SZVXE v Minister for Immigration
[2017] FCCA 1271
•22 June 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZVXE & ORS v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 1271 |
| Catchwords: MIGRATION – Migration Act 1958 (Cth) – Refugee Review Tribunal affirms decision of delegate not to grant protection visas to the applicants – application for judicial review – applicants seek to rely on tender of post-Tribunal hearing evidence – not admissible – Tribunal did have regard to country information but not relevant to its decision and therefore no need to mention in Tribunal decision – no procedural unfairness by Tribunal – no jurisdictional error – application for judicial review dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 430, 499 Migration Regulations 1994 (Cth) |
| Cases cited: CLI15 v Minister for Immigration [2016] FCA 1223 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 |
| First Applicant: | SZVXE |
| Second Applicant: | SZVXF |
| Third Applicant: | SZVXG |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3604 of 2014 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 4 July 2016 |
| Date of Last Submission: | 18 July 2016 |
| Delivered at: | Sydney |
| Delivered on: | 22 June 2017 |
REPRESENTATION
| The Applicants appeared in person through the First Applicant. |
| Counsel for the Respondents: | Mr J Hutton. |
| Solicitors for the Respondents: | Australian Government Solicitor. |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
The Application and the Amended Application respectively filed in this Court on 23 December 2014 and 13 March 2015 are dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3604 of 2014
| SZVXE |
First Applicant
| SZVXF |
Second Applicant
| SZVXG |
Third Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
In this proceeding the Applicants are citizens of Bangladesh and are as follows (collectively the Applicants):
a)the First Applicant is aged 42 years, having been born on 3 January 1974;
b)the Second Applicant is the wife of the First Applicant and is aged 34 years, having been born on 2 August 1982; and
c)the Third Applicant is the daughter of the First and Second Applicants and is aged 8 years, having been born on 25 September 2008.
By Amended Application filed in this Court on 13 March 2015 they seek to quash and have redetermined a decision of the Second Respondent, the Administrative Appeals Tribunal, dated 28 November 2014 (at that time the Refugee Review Tribunal) (Tribunal) which affirmed the decision of a Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister) dated 23 July 2013 refusing to grant to them Protection (Class XA) visas (Protection visas).
Background
The First Applicant speaks, writes and reads Bangla and English. He was born in Munshiganj District in the Dhaka Division of Bangladesh where he attended university. He arrived and has substantially remained in Australia since 19 November 1998, initially on a Student (Subclass TU) 560 visa to pursue his studies. He returned to Bangladesh to visit his ill mother on 16 July 2001 and returned to Australia on 10 August 2001. He departed Australia for Bangladesh a second time on 13 March 2006 while holding a Higher Education Sector (Subclass TU) 573 visa (TU 573 visa) to marry his wife, the Second Applicant, and returned to Australia on 23 April 2006. The First Applicant’s TU 573 visa ceased on 2 May 2008.
The Second Applicant arrived in Australia on 27 November 2006 after marrying the First Applicant.
The Applicants applied for Protection visas on 30 October 2012 (Protection visa application). Only the First Applicant made specific claims to protection, whereas the Second and Third Applicants applied as family members dependent upon the claims of the First Applicant.
In the Protection visa application the First Applicant claimed that he was a member and supporter of the Bangladesh Nationalist Party (BNP). He claimed that recent country information suggested that members of this group were being targeted by the Awami League (AL) in Bangladesh and that he feared serious harm due to his political opinion should he return there. He further claimed that he feared that he would not get adequate protection from the local law enforcement authorities in Bangladesh due to the political power wielded by the AL. He claimed that all of this would remain true for any part of Bangladesh.
Ultimately, the First Applicant’s claims for protection can be summarised as having been based in substance on the following grounds:
a)He is a BNP member and supporter who had held the position of Joint Secretary for the Munshiganj District in Bangladesh and had done election work on behalf of the BNP;
b)BNP supporters and members face extortion and harm due to their political opinion from AL members and supporters; and
c)he also faced harm if he returned to Bangladesh because he would be perceived as a wealthy person having lived in Australia for a lengthy period of time.
