather the lateness of raising the claim about the photographs.  Hence, an issue about receipt of the email was not such as to give rise to an obligation on the Tribunal to inquire, whether of its own volition or in response to what the Applicant said to it at the hearing.

15. Insofar as the issue is seen in terms of whether the Tribunal ought to have exercised a discretion to make further inquiries, I am not satisfied that the Tribunal’s failure to make a further inquiry as to whether the email was sent or received is such as to lack an intelligible or evident justification or such as to amount to an unreasonable exercise of the Tribunal’s discretion in the sense considered in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 or Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437; [2014] FCAFC 1. In circumstances where the investigation would not have gone to a critical fact, there is, in my view, an intelligible justification for the Tribunal exercising its discretion not to make any further inquiry as to the actual sending or receipt of the email. The Tribunal reasons proceeded on the basis that the Applicant did make such a claim in an email some six days after the departmental interview. The relevant issue was that he had not explained why he would not have mentioned this claim in his protection visa application or in the departmental interview, plus the inconsistency with what was claimed in the protection visa application.

16. No jurisdictional error is established, either in the manner contended for in the ground in the application for review or in the manner raised today in the oral submissions of the Applicant.

17. In addition, the Applicant also complained about the fact that the Tribunal made its decision on the same day as the hearing.  He claimed that he had no time to put in writing a request to the Tribunal that it check whether he had sent the email to the Department.  As indicated, I am not satisfied that the Tribunal fell into error in failing to make such an inquiry.

18. Insofar as the Applicant contended that he should have had further time to provide information or make further inquiries or ask the Tribunal to conduct inquiries, there is nothing in the transcript of the Tribunal hearing to indicate that he asked for additional time after the hearing.  The Tribunal gave the Applicant the opportunity to comment or respond (either at the hearing or to indicate if he required additional time) in relation to information it put to him about why he did not mention his claim about photographs at the interview or in the protection visa application.   In that context it said:

    If you want extra time to make your comment or response, I’ll consider your request or you can respond now.

19. The Applicant responded immediately.  There is no indication that he sought additional time from the Tribunal.

20. Moreover, towards at the end of the Tribunal hearing, the Tribunal told the Applicant that it would not make its decision immediately but:

    ...would probably make a decision today after giving everything that you’ve given me some consideration.

21. It repeated this advice before the hearing was completed.

22. There is no general obligation on a Tribunal to provide additional time after a hearing to allow an applicant to make additional comments or put additional evidence before the Tribunal. There is no evidence to suggest that the Tribunal failed to raise dispositive issues with the Applicant at the hearing. It made the Applicant aware of the dispositive issues. It put its concerns to him (including under s.424AA of the Act) and gave him an opportunity to comment or respond. He chose to respond at that time. In that context the Tribunal informed the Applicant that he could seek additional time to comment on the photographs “issue” (which is now the issue of concern to the Applicant).  He did not seek such additional time.   There was no obligation on the Tribunal to ensure that additional time was available after the hearing, particularly as it had informed the Applicant that a decision was likely to be made that day and the Applicant had not sought additional time.

23. I am not satisfied that the Tribunal fell into jurisdictional error in proceeding in the manner in which it did to make its decision on the day of the hearing, whether by a denial of a meaningful opportunity to afford the Applicant the hearing required under the Act or in the meeting the requirements of s.424AA of the Act or, more generally, that there was any denial of procedural fairness by the Tribunal.

24. As no jurisdictional error has been established on any of the bases contended for by the Applicant and as none is apparent on the material before the court, the application must be dismissed.

I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of Judge Barnes

Date: 24 March 2016