Relevant Criteria and Law for a Protection Visa
The relevant criteria and law concerning the grant of a Protection visa were recently and conveniently summarised by Burley J in the Federal Court of Australia in CLI15 v Minister for Immigration [2016] FCA 1223 at [34] - [41] as follows:
[34]The Act provides for different classes of visa, one of which is a protection visa under section 36. A protection visa may be granted if the criteria in subsection 36(2)(a) are met, namely, where the Minister is satisfied that the person is a person to whom protection obligations are owed under the Convention relating to the Status of Refugees 1951, as amended by the Protocol relating to the Status of Refugees 1967 (Refugee Convention). Article 1A(2) of the Refugee Convention provides, that a refugee is a person who, relevantly:
... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or particular 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.
[35]A fear of harm is “well-founded” for the purpose of subsection 36(2)(a) of the Act when there is a “real substantial basis for it”, even where the chance of the object of the fear eventuating is less than 50 per cent. A fear of harm is not “well-founded” if it is merely assumed or speculative; Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559 at [48] (Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ).
[36]Subsection 36(2)(aa) provides that a criterion for a protection visa is that the applicant for the visa is:
A non-citizen in Australia (other than a non-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; ...
[37] A person who is not a citizen of Australia is a “non-citizen”.
[38]Section 36(2)(aa) recognises that a non-citizen who is not entitled to a protection visa because he or she is not a refugee may nevertheless be entitled to protection in Australia under the obligations owed by Australia to afford protection, including under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984 and the International Covenant on Civil and Protection Rights 1966; Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; (2013) 210 FCR 505 (SZQRB) at [70] and [100] (Lander and Gordon JJ), and [300] and [313] (Besanko and Jagot JJ).
[39]The proper test is whether there is a “real chance” that an applicant will suffer “significant harm” if returned to her or his country of origin: SZQRB at [242] – [246] (Lander and Gordon JJ, with whom Besanko and Jagot JJ agreed at [297] and Flick J at [342]).
[40]Subsection 36(2A) in turn prescribes the circumstances in which a non-citizen will suffer significant harm as being if:
(a) the non-citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non-citizen; or
(c) the non-citizen will be subjected to torture; or
(d) the non-citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non-citizen will be subjected to degrading treatment or punishment.[41]The phrase “significant harm” does not bear its ordinary and natural meanings. Its meaning is limited to that defined by section 36(2A); SZTMC v Minister for Immigration and Border Protection [2015] FCA 1282 (SZTMC) at [10] (Perry J). It is apparent from this definition that a requirement that a person suffer significant harm imposes a high threshold; SZTMC at [10].
Decision of the Delegate
By her Decision Record of 23 July 2013 the Delegate refused to grant Protection visas to the First Applicant and by extension the Second and Third Applicants as members of his family unit, as she was not satisfied that Australia had protection obligations to the First Applicant under s.36 of the Migration Act 1958 (Cth) (the Act) and cl.866.221 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).
The First Applicant told the Delegate that when he came to Australia he had planned to stay here as he believed that following the end of his studies he would be able to continue towards working in a career in Australia. He explained that he had ceased his studies in Australia because he had married and had a family to take care of. He told the Delegate that he did not want to be involved in politics but just wanted to care for his family.
The Delegate was satisfied that the First Applicant would not be considered to hold a political profile in Bangladesh which would subject him to arrest or harm from the government. She took into account the First Applicant’s delay in lodging a Protection visa application between 2 May 2008 when his Student visa had ceased and 30 October 2012 when he made his Protection visa application as a factor which suggested that the Applicant did not have a strong fear for his personal safety or future well-being in Bangladesh. Overall the Delegate was not satisfied that there was a real chance that the First Applicant would be persecuted in Bangladesh for Refugees Convention reasons or that under the complementary protection ground there was a real risk that he would suffer significant harm in Bangladesh if he were to return. The Delegate also considered that in any event, the First Applicant could relocate to another city in Bangladesh if he did not wish to return to Munshiganj.
Tribunal Hearing and Decision Record
The Applicants applied to the Tribunal on 7 August 2013 for review of the Delegate’s decision.
The First Applicant attended a hearing before the Tribunal on 2 May 2014 together with his registered migration agent to give evidence and present arguments.
The Tribunal’s account of the First Applicant’s evidence at the hearing is set out at [15]-[18] of its Decision Record. The Tribunal stated at [16]:-
The applicant fears the Awami League. He claimed he was attacked once but did not face serious injury. He testified that he became a supporter in 1996 or 1994 of the BNP but could not recall. He became secretary of the student wing or the youth wing but then indicated he was joint secretary of the youth wing. He participated in meetings and activities and processions. He was mainly a member of the youth league. He has not been involved with the BNP in Australia regularly. He has not joined the BNP in Australia as he has responsibilities. He fears return because everyone knows him in his city. He claimed that he would be involved in future in politics and would be victimised. People will discuss his past activity if he returns. He further fears that he may face extortion for reasons of having been in Australia for a lengthy period of time. He is known to the Awami League. He claimed to have attended a BNP meeting in Australia one year before his Tribunal hearing. He has gone two or three times.
In the result, the Tribunal found that Australia did not owe protection obligations to the First Applicant under either the Refugees Convention criterion in s.36(2)(a) of the Act or the complementary protection criterion in s.36(2)(aa) and affirmed the Delegate’s decision not to grant a Protection visa to the Applicants.
In short the Tribunal in its Decision Record was prepared to “accept at face value” that the First Applicant was a BNP supporter in the 1990s and an executive member in the Munshiganj District in Bangladesh and found in [21] of its Decision Record as follows:-
The Tribunal is prepared to accept at face value that the applicant was a BNP supporter in the 1990s and that he was an executive member in his district. The applicant’s political activities are now remote in time. He claimed to have returned to Bangladesh twice since his initial departure in 1998, and had no difficulty in entering or exiting Bangladesh. The applicant is not and has not been politically active for many years. There is an absence of evidence of political activity in Bangladesh upon his returns there. He claims to have attended a few BNP meetings in Australia but to have not been actively engaged in the BNP for reasons of having other commitments, namely study and family. His family in Bangladesh are not politically active. He has had no political profile in Bangladesh for some sixteen years now. Given this factor, and the evidence before it, the Tribunal finds that the applicant has not demonstrated that due to the strength of his political convictions, he would come to the adverse interest of any potential agents of harm in Bangladesh now or in the reasonably foreseeable future. Given this finding and his current non-existent political profile in Bangladesh, the Tribunal finds that there is no real chance that the applicant would face persecution for reasons of political opinion in Bangladesh.
Further, the Tribunal found on the evidence before it that the First Applicant had not accumulated wealth in Australia and that there was no real chance that he would be perceived as a wealthy former expatriate if he and his family were to return to Bangladesh or that this would give rise to a real chance of serious harm or substantial grounds for believing he would suffer significant harm in Bangladesh – see [22] of Decision Record.
In [14] of its Decision Record, the Tribunal recorded that the First Applicant had told the Delegate that on each occasion when he had returned to Bangladesh in 2001 and 2006 (see [3] above), he had departed Bangladesh and returned to Australia without difficulties and that the Delegate further noted that there was a lengthy delay in the First Applicant lodging his Protection visa application.
Grounds of Attack on Tribunal Decision in this Court
The Ground in the Amended Application filed in this Court on 13 March 2015 is as follows (providing numbers for the sake of clarity and omitting reproduced extracts of [22] and [23] of Decision Record):
The applicants claim that the Refugees Review Tribunal made a jurisdictional error and error law when making the decision. Thereof the applicants appeal to the Honourable Court to directing the Migration Review Tribunal to rehear the applicants’ Review Application according to law.
Particulars
(1)The Tribunal did not go into the actual point of political killing by Bangladesh Awami League and his various corrupt police forces inducing RAB (Rapid Action Battalion) to the BNP activists and low profile workers like me which compelled to seek protection from Australian Government. The Tribunal has focused my situation as a wealthy expatriate returning in to Bangladesh could be harmless as the law and order authorities of the country will provide me security from muggers and kidnappers these sorts comment are wrong and unfortunate.
(2)Since I came to Australia 1998 for further education not making money on a business visa, work visa or so on. My personal situation did not allow me continuations for further education in Australia when my application for skill visa was unsuccessful. I was supposed to go back to my country accordingly, but due to membership and an activist of the Bangladesh National Party (BNP) I had had real chance of fear of persecution by the Bangladesh Awami League who is illegally holding power of the democratic nation sine since 5th January 2014.
(3)The Tribunal comment is wrong and out of context and Tribunal did not even perused my application of the Protection visa and supporting documents those submitted to the DIBP and with the RRT. The Tribunal even did not make any search on political situation of the country, kidnapping of the BNP activists and extrajudicial killing of low profile BNP members and activists like me by secret police, RAB and AL goons and perpetrators. The local police and RAB in my district know that I am involved in BNP polities. Thereof I have imminent fear of arrest then kill by the police officer or RAB if I go back to Bangladesh until political situation is changed. When my application for Review with the Refugee Review Tribunal was heard on 28/11/14 the Tribunal did not know that there was a fake national election held 5th January 2014 and the election 154 Members of Parliament from BAL elected without any vote. Since then RAB and Police kidnapped and killed hundreds of BNP activists in encounter or crossfire and 29,262 of BNP and its alliances activists are in detention.
(4)These were huge condemnation, by UN, and UN Human Right Organisation and EU including Australia against extrajudicial killing by the Hasina Regime. The Tribunal is unfair and made a wrong issue in my cause which led to error of law and jurisdictional error, thereof the Tribunal decision should be set aside and the application should be sent back to the RRT for rehearing.
(5)The Tribunal Member comment in this paragraph is irrelevant against of political situation in Bangladesh and I do believe that this remark is a bias favour for 1st defendant. Before hearing of my review application hundreds of BNP activists especially from Jubodall and the student wing were killed by the AL special police force and RAB. Since December 26 2014 to January 27, 2015 there are 242 BNP activists and leader have been killed and 29,262 are arrested. And the extrajudicial killing and mass arresting of the opposition party activists are continuing until to date.
(Applicant’s country information references omitted.)
(6)Thereof, the Tribunal member comment “Now or in the reasonably foreseeable future if he returns to Bangladesh” is amount bias in favour of the 1st defendant.
(7)The Tribunal Member was pre-occupied in his mind before hearing to dismiss my Review Application which led to an error of law and jurisdictional error thereof the Tribunal decision should be set aside.
(8)The Tribunal’s decision is not sustainable in the eye of the law as the decision was made on the basis of wrong information and interpretation of the applicable law and regulations.
(9)As an applicant I am claiming that at the time of making decision the Tribunal acted without jurisdiction or in excess of jurisdiction in that it failed to take into account relevant considerations and took in to account irrelevant considerations and fairness thereof the Tribunal decision should be set aside.
The Honourable of High Court indicates that:
(10)Law relating to jurisdictional error, the High Court of Australia (discussed in Lu v MIMIA (2005) FCAFC240 considered what would amount to jurisdictional error and stated that: “As was said in Craig v South Australia, if an administrative tribunal (like the RRT Tribunal) falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the Tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the Tribunal which reflects it.”
The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law.
(The correct reference is Minister for Immigration v Yusuf (2001) 206 CLR 323 (Yusuf) at 351 [82].)
(11)In summing up, I would like say that the Tribunal did not follow the law of procedural fairness and, in so doing, made jurisdictional error. The procedures that were required by the Migration Act or the Regulations to be observed in connection with the making of the decision in fact were not observed.
(12)The Tribunal ignored the merits of the claim in my protection visa application and the Tribunal gave the decision on the basis of wrong information provided by the Delegate of the Minister and did not make any investigation though the Tribunal was qualified to do it.
(13)The Tribunal failed to take relevant consideration into account in exercising its power to determine that the delegate’s decision was wrong.
(14)The Tribunal decision was unjust and was made without taking in to account the full gravity of the circumstances and consequences of my review application.
(15)The decision made by the Tribunal is not justifiable by the assumption which used in the decision. That the information used by the 2nd Respondent indicates a clear misinterpretation of the Migration Regulations.
(16)Thereof the applicants plea to the Honourable Court directing to the Migration Review Tribunal to rehear the applicants’ application according to law (Migration Act 1958 and Migration Regulations 1994).
At the hearing in this Court, the First Applicant made oral submissions which invoked a merits review which is not available in this Court.
Applicant’s Tender of Evidence
The Applicant also sought at the hearing to read two affidavits which annexed country information regarding the political situation in Bangladesh.
As to the First Applicant’s affidavit of 13 March 2015, I provisionally admitted the Aljazeera Report and Amnesty International Report referred to in [2] subject to weight and also on the basis that the Minister as a model litigant would inform me subsequent to the hearing whether or not those reports had been before the Tribunal. I was later informed by the Minister’s solicitor that the two reports were not before the Tribunal.
As to the First Applicant’s affidavit of 19 February 2016, I refused leave to the First Applicant to read [3] - [5] and the country information referred to in those paragraphs because that country information post-dated the Tribunal hearing. I allowed the First Applicant to provisionally read [2] and [6] because the country information sought to be put in evidence by those paragraphs pre-dated the Tribunal hearing, on the basis that I would give it such weight as it deserved and that the Minister’s legal representative would advise me whether this country information was before the Tribunal. In the result, the Minister’s solicitor subsequently advised that this country information was not before the Tribunal in the same precise form as annexed to the affidavit of 19 February 2016 but that the country information referred to in [2] had been substantially before the Tribunal in similar form.
In my view, the First Applicant is not entitled to rely on the country information which he sought to tender in evidence which was not before the Tribunal. This is because it is not open for an applicant in a proceeding such as this to ask the Court to admit new evidence for the purpose of inviting the Court to disagree with a factual conclusion reached by the Tribunal. Fresh evidence cannot be admitted in this Court in order to establish that an opposite result would have been reached if the new evidence had been made available to the Tribunal: Ozberk v Minister for Immigrationand Multicultural Affairs (1998) 79 FCR 249 per Marshall J; MZXHY v Minister for Immigrationand Citizenship [2007] FCA 622 at ([8]) per Nicholson J; SZNOE v Minister for Immigrationand Citienship [2012] FCA 96 at ([56]-[57]) and SZJBD v Minister for Immigrationand Citizenship (2008) 102 ALD 622 at 626 ([24]) per Siopis J.
In this Court the function of judicial review is to ascertain whether there is any legal error which vitiates the decision of the Tribunal. The Tribunal as the primary decision maker has the responsibility for determining the questions of fact or the merits of the application for review being considered by it on the materials which it has before it: see MZXLD v Minister for Immigrationand Citizenship [2007] FCA 1912 at ([10]-[11]) per Gordon J and Minister for Immigration and Border Protection v Singh [2016] FCA 575 at ([51]) and ([58]) per Edelman J.
Of course, post-Tribunal evidence in relation to a question of law as distinct from a question of fact, or alleged bias or procedural unfairness, may be an exception to this rule and may be admitted, depending upon the particular circumstances, as the above authorities indicate.
The only purpose for the Applicant’s tender of the new country information in the context of this case is to attempt to argue with the merits of the Tribunal’s decision.
This is not a legitimate course. In NAHI v Minister for Immigrationand Multicultural and Indigenous Affairs [2004] FCAFC 10 the appellant applicants for a protection visa sought to rely on country information developments in relation to the peace process in Sri Lanka since the relevant Tribunal’s decision, in an attempt to demonstrate that the peace process was more likely to fail than the Tribunal had found. The Full Court of the Federal Court of Australia comprised of Gray, Tamberlin and Lander JJ held that this was impermissible, stating at [15] as follows:
The appellants’ submission is tantamount to saying that the Tribunal was wrong on the facts, and the Court should correct its factual error… Subsequent events cannot be used to falsify its finding.
Consideration
I interpret the gravamen of the Ground relied upon in this proceeding by the First Applicant in attacking the decision of the Tribunal to be:-
a)first, that the Tribunal failed to consider, refer to and take into account relevant material, namely the body of country information provided by the First Applicant’s previous lawyers in their letters of 29 January 2013 and 28 March 2013 to the Department of Immigration and Border Protection, or perhaps failed to consider and take into account any country information at all; and
b)the Tribunal was biased in favour of the Minister and did not follow procedural fairness, thereby committing jurisdictional error.
Country Information
The core complaint in relation to this part of the Ground appears particularly in the paragraphs which I have numbered [1] and [3] reproduced in [19] above. The relevant parts are as follows:-
(1)The Tribunal did not go into the actual point of political killing by Bangladesh Awami League and his various corrupt police forces inducing RAB (Rapid Action Battalion) to the BNP activists and low profile workers like me which compelled to seek protection from Australian Government…
(3)The Tribunal comment is wrong and out of context and Tribunal did not even perused (sic) my application of the Protection visa and supporting documents those submitted to the DIBP and with the RRT. The Tribunal even did not make any search on political situation of the country, kidnapping of the BNP activists and extrajudicial killing of low profile BNP members and activists like me by secret police, RAB and AL goons and perpetrators…
As I have recorded in [29(a)] above, the First Applicant’s previous lawyers submitted an extensive body of country information prior to the Delegate’s decision. She specifically referred to that country information in her decision.
Of course, as the passage from [82] of Yusuf (included in the Applicant’s Particulars and extracted at [19] above) makes clear, a Tribunal will fall into jurisdictional error if it ignores relevant material and the Tribunal’s exercise or purported exercise of power is thereby affected. However, in this context, “relevant material” means material that the decision-maker is bound by statute or by law to take into account: Rezaei v Minister for Immigration and Multicultural Affairs [2001] FCA 1294 at [57] per Allsop J (as he then was).
The Tribunal’s Decision Record does not refer to or footnote any specific country information. Relevantly explicit and implicit references to country information in the Decision Record are as follows:-
a)at [8] of the Decision Record the Tribunal stated as follows:-
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian – Complementary Protection Guidelines and PAM3 Refugee and humanitarian – Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
I pause to interpose that I have no reason to think that the Tribunal was derelict in its duty of complying with the requirements referred to in this passage of its Decision Record.
b)at [12] the Tribunal referred to the variety of documents and extensive submissions filed in support of the Protection visa application;
c)at [14] the Tribunal summarised certain factual matters in the Delegate’s decision, which had given consideration to country information and referred to the large body of country information material before her; and
d)at [24] the Tribunal recorded that it had considered the evidence and claims put forward by the First Applicant.
In the circumstances, I do not consider that a fair reading of the Decision Record would indicate that the Tribunal ignored country information. To the contrary, as I have outlined above, at [8] of its Decision Record the Tribunal recorded that it was required to take into account any country information assessment prepared by the Department of Foreign Affairs and Trade to the extent that any such assessment was relevant to the decision under consideration. At [12] the Tribunal referred to the variety of documents and extensive submissions filed in support of the Protection visa application and at [24] the Tribunal explicitly stated that it had considered the evidence and claims put forward by the First Applicant. Further, it is clear from [14] that it had considered the Delegate’s decision of which it was conducting a merits review.
In such circumstances this is not a case where the Tribunal’s omission to refer to and analyse country information material indicates that the Tribunal did not consider that material at all: Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431. Rather, as discussed below, the omission to identify and analyse country information indicates that the Tribunal did not consider it to be material to its decision.
It is clear law that the choice and selection of country information and the weight given to such information is a factual matter for the Tribunal and is not an issue for review in this Court: see SZLYT v Minister for Immigration and Citizenship [2009] FCA 76 at [20] per Collier J and WZAVX v Minister for Immigration and Border Protection [2016] FCA 411 at [32].
To similar effect in MZZZW v Minister for Immigration and Border Protection (2015) 234 FCR 154 at 159 [19] the Full Court of the Federal Court comprised of Tracey, Murphy and Mortimer JJ approved the statement of law of the primary Judge below as follows:-
It also noted (at [21]) it was a matter for the Tribunal what country information it obtained and what weight it gave that country information, referring to the reasons of the Full Court of this Court in NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11].
Further, pursuant to Clauses 2 and 3 of Ministerial Direction 56 (referred to in [8] of the Decision Record which was extracted at [33(a)] above) made under s.499(1) of the Act, the Tribunal was only obligated to take account of the specified “Refugee and humanitarian – Complementary Protection Guidelines” and “Refugee and humanitarian – Refugee Law Guidelines” and DFAT country information assessments where relevant to the making of the Tribunal’s decision. Clause 3 of Ministerial Direction 56 in relation to country information is as follows:
3.Where the Department of Foreign Affairs and Trade has prepared a country information assessment expressly for protection status determination purposes, and that assessment is available to the decision maker, the decision maker must take into account that assessment, where relevant, in making their decision. The decision maker is not precluded from considering other relevant information about the country.
(emphasis supplied)
These provisions were given detailed consideration by Perram J in SZTMD v Minister of Immigration and Border Protection [2015] 150 ALD 34 (SZTMD). As in this case, in SZTMD the Tribunal in its Decision Record did not go further than including a paragraph similar to [8] of the Tribunal’s Decision Record. It was submitted in SZTMD that this silence in connection with country information indicated that the Tribunal had not turned its mind at all to country information. His Honour rejected the Applicant’s argument in SZTMD and concluded that the Tribunal had addressed itself to the relevance of country information and decided that it was irrelevant. His Honour said at [20]:
20.Although the applicant did not directly raise the issue, I would indicate that I accept Mr Hume’s submission that it was for the Tribunal to form an opinion as to what was relevant under cll 2 and 3 and what was not. The usual way of reading provisions such as these clauses is that they are construed as requiring the formation by the decision-maker of an opinion on the standard (here, relevance) imposed; that is to say, they are not generally construed as requiring the existence of a jurisdictional fact: see, for example, Australian Heritage Commission v Mount Isa Mines Ltd (1995) 60 FCR 456 at 466–468; 133 ALR 353 at 362–364; 39 ALD 262 at 270–272 (FC). Consequently, there is no occasion to consider whether this Court is of the opinion that there were relevant parts of the guidelines or country information. It is the Tribunal’s views on relevance which matter, not those of this Court.
His Honour in SZTMD applied the inference discussed at [69] of Yusuf, namely that the Court is entitled to infer that a matter not mentioned in the Tribunal’s reasons was not considered by it to be material for the purposes of the written statement of its decision on review as required by s.430(1) of the Act.
I consider that the Tribunal has approached its consideration of the First Applicant’s Protection visa claim similarly to that of the Tribunal decision which was the subject of consideration in SZTMD. The Tribunal in this case accepted at face value that the Applicant had been a BNP supporter in the 1990s and an executive member in his district in Bangladesh. However, his political activities were clearly remote in time and since his initial departure from Bangladesh in 1998 he had neither experienced difficulty in entering or exiting Bangladesh nor been politically active for many years. The Tribunal came to the view that he had not possessed any political profile in Bangladesh for some 16 years and that he had failed to demonstrate to the satisfaction of the Tribunal that he would come to the adverse interest of any potential agents of harm now or in the reasonably foreseeable future.
On the basis of these circumstances, the Tribunal was also of the view that there was no real chance that he would face extortion because of studying abroad or that his family circumstances were such that he would be perceived as a wealthy former expatriate if he and his family were to return to Bangladesh. I record that the only reference and submission which I have been able to find in the country information submitted by the Applicants’ lawyers to the Tribunal in support of this ground as a claim for protection (as summarised in [7(b)] above) was merely as appears in [194]-[196] of the letter dated 29 January 2013 (referred to in [29](a) above) as follows:
Particular Social Group (1): Bangladeshi who has lived in Australia for a lengthy period and perceived as a wealthy person.
[194]We submit that Bangladeshi who has lived in Australia for a lengthy period is perceived as a wealthy person is a particular social group. The characteristic of Bangladeshi stayed in Australia for a lengthy period perceived as a wealthy person is the immutable and common characteristic of this group.
[195]Reports indicate that human rights abuses continued in Bangladesh with the passive support of the authorities.
[196]Accordingly, we submit that the applicant will face a real chance of persecution in Bangladesh. On the basis of this membership of this social group.
The Tribunal appears to have been satisfied that the First Applicant upon returning to Bangladesh would be in no different position or plight from any other general member of the population of Bangladesh. Such being the case, I infer that the country information before the Tribunal was not considered by it to be material or relevant to its decision and therefore there was no need to specifically refer to it in its Decision Record.
I cannot discern that the Tribunal’s view that country information was not material and not relevant in the circumstances of this case was illogical or irrational in a legal sense or lacking an intelligible justification. Furthermore, the Tribunal did not ignore relevant material which affected the exercise of its power in affirming the decision of the Delegate and consequently did not fail to perform its statutory task under the Act.
Bias and Procedural Unfairness
The Applicant put into evidence a transcript of the Tribunal hearing of 2 May 2014 and referred me to page 10 of that transcript as the portion which he relied upon in this proceeding. In my view, nothing on that page supports any claim of bias or breach of the rules of procedural fairness.
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 the 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]).
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 as follows:
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 Services 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 in question: Michael Wilson & Partners Ltd v Nicholls & Ors (2011) 244 CLR 427 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, as is necessary on an enquiry about actual bias: Michael Wilson & Partners v Nicholls at [32].
In my opinion there is no basis for any claim by the First Applicant that he has suffered from actual bias or that there could be any reasonable apprehension of bias in connection with the Tribunal’s decision.
First, the face of the Tribunal’s Decision Record does not indicate or demonstrate any prejudgment or 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].
Second, neither the Decision Record nor page 10 of the transcript of the Tribunal hearing lend any support to a contention that the Tribunal member favoured or was partial to the Minister.
Accordingly, there is no evidence to support a submission that the Tribunal did not allow procedural fairness to the Applicants.
Conclusion
In my view, jurisdictional error is not established by anything put by the First Applicant either orally at the hearing in this Court or under the Ground relied upon in the Amended Application. The Application by the Second and Third Applicants for judicial review in this Court depended upon the First Applicant being successful and therefore his failure to establish jurisdictional error means that the Amended Application must be dismissed.
I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Associate:
Date: 22 June 2017
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